What's New?
Stormwater Remains MPCA Enforcement Priority
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.
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.
Enforcement Summary Reports 2007-2009
Minnesota Environmental Institute
On Thursday, April 30th Joe Maternowski spoke at the Fifth Annual Environmental Institute, a CLE sponsored by Minnesota CLE and the Minnesota State Bar Association's Environmental, Natural Resources and Energy Law Section. Mr. Maternowski's session entitled: "The 2009 CERCLA/RCRA Case Law, Regulatory and Legislative Update." The session featured an in depth discussion of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund cases involving the cleanup of sites where hazardous substances have been released. In addition, recent significant cases under the Resource Conservation and Recovery Act (RCRA), the federal governing the "cradle to grave" management of hazardous waste were reviewed. Featured cases in the Environmental Institute session included: U.S. v. Burlington Northern & Santa Fe Ry. Co., 520 F.35 918 (9th Cir. 2008), which is currently being briefed for argument before the U.S. Supreme Court. In addition Mr. Maternowski's presentation focused on Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006), a precedent setting case involving the extraterritorial application of CERCLA. The U.S. Supreme Court denied certiorari in Teck Cominco Metals, Ltd. v. Pakootas, No. 06-1188 U.S. (1/7/2008).Stormwater Remains MPCA Enforcement Priority.
A copy of the written materials presented at the Environmental Institute are provided here.
Minnesota Environmental Assistance FY 2008 Grant Monies Available for Innovative Projects
The Minnesota Pollution Control Agency (MPCA) is seeking applications for grants to be used in developing environmentally sustainable practices. Grant monies are available to private and public entities and partnerships. Applications must fall under one of the following four focus areas:
- Preventing waste and pollution at the source.
- Creating more sustainable communities.
- Developing and expanding markets for underutilized materials.
- High impact environmental improvements.
The MPCA's Environmental Assistance Grant Program has provided over $11 million in grants since 1985. Grant monies have been used as seed money for a number of new and innovative "green" businesses. Preliminary applications are due on October 29, 2007. Information relating to grants including a request for proposals, instructions and forms can be found at www.pca.state.mn.us/grants/eagrants.html
Vapor Intrusion Poses Growing Concerns
The U. S. Environmental Protection Agency and a number of state environmental agencies, including the Minnesota Pollution Control Agency, have focused attention on vapor intrusion - the migration of toxic vapors from contaminated soil and groundwater into building structures. According to EPA and MPCA guidance documents, chronic exposure to volatile organic compounds (VOCs), including the constituents of petroleum products, even at low levels may pose health risks to building occupants. A copy of the MPCA guidance, which details procedures for assessing vapors during site investigations, is found below. Purchasers and owners of contaminated property may need to consider sampling for vapors and, if exceedances are found, consider appropriate remedial actions including active or passive venting systems.
http://www.pca.state.mn.us/publications/c-prp4-01a.pdf
U.S. Environmental Protection Agency Announces Enforcement Results
On November 15, 2006 the U.S. Environmental Protection Agency's (EPA) Region 5 announced that during the past year EPA resolved 31 enforcement actions against regulated parties and collected more than $632,000 in penalties. The cases involved alleged violations of statutes and regulations related to air, water, hazardous waste, community right-to-know and pesticides. Regulated parties agreed to undertake Supplemental Environmental Projects (SEPs) worth more than $65,000 to mitigate penalty payments. The EPA announced that during the past year it initiated 25 new cases in Minnesota. Most EPA matters originate with inspections, often with state or local partners, and are resolved through administrative or civil proceedings where parties may seek to contest findings and raise defenses.
New U. S. EPA "All Appropriate Inquiries" Regulations Apply To Real Property Transfers After November 1, 2006
As of November 1, 2006, any purchaser of real property who seeks to avoid potential environmental liability and qualify as an "innocent landowner" under federal environmental law must conduct a pre-purchase Phase I Environmental Site Assessment in conformance with new federal regulations. The U. S. Environmental Protection Agency's "All Appropriate Inquiries" regulations require a more detailed review of environmental conditions than had previously been required. The regulations direct a specialized inquiry into any past use of the subject and surrounding properties that may have resulted in soil or groundwater contamination. Moss & Barnett's Joseph Maternowski assists clients in applying the new regulations to pending real estate transactions.
