May 8, 2012  Minnesota has recently experienced a drought as fall rains and winter snow fall were below normal.  This month several storm fronts have crossed Minnesota, stalled out and produced heavy rains that have saturated areas of the State.  Owners and operators at construction sites across the State of Minnesota should be aware that  immediately after significant rainfall events inspectors from the Minnesota Pollution Control Agency (MPCA) routinely conduct inspections of stormwater controls at construction sites.

The MPCA’s National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) General Stormwater Permit for Construction Activity provides that a permittee must inspect its site and promptly institute appropriate corrective measures.  Silt fences must be checked so that downgradient perimeter controls remain in place.  Erosion and sediment controls must be maintained so that stormwater flows off construction sites are minimized.  If heavy rains degrade mulch and other stabilization measures that have been applied to disturbed areas of a site, repairs must be made promptly so that all areas of the project are adequately protected.  Rains may result in the temporary ponding of water on site, muddy areas and the saturation of any exposed soils.  When construction activities resume, vehicles moving through wet areas of the site may track sediment.  Rock must be placed at exits from active construction sites so that tracking of sediment to nearby roads is minimized.

In past years the MPCA has conducted inspections at sites with open permits soon after storm events.  In some cases, MPCA inspectors have shown up at work sites immediately after the skies have cleared.  The MPCA has hired additional stormwater inspectors and deployed them to the field.  It is unusual to see an expansion of Agency staff in tight budget times. The MPCA is also working with local partners including county inspectors, DNR officers and local watershed district staff to identify potentially non-compliant facilities.  The MPCA responds to complaints received from the public of discolored or turbid waters.

Once an inspection is underway the MPCA reviews site conditions, Stormwater Pollution Prevention Plans (SWPPPs), and documents (usually through photographs) what they consider to be non-compliant conditions.  Any party who holds an NPDES/SDS General Permit should be prepared for an inspection.  Because maintaining compliance with a permit and SWPPP is not easy, too often an enforcement action follows.  The MPCA has targeted stormwater compliance as an enforcement priority.  The MPCA is gearing up to enforce its new industrial stormwater permit.  For facilities that are covered, the permit requirements are quite extensive including required sampling during stormwater events.  When testing shows exceedances, corrective measures may be required.  Over the past five years, the MPCA has inspected hundreds of construction sites across the State and brought numerous enforcement actions.  In these cases, the MPCA seeks penalties for past noncompliance and where appropriate corrective action.

At Hessian & McKasy, we provide clients with advice as to permitting and enforcement actions. Often we develop audit programs that are designed to prevent violations from occurring.  When a state agency such as the MPCA has conducted an inspection and raises allegations of noncompliance, we provide representation to clients in enforcement proceedings.  We are pleased to assist clients in any way that we can.  For more information on Hessian & McKasy’s stormwater related legal services, please contact environmental law attorney Joseph Maternowski at 612-746-5754 or jmaternowski@hessianmckasy.com.   For information about stormwater compliance, please see the Minnesota Pollution Control Agency’s “Stormwater Compliance Assistance Toolkit for Small Construction Operators” found at: http://www.pca.state.mn.us/index.php/component/option,com_docman/task,doc_view/gid,7414.

Many clients ask: What will the MPCA be looking for during an inspection?  Of course, each inspector will be conducting an independent review.  Nonetheless, for ideas as to what areas of you site might receive scrutiny, please see the MPCA”s “Stormwater Construction’s Inspector’s Field Guide” that can be found at: http://www.pca.state.mn.us/index.php/component/option,com_docman/task,doc_view/gid,7417

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