May 20, 2009

For the past few years the Minnesota Pollution Control Agency (MPCA) has emphasized compliance with stormwater controls required at construction sites. The MPCA has issued a general permit that applies to construction sites statewide. Owners and contractors are required to undertake various actions to prevent or minimize stormwater flows off of construction sites with exposed soils. Failure to obtain a permit or failure to comply with the requirements of the permit can lead to an inspection and if noncompliance is noted administrative orders and penalties. Information about the MPCA’s general stormwater permit for construction sites can be found at: http://www.pca.state.mn.us/publications/wq-strm2-03.pdf

Paying attention to compliance is important.  Failure to comply may impact a business’ bottom line. As is detailed below, over the past two years the MPCA has initiated nearly 100 enforcement actions and collected over $700,000 in penalties for stormwater related violations. Please see the article on the “What’s New” page for a copy of the table detailing these stormwater cases.http://www.enviroattorney.net/whats.php

The application for a general permit in the construction stormwater program requires both the landowner and the contractor (operator) to certify that they will comply with all terms of the general permit. The requirements are very extensive and include the following: 1) installation of temporary and permanent sedimentation basins, 2) silt fencing on the perimeter of the entire site, 3) installation of rock driveway entrances to prevent tracking into streets, and 4) prompt mulching/covering of exposed soils near “waters of the state” (including ditches, streams, and temporary and permanent basins) so that the area is covered or seeded. The owner and operator are required to prepare a site-specific stormwater pollution prevention plan (SWPPP) that comprehensively address all stormwater compliance measures. An application for a general construction stormwater permit is found at: http://www.pca.state.mn.us/publications/wq-strm2-57.doc

The MPCA conducts inspections randomly or in response to citizen complaints. When the MPCA discovers conditions they believe constitutes a violation of the general permit, the MPCA may issue 1) a letter of warning, 2) a notice of violation or 3) an alleged violations letter. The MPCA typically asks the regulated party to undertake and document corrective actions and offers an opportunity to the regulated party to explain the conditions which were cited as alleged violations.

In the case where the MPCA determines that the alleged violations are either serious or repeated, the MPCA may choose to escalate its enforcement response and take further action. If the MPCA seeks to collect a penalty, MPCA staff will meet and decide what type of follow up action is appropriate.  The MPCA may choose to issue an Administrative Penalty Order (APO) which may include a penalty of up to $10,000 per inspection. A party who receives an APO may pay the penalty and undertake specified corrective actions or, if the party contests or disputes the MPCA’s actions it may seek review of the APO in district court or before an Administrative Law Judge (ALJ).

In what it deems to be serious cases of alleged violations, the MPCA may decide to propose a Stipulation Agreement. A Stipulation Agreement is essentially a settlement of alleged violations to avoid litigation. The State of Minnesota may seek civil penalties from a district court judge by filing a complaint in district court. Because of the cost and time required to file a lawsuit and litigate a matter to its conclusion, the MPCA favors administrative settlements to resolve cases of alleged violations. In a Stipulation Agreement, the MPCA requires a payment of a civil penalty and the completion of specified corrective actions. In Stipulation Agreements penalties are subject to negotiation and typically are in excess of $10,000.

From January 1, 2007 to March 31, 2009 the MPCA has conducted hundreds of inspections of construction sites. Hessian & McKasy attorney Joseph Maternowski prepared a compilation of these enforcement actions.  During this period of time the MPCA settled 90 cases involving stormwater penalties and collected a total of $707,891. The average penalty that was collected per case was nearly $8,000.

Owners of sites that are being developed and contractors who are involved with moving soils and construction projects of all types should make themselves aware of applicable permits, permit conditions and regulations that apply to their projects. For information as to the obligations of owners, the MPCA has prepared a Fact Sheet that can be found at:http://www.pca.state.mn.us/publications/wq-strm2-14.pdf.

At Hessian & McKasy’s Environmental Law Attorney Practice Group we assist clients on complying with the terms of the general permit covering stormwater at construction sites as well as assisting clients in responding to MPCA enforcement actions. For information related to legal service packages that we offer to our clients, please visit: http://www.enviroattorney.net/sample-price-list.php. The information provided in this blog entry is general in nature and should not be construed as legal advice. Please see the Disclaimer statement below. If you have questions about compliance with the stormwater permit or other compliance issues, we encourage you to contact competent environmental counsel of your choice.

The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy. P.A.

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