More Businesses Subject to Hazardous Waste Licensing in Minnesota - June 2006
Businesses that generate hazardous waste often find that they are subject to federal, state and local regulation. This means multiple inspections and potential penalties for noncompliance. Governmental authorities are supposed to be consistent in their approach, but this is not always the case.
Hennepin County, the largest county in Minnesota (which includes the City of Minneapolis) is proposing sweeping changes to its hazardous waste ordinance. Hennepin County seeks to require any business that generates "special wastes" including scrap electronics, dry-cell batteries, antifreeze, cathode ray tubes, recyclable fuel/water mixtures, small PCB capacitors, circuit boards, fluorescent bulbs, liquid mercury and mercury-containing products to obtain a license, pay an annual fee and be subject to inspection.
Hennepin County characterizes the changes as routine and maintains that they are simply being made to "clarify existing authorities." Nonetheless, Hennepin County acknowledges that nearly every business in the county generates one or more of these types of wastes and would be subject to licensure. Hennepin County also seeks to add a provision that will permit recovery of "enforcement costs" which could include costs of sampling stored materials, tests of soil or groundwater, laboratory fees, waste disposal costs, County staff time, outside consultant’s fees and attorney fees. Hennepin County also has a proposal that would require property owners to clean up wastes that a tenant has abandoned. Under the current ordinance, Hennepin County can require the generator to remove wastes.
Hennepin County will hold a public hearing on Tuesday, June 27, 2006 at 1:30 PM to discuss the proposed changes. Members of the public, including affected businesses and property owners will have an opportunity to submit comments at that time. Minnesota law provides that the Minnesota Pollution Control Agency must review the proposed changes to ensure consistency with state law and regulations.
Minnesota Enters Into Natural Resources Damage Settlement With Conocophillips May 2006
On April 24, 2006 the State of Minnesota entered into a Natural Resources Damage Agreement settlement with Conocophillips for past discharges to soil and groundwater at its former refinery, storage and distribution operations in Wrenshall, Minnesota southwest of Duluth, Minnesota. The Minnesota Pollution Control Agency (MPCA) and the Minnesota Department of Natural Resources (DNR) serve as co-trustees charged with protecting natural resources under state and federal law. According to an MPCA press release, from 1957 to 1980 undetected petroleum product leaked from the former Conoco refinery into the soil and groundwater beneath it. Conocophillips has agreed to a cleanup of contaminated soil and will continue groundwater monitoring under a separate agreement with the MPCA.
The terms of the settlement of the natural resources damages claims specify that Conocophillips must expend $63,000 to restore natural resources and reimburse the State for $2,450 in staff time dedicated to the project. Neither the agreement nor the MPCA's press release specify which natural resources were affected nor the basis for the agreed upon compensation. A copy of the State of Minnesota's agreement with Conocophillips is attached. The MPCA advises that similar settlements are pending for two other sites in northern Minnesota: the Enbridge Energy Company's 2002 oil spill at Cohasset and the St. Louis River/Interlake/Duluth Tar Superfund site. Minnesota's effort to collect natural resource damages is part of a broader regional effort involving sites in Michigan, Wisconsin, Ohio and Illinois. For more information about natural resource damages agreements see the U.S. Department of Interior's web site at http://restoration.doi.gov.
European Union Waste Electrical and Electronic Equipment Directive (WEEE)
On January 27, 2003 the European Union passed directive 2002/96/EC, commonly known as the Waste Electrical and Electronic Equipment (WEEE) directive. The directive, which took effect on August 13, 2005, is designed to increase the reuse of WEEE into new electrical and electronic equipment following growing concerns of both environmental damage and potential human health risks from mounting quantities of WEEE in general waste. The directive requires all producers of electrical and electronic equipment to finance the collection and treatment of WEEE generated from their products. The directive requires individual Member States to formulate legislation to articulate goals and enforcement. The WEEE directive will have a profound impact on business throughout Europe, as producers begin to reformulate sale contracts with other businesses to determine financing responsibility, scramble to arrange proper take-back sites for private households, and coordinate proper WEEE treatment with authorized treatment facilities. In addition, beginning in July 2006, producers of electrical and electronic equipment will be prohibited from using heavy metals in their products, including lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), and polybrominated diphenyl ethers (PBDE).
