As we head into summer in Minnesota, we all need to be prepared for unpredictable and sudden rainfall, especially “Supercell” thunderstorm events. Unfortunately, for those in the construction industry big rains can easily overwhelm the best engineered stormwater controls. Stormwater flows can quickly move off a construction site into public waters where they can quickly create turbid conditions.  Stormwater flows may draw the attention of citizens and regulators.

Citizen Complaints May Trigger Enforcement.

It is no surprise that the Minnesota Pollution Control Agency (MPCA) notes an increased volume of citizen complaints relating to stormwater during the spring and summer months.  After a heavy rain, any party holding a stormwater permit should be prepared for an unannounced MPCA visit and inspection.  When violations are noted in the field, an enforcement action often follows.

The MPCA is charged with issuing permits related to stormwater, responding to citizen complaints and conducting inspections. They need to determine compliance with National Pollutant Discharge Elimination System (NPDES) and State Disposal System (SDS) permit terms and Storm Water Pollution Prevention Plans (SWPPPs).

In Minnesota, Stormwater Violations Are Cited Frequently.

Recently the MPCA issued a summary of enforcement actions that the Agency completed in the first quarter of 2018. The MPCA announced it had collected over $300,000 in civil penalties in 73 separate enforcement actions. https://www.pca.state.mn.us/regulations/quarterly-summary-enforcement-actions

Seventeen (17) of the MPCA’s enforcement action settlements during the first quarter of 2018 related to construction stormwater violations. Violations were found and settlements were concluded in other areas as well including: Air Quality (24), Industrial Wastewater (7), Subsurface Sewage Treatment (2), Underground Tanks (2), Hazardous Waste (4), Feedlots (3), Solid Waste (7); Municipal Wastewater (4); and MS4 Stormwater (2).

The MPCA’s focus on stormwater compliance and enforcement is consistent with past Agency efforts to address alleged violations in this sector.   The MPCA reports that in 2017 its construction stormwater inspectors visited more than 350 construction sites that disturbed more than one acre of land. The inspection count covers routine, complaint and follow-up inspections.  In 2017 the MPCA completed 60 enforcement actions for alleged stormwater violations found at construction sites.  According to the MPCA, the most common violations at construction sites were: 1) missing or inadequate soil stabilization, 2) missing perimeter controls, and 3) missing or inadequate inlet protection.

Understanding The MPCA’s Enforcement Process is Critical. 

Before initiating an enforcement action against a regulated party the MPCA typically issues an Alleged Violations Letter (AVL).  In an AVL the MPCA formally documents alleged violations observed during an inspection.  The MPCA also provides a regulated party with the opportunity to respond.  A regulated party may submit factual and legal arguments related to the alleged violations. Also, they may otherwise attempt to refute or mitigate the alleged violations. This information is considered by the MPCA when the Agency determines what type of enforcement action should be initiated to address the alleged violations.

Currently the MPCA resolves most violations by issuing Administrative Penalty Orders (APOs). https://www.revisor.mn.gov/statutes/?id=116.072 APOs may contain assessments of forgivable or non-forgivable civil penalties.  The MPCA has the authority under Minn. Stat. §116.072 to unilaterally assess administrative penalties of up to $20,000. A party who receives an APO may seek review before an Administrative Law Judge (ALJ) or in State District Court.  A party who receives and APO should understand that agreeing to pay a penalty—even less than $5,000—may have long-term implications for a regulated party.  The MPCA uses a “history of violations” factor to enhance penalties in subsequent enforcement matters.

In cases with more serious or repeated violations the MPCA has the authority to seek penalties in excess of up to $10,000 per day of violation. https://www.revisor.mn.gov/statutes/?id=115.071  Also, in cases where the MPCA seeks higher penalties, the Agency typically uses a different enforcement tool—a Stipulation Agreement—to address noncompliance and require payment of a civil penalty. For hazardous waste violations the MPCA may seek penalties of up to $25,000 per day of violation.  The terms of a Stipulation Agreement, including the proposed civil penalty and any required corrective actions, are subject to negotiation. And,  in most cases settled with Stipulation Agreements the MPCA issues a press release.

How Can a Contractor Prevent Violations and Penalties?  

When sudden heavy rains saturate construction sites, stormwater flows containing sediment can move quickly and test the integrity of sediment controls. Violations can be minimized by:

  • Ensure that SWPPPs are updated and followed especially in the aftermath of a storm event;
  • Maintain inspection logs to document compliant and non-compliant conditions;
  • Make sure employees, on-site managers and subcontractors are properly trained and aware of their responsibilities under applicable permits and SWPPPs;
  • Consider hiring a third party auditor to monitor compliance with NPDES and SDS permits and SWPPP elements;
  • Engage outside counsel who can assist with review of non-compliance , potential reporting requirements that may apply and responding to inspections and AVLs; and
  • When issues are noted in an audit, implement required corrective actions immediately.

At Hessian & McKasy we have experience guiding clients as they respond to MPCA inspections. Further, we assist clients in preparing responses to AVLs. We advise as to the MPCA’s enforcement process and we are involved with the negotiation and resolution of enforcement matters.  Also, we work with clients to mitigate and, when possible, eliminate alleged violations and civil penalties.  When appropriate, we contest enforcement actions before an ALJ or state district court.  We help design environmental audit programs and environmental management systems to prevent violations from occurring.  When available, we assist with obtaining audit protections, to avoid enforcement actions and civil penalties.

Attorney Joseph Maternowski is often asked by in house counsel and other practicing attorneys to represent regulated parties in enforcement matters. In addition, Maternowski is also frequently asked to present on topics related to environmental compliance and ways to minimize environmental liability.

Upcoming Webinar to Focus on Compliance.

On Wednesday, June 20, 2018 Mr. Maternowski will be co-presenting a Minnesota CLE webinar entitled “Complying With Environmental Laws.” This educational session is designed to provide information to business and real estate attorneys who may need to respond to federal, state and local enforcement actions.  Topics to be covered include: responding to inspections and requests for information, responding to violation notices, negotiating enforcement matters with regulatory agencies, auditing to prevent and detect non-compliance and reporting audit results.  https://www.minncle.org/SeminarDetail.aspx?ID=1223181801&utm_source=BenchmarkEmail&utm_campaign=2018_05_30_WebcastsJune&utm_medium=email

Furthermore, please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. Joseph Maternowski is an attorney in private practice who advises clients on compliance matters as well as on commercial and residential real estate transactions and on litigation.  Finally, for additional information please contact:

Joseph G. Maternowski

Hessian & McKasy, PA

T: (612) 746-5754

jmaternowski@hessianmckasy.com

www.hessianmckasy.com

www.enviroattorney.net