May 11, 2010

Thank you for your interest in the blog and this feature. We have a question from an attorney, Joan P. In Bloomington, Minnesota.

Question: My client received an Administrative Penalty Order from the Minnesota Pollution Control Agency (MPCA).  We have the right to seek review before an administrative law judge or before a state district court judge.  What are the differences with these options?

Response: Thank you for the question.  The MPCA uses Administrative Penalty Orders (APOs) as one of its primary enforcement tools.  Although penalties are capped at $10,000, the MPCA can order corrective actions that can sometimes be quite expensive.  You are correct that a party receiving an APO has a choice of seeking either administrative or judicial review.  With both options, the party seeking review can present evidence and arguments related to the alleged violations, the proposed penalty and corrective actions.

With regard to the administrative appeal option, an administrative law judge hears testimony and legal arguments and issues findings of fact, conclusions of law and a recommendation that is presented to the MPCA Commissioner.  Administrative law judges (ALJs) are employed by the State of Minnesota’s Office of Administrative Hearings.  The Commissioner has the authority to accept, reject or modify the ALJ’s findings of fact and conclusions of law.  The Commissioner’s decision, which is considered to be a final agency action, can be appealed to the Minnesota Court of Appeals.

The other option available for review of an APO is to a state district court judge.  The statute specifies that a petition seeking review of an APO may be filed with the district court as an alternative to the administrative review option.  The petition may be filed in Ramsey County or in the judicial district where the petitioner resides.  The petition must state with specificity the grounds on which the petitioner seeks rescission of the order including the facts on which each claim is based.

The district court hears the case de novo meaning that the Court takes evidence related to the allegations in the APO and makes independent determinations on all matters related to the APO.  The district court may decide whether violations have in fact occurred.  The district court also has the authority to review the penalty proposed by the Commissioner and determine whether a penalty in any amount is warranted and, if so, the level of the penalty.  The MPCA and the MPCA Commissioner are bound by the decision of the district court.  The petitioner or the MPCA may file an appeal with the Minnesota Court of Appeals.

We advise readers of this blog that the information contained on this blog is general in nature and does not constitute legal advice.  The facts and circumstances of each matter differ.  Please see the disclaimer at the bottom of this blog for further information as to the limitations related to any information that appears on this blog or website.

For more information on Administrative Penalty Orders and the MPCA enforcement process, please visit other pages on the www.enviroattorney.net website including http://www.enviroattorney.net/blog/?post=71 and http://www.enviroattorney.net/practice/negotiation.php.

The views here are my own and do not reflect the views of my employer, Hessian & McKasy, P.A.

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