MPCA Enforcement Authority

Earlier this year, the Minnesota Court of Appeals issued State by MPCA v. Anderson, No. A16-0204, 2017 WL 74369 (Minn. App. Jan 9, 2017) (unpublished). The opinion illustrates the Minnesota Pollution Control Agency’s (MPCA) strong enforcement authority to implement the terms of consent decrees, which are settlements used to resolve violations. In addition, the case affirms the MPCA’s authority to recover its costs for emergency cleanup.

When a party enters into a settlement with any governmental agency, it is critical to have a clear understanding of the terms. The party should also clearly understand the requirements for corrective actions and the consequences for failure to complete the required actions. If a party fails to perform, the MPCA may step in and then complete the required actions.  Further, the MPCA may seek to recover its costs, penalties and attorneys fees.

Case Background

The appellants in Anderson, Dale Cich and Diane Anderson, were the former operators and now, the current owners of a waste-removal facility. In 2000, their company J & D Services, located near Duluth, accepted an estimated 1,186,700 pounds of hazardous and non-hazardous waste from LTV Steel Mining Co. (LTV). The appellants indicated to the MPCA that they intended to recycle the waste.

However, by 2015, LTV had filed for bankruptcy. The waste had still not been recycled. Next, MPCA inspectors discovered several violations on the site. They identified not only hazardous waste, but underground and above-ground storage tank violations on the site. As a result, the appellants entered a consent decree with the MPCA that provided a plan for cleanup of the site.

Despite receiving extra time to comply, the appellants failed to complete the cleanup. The MPCA then exercised its authority to conduct an emergency cleanup. The State’s contractor performed the cleanup at the MPCA’s expense.

District Court Decision

In the district court, the MPCA obtained a judgment against the appellants (Cich, Anderson and J&D Services). The judgment included $225,690 in cleanup costs, $1,322,500 in civil penalties, and $67,000 in attorneys’ fees. The appellants were held jointly and severally liable for these amounts. The appellants had agreed in the consent decree to be liable for any noncompliance. Therefore, their request for an evidentiary hearing was denied.

Court of Appeals Ruling

The court of appeals upheld the district court’s decision concluding:

  1. The appellants were not denied procedural due process.
  2. The appellants were jointly and severally liable.
  3. The district court did not abuse its discretion in calculating the civil penalties.

The appellants chose not to appeal the case to the Minnesota Supreme Court.

In this case, the consent decree included enforceable terms. When the appellants failed to comply, the MPCA exercised its authority and completed the cleanup. Although the MPCA was able to obtain a judgment against the appellants, collection of the $1.5 million in penalties, costs and fees may prove to be problematic.

View the court of appeals opinion here. Even though it is unpublished, the decision is important. Furthermore, this case is one of only a handful that demonstrate the breadth of the MPCA’s enforcement authority to address threats to the environment and public health.

For further background on the State’s investigation, enforcement action and the appellants history with environmental compliance click here.

Joseph Maternowski is a Minnesota environmental law attorney. In his practice, he assists clients in responding to federal and state inspections and enforcement actions. A key component of this representation before agencies is negotiation of consent decrees and other settlements.  Enforcement actions that address past environmental violations are typically resolved through settlements. Thanks to associate Joseph Reutiman for help in preparing this update.

To learn more about MPCA enforcement processes, see our blog.

For more information, please contact:

Joseph Maternowski

Hessian & McKasy, P.A.

(612) 746-5754

jmaternowski@hessianmckasy.com

www.hessianmckasy.com

www.enviroattorney.net

 

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