May 9, 2011

Question from Robert in Renville, Minnesota: “There was a newspaper story that mentioned the EPA was taking over an environmental case in Minnesota involving a local cooperative. Why is the EPA getting involved now in Minnesota?”

Response: Thanks for your question. We appreciate your interest and can respond generally. As is noted in the disclaimer below, information on this website is provided as a public service and does not create an attorney client relationship. Anyone seeking legal advice should consult with competent counsel about the facts involved with their specific situation.

The article you refer appears to have been in the May 8, 2011 edition of the Minneapolis Star Tribune and is titled “EPA Focuses on Chronic Polluter.” The article, which can be found at:http://www.startribune.com/local/121446969.html, describes a case where the state authorities, here the Minnesota Pollution Control Agency (MPCA), have been involved in numerous inspections. According to the information in the article, in the past the MPCA has found what it believed to be evidence of violations of water quality regulations and permit conditions. In response, the MPCA took a number of enforcement actions where penalties were assessed and corrective actions were required.

Apparently, the MPCA sought the U.S. Environmental Protection Agency’s (EPA’s) involvement in the case.

Most environmental laws provide federal and state authorities may promulgate regulations. Federal laws often delegate inspections and enforcement to state authorities. In certain cases local governmental units may also have jurisdiction over environmental operations through ordinances, permits or zoning conditions.

In most cases, state environmental agencies have primary jurisdiction, responsibility and involvement with environmental investigations and enforcement. State agencies, especially in these times of dwindling state budgets, often have limitations on their resources and enforcement capability. In certain instances, environmental cases may be quite complicated and require significant resources to investigate and prosecute. State authorities always have the right to make a referral and ask the EPA to step in to assist on an enforcement matter. The EPA also has the right to step in and take action if it believes the state action is not effective or appropriate. The courts have imposed some limits in the EPA’s ability to step into cases.

The referral of a case from a state to the EPA may bring serious consequences for the company or individuals who are involved.

The EPA has sufficient resources and staffing to handle any case. The EPA will evaluate the case file that is received from the state and take appropriate action. Generally, the EPA is thorough and takes great care in developing its cases. After an investigation and review are complete, the EPA may undertake an administrative action where it can seek penalties and order corrective actions. These matters are typically handled by EPA staff in one of EPA’s Regional Offices. EPA staff are supported by EPA staff attorneys and will also call upon the referring state agency to support the case.

In cases where violations are very serious or deemed to pose an imminent threat to the public health or the environment, the EPA may choose to refer the case to the U.S. Department of Justice (DOJ). The DOJ has the authority under most environmental laws to go to federal district court and seek injunctive relief to enjoin or stop what has determined to be an emergency condition. The DOJ can also seek penalties for alleged noncompliance.

If your company or operation is subject to an inspection or an enforcement action by federal, state or local authorities, it may be prudent to confer with competent legal counsel to advise you as to your rights and how to proceed. A lawyer can advise you as to the agency process, defenses you may be able to assert and other related matters.

At Hessian & McKasy, we assist clients on all aspects of environmental matters including defense on enforcement matters. For more information about the professional services we provide to clients please visit: http://www.enviroattorney.net/practice/professional_services.php.  To receivewww.enviroattorney.net blog updates and posts, please provide your e-mail in the space at the top of this page.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.
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