September 9, 2011

One of the Minnesota Pollution Control Agency’s (MPCA’s) newest permitting programs is an effort to control and manage stormwater discharges from industrial facilities. Thousands of business and locations across Minnesota are potentially subject to permit coverage. Over the course of the past year the MPCA has required facilities to file permit applications under a general permit or, where appropriate, file a no exposure certification. We have been working with many of our clients, plant managers, in house environmental staff and outside environmental consultants to assist in making permit related determinations.

Minnesota businesses need to be aware of an important new development: The MPCA is now changing its focus from bringing companies into the industrial stormwater permitting program to conducting inspections and, when violations are found, taking enforcement actions.

On September 6, 2011 Ken Moon, Supervisor of the MPCA’s Water Quality Compliance and Enforcement Unit issued a bulletin putting facilities that are subject to industrial stormwater permitting requirements on notice that enforcement is now a top MPCA priority. According to Mr. Moon, the MPCA is collaborating with the U.S. Environmental Protection Agency (EPA) and partnering with county and watershed staff to enhance inspections statewide. The MPCA is serious about checking compliance. The MPCA is conducting aerial over flights and coordinating its enforcement efforts with solid and hazardous waste, air quality and wastewater staff from the MPCA to bring heightened focus on industrial stormwater compliance.

Why is this important to businesses, especially to those companies or other operations with industrial stormwater permits or those who have filed a no exposure certification?

With more resources in the field, the MPCA will log more complaints. The MPCA will focus its staff resources on follow up inspections. For example, if county or watershed staff receive a citizen’s complaint of turbid water in a ditch, stream or wetland, that could trigger a referral to the MPCA and an inspection of any area businesses that may be a source of stormwater runoff. An inspection necessarily brings a high level of scrutiny over a company’s operations. The MPCA has developed a detailed Industrial Stormwater Inspection Checklist Form that can be found at:www.pca.state.mn.us/index.php/view-document.html?gid=16121. The MPCA will review every aspect of permit compliance. If the MPCA finds violations of any kind, it will order any necessary corrective actions. Most importantly – for the bottom line – there is the potential for an enforcement action and penalties to follow.

MPCA Supervisor Moon reports that the MPCA is targeting unpermitted facilities that should be subject to permit coverage but lack permits. The MPCA will also be aggressively pursuing cases where there are discharges to Minnesota water resources. He notes that the MPCA plans to use the range of its enforcement tools – letters of warning, notices of violation, administrative penalty orders and stipulation agreements – to address alleged violations, assess civil penalties and require corrective actions. For cases involving serious violations, the MPCA reserves the right to make a referral to the EPA.

In the past year, the MPCA has dedicated its efforts to training, education and public outreach.The MPCA notes that it has worked with partners (such as the University of Minnesota) to sponsor training and that the MPCA has developed a robust industrial stormwater website which contains links to training videos about where and how to monitor (sample), numerous fact sheets, guidance manuals (everything from applications to SWPPPs), and compliance calendars. A link to the MPCA’s website can be found at: http://www.pca.state.mn.us/index.php/water/water-types-and-programs/stormwater/industrial-stormwater/industrial-stormwater.html. Now the MPCA is taking a different approach. Businesses need to be prepared.

In addition to administrative and civil enforcement actions, the MPCA has the authority to refer cases to County Attorneys or to even to the U.S. Attorney’s Office for possible criminal prosecution. Although criminal prosecutions are not common, a criminal investigation and possible charges can be devastating to a business and its owners. Mr. Moon’s enforcement bulletin refers to a Mankato, Minnesota case where in June, 2010 a carpet cleaning company was allegedly caught discharging wastewater into a stormwater system which resulted in an untreated discharge to a Minnesota water resource. According to the MPCA, the Mankato City Attorney has filed a gross misdemeanor case under Minnesota’s environmental crimes statutes. A trial is scheduled for September 2011.

How can businesses be prepared for an inspection and minimize the chances of a finding of a violation?

Given the high potential for an inspection, it would be prudent to consider conducting a compliance audit. An audit can assess a facility’s compliance status. If it is determined that conditions need to be assessed, corrective actions can be implemented before an inspector arrives. If an audit is conducted under attorney client privilege, findings can be protected.

The environmental law attorneys at Hessian & McKasy provide advice and counsel to clients on arange of environmental matters. Our clients range from large manufacturing operations and Fortune 500 companies to small business owners, local units of government and individuals. We provide legal consultations on matters of all types. We assist clients in responding to inspections, addressing alleged noncompliance and auditing compliance. We serve clients in Minnesota, Wisconsin, Iowa, South Dakota, North Dakota and across the country.

For more information on industrial stormwater permitting, responding to government inspections and other compliance related matters, please contact Joseph Maternowski atjmaternowski@hessianmckasy.com For information about the industrial stormwater permitting program please see our past blog posts: http://www.enviroattorney.net/blog/?post=100:,http://www.enviroattorney.net/blog/?post=83 and http://www.enviroattorney.net/blog/?post=49.

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