May 31, 2011

The Minnesota Pollution Control Agency (MPCA) has broad authority to enforce environmental laws relating to air quality, water quality, solid waste, hazardous waste and related matters. Businesses, business owners, local units of government and, in some cases, individuals may be subject to environmental laws and regulations.

The MPCA issues quarterly summaries of its enforcement actions. In the first quarter of 2011 the MPCA concluded or settled thirty six matters and collected a total of $450,471 in penalties. In ten of these cases the MPCA and a regulated party entered into a Stipulation Agreement. Penalties in these matters totaled $273,674. The remaining cases were resolved through administrative penalty orders issued by the MPCA to regulated parties. A total of $176,797 in penalties was collected in these cases. In seven other cases the MPCA issued administrative penalty orders but determined that the assessed penalties were forgivable because the regulated parties agreed to perform corrective measures remedying the alleged violations.

The MPCA conducts inspections to assess the compliance status of regulated parties. If the MPCA believes there is noncompliance, the MPCA may allege that statutes or regulations have been violated and then take enforcement action to address those alleged violations.

For serious or repeated violations the MPCA may seek penalties for alleged noncompliance. The MPCA has a number of enforcement options. The vast majority of matters are handled administratively. If a violation is deemed serious or repeated, the MPCA may issue an administrative penalty order (APO). With this tool, the MPCA may seek up to $10,000 per inspection and require corrective actions. For certain violations that are viewed as more serious, the MPCA may propose a Stipulation Agreement, essentially an out-of-court settlement of the State’s case. Typically, penalties are higher in these cases and generally are over $10,000.

In addition to the APO and Stipulation Agreement enforcement tools, the MPCA has the right to seek court imposed fines by filing a civil case. The Attorney General files cases on behalf of the MPCA. The State may ask the court to impose penalties of $10,000 per violation per day. If the violations involve hazardous waste, the State may seek penalties of $25,000 per violation per day. In cases where harm is imminent, the State may seek an injunction. The MPCA or other environmental authorities may refer cases to county attorneys for criminal prosecution. Finally, state or local authorities may refer cases involving allegations of criminal wrongdoing to the EPA or the Department of Justice.

The environmental law attorneys at Hessian & McKasy assist clients in responding to inspections, dealing with compliance and permitting issues and responding to enforcement actions. We counsel clients who are facing enforcement action from states and the U.S. Environmental Protection Agency (EPA). Each case presents unique facts. Regulated parties should consult with qualified counsel to assess their liability and the legal implications of such actions.

The views here are my own and do not reflect the views of my employer, Hessian & McKasy, a Professional Association.

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