January 11, 2009

Minnesota businesses, units of local governments and individuals who fail to comply with environmental statutes, rules, regulations and permit terms may face an enforcement action brought by federal, state or local authorities. Violations of state law and regulations are typically enforced by the Minnesota Pollution Control Agency (MPCA). In many cases, the MPCA seeks civil penalties for past noncompliance. The MPCA has issued “MPCA Civil Penalty Guidelines for Individual Civil Settlement Negotiations for Violations of Minnesota Environmental Laws” (MPCA Civil Penalty Guidelines), which provides guidelines as to how a proposed penalty is determined. The MPCA periodically revises the MPCA Civil Penalty Guidelines.  The latest version of these guidelines, dated July 2009, can be found at: http://www.enviroattorney.net/articles/DOCS-1530105-v1-MPCA_Civil_Penalty_Guidelines_for.doc.

The MPCA uses a variety of enforcement tools to address alleged noncompliance. In cases where a violation has occurred, but it is deemed to be non-serious, the MPCA may choose to issue either a Letter of Warning (LOW) or a Notice of Violation (NOV) advising a regulated party the noncompliance has been observed. In cases with serious violations, the MPCA may escalate its enforcement response. In the most egregious cases the MPCA may refer the matter to the Attorney General’s Office where a civil action may be filed on behalf of the State of Minnesota in state district court. Because of the expense and time associated with filing and prosecuting a civil case, the vast majority of cases are resolved through other less burdensome means. In cases where the U. S. Environmental Protection Agency (EPA) retains jurisdiction through an environmental program delegated to the State of Minnesota, the MPCA may make a referral of an enforcement matter to the federal authorities.

The MPCA may choose to address violations of state statutes and regulations through an Administrative Penalty Order (APO) which may require a party to pay a penalty and to undertake corrective actions. In recent years the MPCA has issued APOs to address many types of violations. The maximum penalty that can be assessed by the MPCA in an APO is $10,000. A party who receives an APO may seek review before an Administrative Law Judge (ALJ) or in state district court.

In cases where the MPCA deems the alleged violations to warrant a higher penalty or where extensive corrective actions are required, the MPCA may propose that a party enter into a Stipulation Agreement, which is essentially an out of court settlement. If the MPCA chooses to use the Stipulation Agreement tool, the MPCA applies the MPCA Civil Penalty Guidelines to determine an appropriate civil penalty to be paid to the State. In most cases the MPCA prepares a “Penalty Calculation Worksheet” that describes how the MPCA Civil Penalty Guidelines were applied to a specific case. For more information related to the MPCA’s enforcement process please seehttp://www.pca.state.mn.us/rulesregs/enforcement.html.

The terms of a Stipulation Agreement are negotiable. Although the MPCA will (and may well prefer to) negotiate directly with a regulated party who is not represented by an attorney, parties should consider retaining an environmental attorney to assist with the negotiation process. An experienced environmental lawyer can advise a party and provide counsel as to the implications of a settlement. When dealing with a regulatory agency, there is a great deal at stake. These negotiations may result in the payment of significant penalties and require the implementation of expensive corrective actions. In most cases the MPCA publicizes the settlements and issues a press release that is circulated to media outlets.

At Hessian & McKasy, our environmental attorneys regularly represent parties before the MPCA in these types of negotiations. Joseph Maternowski, Chair of Hessian & McKasy’s Environmental Law Attorney Practice Group, is familiar with the MPCA’s processes, procedures, staff and counsel from the Attorney General’s Office. Mr. Maternowski, an environmental attorney who began his career in the Attorney General’s Office works closely with clients to review background matters related to the alleged violations and determine whether the facts support the MPCA’s allegations. The review of each case includes an assessment of potential liability exposure. Mr. Maternowski applies his extensive background and skills to craft a negotiation strategy that is designed to minimize liability exposure and assist each client in returning and maintaining its compliance status. For information relating to our innovative practice, please visit:http://www.enviroattorney.net/sample-price-list.php

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

 

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