- Why Should You Worry About Environmental Laws?
- March 22, 2013 | Author: John B. King
- Law Firm: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
Environmental laws and regulations govern many activities in the construction and aggregates industries. Due to the nature and complexity of environmental regulation, this brief summary simply cannot comprehensively explain everything that may affect you and your business. However, it will touch on three of the main areas (water, air, and waste) and provide some basic information so you can generally assess whether you may have an issue that needs to be addressed. As Ben Franklin once said - “an ounce of prevention is worth a pound of cure.”
Why is this important? Inspections and potential enforcement actions by the Louisiana Department of Environmental Quality (LDEQ) are bad enough. But, other time-consuming actions could hamper your company as a result of unknowingly violating environmental laws. Third-parties, such as neighbors or environmental groups, have the right to file a ‘citizen’s suit’ against your company for environmental violations. General laws of nuisance, trespass, and tort may form the basis for a suit. When wetlands may be involved, the Corps of Engineers may issue stop-work orders, shutting down your job.
Water-Discharges into waters of the state require a permit from the LDEQ. Generally, if you have water leaving your site, you need to evaluate the type of water (for example, is it non-contact stormwater, contact or process stormwater, or process wastewater?) to determine whether you need a permit and the type of permit you may need.
Stormwater discharges from construction sites between one and five acres in size are automatically covered under a general permit. Although no notice to LDEQ is required for coverage, nor is a fee assessed, compliance requirements exist. For example, a Stormwater Pollution Prevention Plan (SWPPP) must be prepared for the site prior to the commencement of any activity. For stormwater discharges from construction sites over five acres in size, a notice to LDEQ to obtain coverage under the general permit is required. The SWPPP is also required.
The construction general permit does not cover cement or concrete plants. Instead, a general permit for discharges from cement, concrete, and asphalt plants must be obtained.
A Spill Prevention, Countermeasures, and Control (SPCC) Plan is required if you store over a certain amount of oil (including diesel fuel) or hazardous substances on your site. For oil, the threshold amount is 1,320 gallons within a common containment area, and only containers with a capacity of 55 gallons or greater are counted. If you store over that amount, a SPCC Plan is required. Generally, the regulations require that the plan describe the containment for the tank holding the oil and the nature and frequency of periodic inspections.
Finally, the site on which you are working or want to construct a facility may be deemed wetlands by the Corps of Engineers. In order to work in wetlands, a permit may be required from the Corps. Making the determination of whether your site is a wetlands and whether a permit is necessary requires scientific and legal evaluation.
Air-Emissions of air contaminants, such as particulate matter, require a permit if over a certain amount. The amount of emissions from engines or other equipment should be evaluated to determine if the site emits less than the permitting threshold. The evaluation should be retained to show to LDEQ that the site was evaluated and is under the threshold. If the facility is over the threshold, there are regulatory permits that may be helpful. For example, there is a regulatory permit for concrete manufacturing facilities and rock, concrete, and asphalt crushing facilities. Even though a permit may not be required, there are certain general requirements for control of particulates (such as dust) and smoke.
Waste-The use of solvents, painting, sandblasting, truck washouts, and many other activities may create waste that must be recycled or disposed. Proper determinations must be made so that the waste is sent to the correct type of facility. For example, a solvent may be used, and due to that use, become too contaminated to be further used. Depending on its type and how it was used, the spent solvent may be a listed hazardous waste or display a hazardous waste characteristic. If so, there are strict rules for on-site accumulation and manifesting the spent solvent to proper handling and/or disposal facilities.
As you can see, the costs of non-compliance can include stop-work orders, fines, lawsuits, and, in certain egregious circumstances, even criminal investigations or prosecutions. Protecting yourself at the beginning of a project may prevent numerous problems during and after a project.