Violations of environmental law, even minor violations, can have devastating impacts on a business. Violations cannot only tarnish the public image of a company, but an enforcement action can also subject the business to significant legal liability. For those reasons, many times businesses attempt to remain willfully ignorant of minor violations of environmental law. Minor violations, when ignored, can quickly become more substantial and expose businesses to even more negative publicity, legal liability, and drawn out legal actions. The Minnesota Pollution Control Agency’s (“MPCAs”) Environmental Audit Program (“EAP”) may be a good solution for a business that is unsure if it has, or suspects that it may have, a minor environmental violations.
The MPCA EAP allows a business to discover and correct minor violations before those violations become substantial and extremely costly. To participate in EAP a business must conduct an environmental audit or hire an outside firm to conduct the audit. Forty five days after conducting the audit the business submits a report inventory to the MPCA summarizing the results. After the report is submitted, the business has 90 days to correct the identified issues or submit a performance schedule to the MPCA.
Generally, if a minor violation is found and corrected within 90 days, there will be no penalty for the violation. Taking part in EAP has two major benefits for businesses. First, the problem was identified promptly and will likely not turn into a major environmental issue with all of the attached costs. Second, the business will most likely be able to avoid any penalty for the minor violation. However, there are potential risks for participating in EAP. If the MPCA determines that the violation provided the business with “a substantial economic benefit, which gives the violator a clear advantage over its competitors,” an enforcement action can be taken due to the violations disclosed in the audit.
Confidentiality is a major concern for most businesses when deciding whether to disclose a violation to a government agency. However, with EAP, confidentiality, while still a concern, is less of an issue than with other disclosures to government agencies. First and foremost, the MPCA is generally not entitled to a copy of the audit, unless there is probable cause that a crime has occurred. Second, additional confidentiality protections can be put into place in advance of the audit through the use of attorney client privilege.
Finally, if a business decides to participate in EAP, successfully completes an audit, and conducts any required cleanup, it can be awarded the Minnesota Green Star certificate. The business can then display this emblem for two years, which indicates to the public and potential customers the business’s commitment to the environment.
Please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. To determine if your business qualifies for the MPCA Environmental Audit Program and to determine if participating in the program is the right choice for your business, please contact:
Hessian & McKasy, P.A.