All Appropriate Inquiries” Rule for Environmental Due Diligence
On August 26, 2004, the U. S. Environmental Protection Agency (EPA) proposed new regulations that define the term “All Appropriate Inquiries” as used in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). CERCLA creates liability concerns for prospective purchasers of property where there has been a release or threatened release of a hazardous substance. In 2002 CERCLA was amended to provide defenses in addition to the innocent landowner defense, including the bona fide prospective purchasers and contiguous property owner defenses.
In the 2002 CERCLA amendments Congress directed the EPA to develop regulations implementing the changes to the law. EPA has conducted a negotiated rulemaking with various stakeholders. EPA set a deadline of November 30, 2004, for receipt of public comments. The proposed rule will require additional steps beyond those specified in the ASTM Standard Practice for Phase I Environmental Site Assessments. Parties seeking to preserve a CERCLA defense will need to conduct a property valuation analysis and an adjoining property analysis. Given the changing nature of this due diligence requirement, parties need to take care in proceeding with purchases of property to ensure that they take advantage of the available defenses.
Brownfields Cleanup – U. S. Environmental Protection Agency Negotiated Rulemaking
The federal Superfund law has recently been amended to clarify liability provisions for certain landowners and potential property owners. The U. S. Environmental Protection Agency (EPA) is conducting a negotiated rulemaking relating to the “All Appropriate Inquiries standard.” All affected public parties have an opportunity to participate in the negotiated rulemaking process. The EPA has invited stakeholder groups and interested individuals to participate in the process that will establish regulatory standards that will govern the investigation and cleanup of Brownfield sites.
To learn more about the EPA’s Negotiated Rulemaking Process you may visit http://www.epa.gov/brownfields/regneg.htm.
Storm Water Permit for Construction Sites – Minnesota – New General Permit Expands Number of Facilities That Will Need Stormwater Controls
Since the early 1990s the Minnesota Pollution Control Agency (MPCA) has required owners or operators of construction activity disturbing five acres or more of land to obtain an NPDES permit.
The MPCA is phasing in a new set of rules that apply to projects where one or more acres are disturbed. The MPCA is adopting a new general permit that will apply to projects of one acre or more. If the rule is adopted, it will apply to numerous construction projects throughout the State of Minnesota. The MPCA has taken enforcement action against companies and individual owners who they believe needed a stormwater permit or failed to comply with the terms of the general permit.
To learn more about the stormwater permit rules and changes that may affect a construction project that you may be involved with, you may visit www.pca.state.mn.us/water/stormwater.
Community Service – Minnesota – Environmental Law Practice Group Participates in Mississippi River Relief - Big River Cleanup
On Saturday, June 21, 2003 Joseph Maternowski, attorneys and staff participated with over 1,000 other volunteers in an effort to clean up part of a 43 mile stretch of the Mississippi River. The group set off by boat from the Lilydale City of St. Paul Boat launch to a remote section of the Mississippi River that had formerly been used as a dump. The isolated area is filled with limestone caves and hideouts where the first settlers in St. Paul including the famed “Pig’s Eye” Parrant lived.
During the group bagged and hauled trash from the area near the river to the bank. On average, each participant picked up 146 pounds of trash and assorted debris. Among the items removed were a manhole cover, parts of a disassembled car, tires, china, camping gear and other items.
The Hessian & McKasy Environmental Law Practice Group was proud to be a participant in The Mississippi River Relief – Big River Cleanup, a collaboration of businesses, environmental organizations and government agencies committed to cleaning up the Mississippi River. Leading the cleanup efforts is Chad Pregracke, a 27-year-old native of East Moline, Illinois, and founder of Living Lands and Waters. Chad has led scores of community cleanups along the Mississippi, Ohio and Illinois Rivers. For more information on the Mississippi River cleanup effort and how you can get involved please see http://www.mepartnership.org/sites/MISSRIVERRELIEF/.
