Don’t be caught off-guard and find yourself with a notice of violation letter or a possible enforcement action with large associated penalties against your site or facility for storm water and related issues. The Mississippi Department of Environmental Quality (“MDEQ”) has authority to levy penalties of up to $25,000 per day per violation. The U.S. Environmental Protection Agency (“EPA”) also may seek enforcement for violations, and third-parties may sue under the Clean Water Act citizen’s suit provisions. By taking the right steps before construction begins and implementing good housekeeping measures and other best management practices, you can greatly minimize the risks associated with an environmental inspector citing your facility with violations that can lead to an enforcement action.
A national priority from the EPA continues to be the implementation and enforcement of storm water regulations at small and large construction sites. Storm water discharges from construction activities can cause soil and sediment runoff, which is a leading cause of water quality problems nationwide. The Clean Water Act and the Mississippi Air and Water Pollution Control Law require storm water permit coverage for construction activities. Construction activities include clearing, excavating, and grading at a site. While there are some limited exceptions, most construction activities will require coverage from MDEQ and the associated Mississippi Environmental Quality Permit Board (“Permit Board”).
The required permit coverage is based on the amount of land disturbance at a site. Large Construction projects include land disturbing activities of five acres or greater, or for land disturbing activities that are part of a larger common plan of development or sale that will disturb five or more acres. Projects are considered to be Small Construction if the land disturbing activities include one acre to less than five acres, or for land disturbing activities less than one acre that are part of a larger common plan of development or sale that will disturb one acre to less than five acres.
Prior to conducting any dirt work, here is a list of action items that a prudent contractor should address:
- Check for required coverage and obtain approval and authority for construction activities (construction notice of intent filed with MDEQ, acquire National Pollution Discharge Elimination System (“NPDES”) permit, develop erosion and sediment control plan).
- Prepare and implement Storm Water Pollution Prevention Plan (“SWPPP”) that addresses erosion and sediment controls (includes contractor certification statements, Best Management Practices for control measures, maintenance schedule).
- File a Notice of Termination (“NOT”) after final stabilization at the site (must be submitted to the Permit Board within 30 days of final stabilization).
In addition to the action items above, an abbreviated checklist of items an inspector will be looking for upon a site visit include:
- Recordkeeping practices. Ensure that a copy of the permit is available on-site, that Discharge Monitoring Reports (DMRs) and associated lab data (DMRs must be maintained on-site for three years) are available, and that records have been signed by a responsible official.
- SWPPP. It is critical that the plan address all areas of construction and that the plan is revised as construction plans change. Likewise, it is important to conduct regular visual inspections and record reviews to ensure the plan is being adhered to properly. The plan requires Best Management Practices (“BMPs”) be used for erosion and sedimentation controls. Some examples of BMPs include:
- Site Planning and Management – land grading, preserving natural vegetation
- Erosion Control – mulching, riprap, seeding, sodding, temporary slope drain
- Runoff Control – check dams, permanent slope diversions, grass lined channels
- Sediment Control – sediment traps, silt fences, hay bales, vegetated buffers
- Good Housekeeping – concrete washout, spill prevention and control plan
- Visual observations. Regularly observe whether any water is leaving the site and whether the controls in place are adequate. Initiate stabilization measures in inactive areas.
There is no fee associated with a permit application or associated permit coverage for construction storm water activities. It is critical that sites consider construction storm water compliance issues at the outset of a project and continually throughout each phase of the project to avoid citations and costly fines.
If you have questions regarding storm water coverage or related compliance issues at your site, please contact Kelly Blackwood in our Jackson office or any of the lawyers in our Environmental & Toxic Tort Practice Group.