January 22, 2008

On December 19, 2007 U. S. Environmental Protection Agency (EPA) Administrative Law Judge William Moran dismissed an administrative enforcement case where the U. S. EPA Region 5 sought to collect a civil penalty of $120,000 for violations of the Clean Water Act.  See In the Matter of Robert J. Heser and Andrew Heser, Docket No. CWA-05-2006-0002,http://www.epa.gov/oalj/orders/heser-sol-dsm-121907.pdf.

The EPA alleged that two individuals, Robert Heser and Andrew Heser violated Section 301(a) of the federal Clean Water Act by failing to obtain a permit before discharging approximately 3,000 cubic yards of dredged spoil and organic debris into Martin Branch, a waterway, and 2.1 acres of adjacent forested wetlands in Marion County, Illinois.  The waterway ran through farmland owned by the Hesers.

Judge Moran’s decision involved consideration of the Hesers’ motion to dismiss which alleged that the EPA had waited too long to file its administrative complaint.  A complaint about the alleged dredging activity was filed with the U. S. Army Corps of Engineers (Army Corps) on September 1, 1999.  The Army Corps notified the Hesers of the alleged violation on January 12, 2000.  The EPA did not file its administrative compliant until May 1, 2006.

Under the federal Clean Water Act, the EPA must initiate an enforcement action by commencing an administrative compliant “within five years from the date when the claim first accrued.” Id. at p. 4.  Judge Moran found that the EPA needed to commence its action by September, 2004, 19 months before the date the administrative action was actually commenced.

Judge Moran rejected EPA Region 5’s arguments that the alleged violations were “continuing” in nature and that the statute of limitations should have started running on a later date when the EPA actually discovered the violations.  Judge Moran stated that : “the record is bereft of any facts to show there were subsequent additions of dredge or fill to Martin Branch after September 13, 1999.”  Id. at p. 17.

In dismissing the EPA’s case and $120,000 civil penalty demand, Judge Moran commented that: “…in those situations where the government has actual knowledge of potentially violative activity, it has a duty to act within the time frame afforded by the statute of limitations.” Id. at p. 30.  Judge Moran noted that his conclusion “is also in harmony with a related principle behind statutes of limitations – that the citizenry should, at some point, be able to know that a potential controversy with government becomes invalid to assert.” Id. at p. 31.

Even though Judge Moran dismissed the EPA’s case on procedural grounds, he also questioned the technical basis for the EPA’s allegations that the Hesers’ activities adversely affected downstream waters.  Judge Moran noted that the EPA had no evidence that the Hesers’ activities in 1999 contributed to any pollution problems in Lake Centralia, the alleged downstream receiving water.  Judge Moran also noted that the EPA must have been aware of the statute of limitations issues because the EPA had entered into several Tolling Agreements where he noted the EPA miscalculated the onset of the initial date.

The statutes of limitations for the EPA to commence an enforcement action may vary depending upon what federal law is at issue.  The specific facts and circumstances of each case must be carefully analyzed to make a determination relating to the commencement date.  In Minnesota, if the MPCA seeks to collect a civil penalty, the MPCA is required to commence an enforcement action within three years of the date the violation was discovered or reasonably should have been discovered.  See Minn. Stat. § 541.075.

Hessian & McKasy’s Environmental Law Attorney Practice Group has extensive experience in responding to notices and defending enforcement actions brought by federal and state authorities, such as the EPA and the MPCA.  We have litigated issues involving the statutes of limitations in the context of EPA enforcement actions as well as in litigation between private parties.  We routinely represent clients in enforcement and permitting matters.  We have helped clients prepare for inspections by assisting with environmental and health and safety audits and the development of environmental management systems that are designed to detect and prevent violations.  We advise clients of all their available options including reaching negotiated settlements or, when appropriate, seeking administrative or judicial review.

Hessian & McKasy’s environmental attorneys handle the full spectrum of environmental issues encountered by businesses and individuals who have been named inadministrative, civil or criminal enforcement actions. Members of Hessian & McKasy’s Environmental Law Attorney Practice Group are regularly involved in negotiations on behalf of our clients with state and federal authorities.

We have represented clients in numerous matters before EPA Administrative Law Judges.  The EPA administrative proceedings are not formal court proceedings, but rather they are administrative hearings before EPA Administrative Law Judges that are governed by the Consolidated Rules of Practice.  See http://www.epa.gov/oalj/rules/crop.pdf.  Appeals of the Initial Decisions may be appealed to the Environmental Appeals Board (EAB).  EAB decisions may in turn be appealed to federal district court.

The information contained within this website does not constitute legal advice.  Please see the information contained in the Disclaimer section on the home page.  Please feel free to contact any of the following individuals for more information about the issues discussed here by contacting us directly or going to the Contact Us tab on the www.EnviroAttorney.net site:

Joseph G. Maternowski 612-746-5754 jmaternowski@hessianmckasy.com

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

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