July 9, 2012   On June 28, 2012, the U.S. Environmental Protection Agency (“EPA”) announced that it reached a settlement with a Minnesota construction contractor and the North Dakota Department of Transportation (“NDDOT”) in a case involving alleged stormwater discharges in violation of the federal Clean Water Act affecting the Sheyenne River in Cass County, North Dakota.

As part of the settlement, the construction contractor, Gowan Construction, Inc. (“Gowan”), agreed to pay a civil penalty of $40,000.  NDDOT agreed to conduct an inspection program of active construction sites, complete review of stormwater pollution prevention plans (SWPPPs) and conduct reviews of projects to ensure contractors are complying with federal environmental laws.  NDDOT will also develop a website devoted to stormwater compliance and provide training opportunities to contractors working on its highway projects.

The case, which originated out of EPA’s Region 7 Office in Denver, Colorado, is significant because it demonstrates EPA’s active role in enforcing federal law even when a state, such as North Dakota, has a permit program regulating stormwater discharges.

In cases such as this, EPA reserves the right to step in and assert its authority under federal law.  In addition, North Dakota firms and out of state contractors working on projects in North Dakota should be aware that the federal agency charged with enforcement is active in North Dakota.  As North Dakota experiences increased economic activity as a result of expansion of oil production and related industries, EPA is becoming more visible, stepping up its inspections, monitoring state programs and bringing more enforcement actions for all types of environmental violations.

The contractor in the North Dakota case, Gowan Construction of Oslo, Minnesota, which maintains a branch office in Grand Forks, North Dakota, was cited as the “operator” on the construction stormwater permit issued for the project.  NDDOT was listed as the “owner” on the permit that applied to the 220-acre project site on Interstate 29 north of Fargo, North Dakota.

The North Dakota case arose out of an August 2010 EPA inspection of the Interstate 29 construction site, which, according to the EPA, covered an area the size of 198 football fields.  EPA alleged that Gowan and NDDOT failed to maintain adequate stormwater controls (silt fences, straw bales and silt curtains).  As a result, EPA estimated that 1100 tons of sediment were illegally discharged to the nearby Sheyenne River, a major tributary of the Red River of the North.  The EPA inspection occurred while the project was underway.  Stormwater controls were installed and maintained by Gowan and NDDOT and these actions prevented further discharges to the waters of the United States.

In announcing the settlement, EPA noted that stormwater runoff is generated when rain and snowmelt events flow over disturbed land surfaces such as construction sites.  Debris, chemicals, sediment and other pollutants are picked up in these flows and affect water quality.  EPA stated that the sediments can kill fish, destroy spawning beds, suffocate fish eggs and otherwise be detrimental to aquatic environments.

The North Dakota Department of Health (NDDH) issues permits to owners and operators (including contractors) involved with road construction and other projects that disturb more than one acre of land surfaces.  NDDH has separate permit programs regulating mining, extraction and paving material preparation andstormwater discharges at industrial sites.  Permitted sites may be inspected byfederal or state authorities that are charged with the enforcement of permit terms and federal and state law.  Information about North Dakota stormwater requirements can be found at:http://ndhealth.gov/WQ/Storm/StormWaterHome.htm.

Environmental law attorney Joseph Maternowski assists clients with permitting and compliance issues including matters involving stormwater discharges from construction and industrial sites.  He is also involved in representing private parties including contractors and units of local government that face enforcement actions as a result of federal and state inspections.

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