November 23, 2011

During the period of July 1st to September 30th 2011 the Minnesota Pollution Control Agency (MPCA) settled 43 enforcement cases. The MPCA, which is charged with enforcing environmental statutes, regulations and permits typically brings enforcement actions after conducting inspections of facilities at locations across the State of Minnesota.

The resolved cases involved solid waste, hazardous waste, water quality, air quality, individual septic treatment system, stormwater and feedlot violations.

The MPCA announced that penalties totaling $690,000 were collected in the third quarter of 2011. However, of the penalties that were collected, a total of $542,800 was paid in two cases for supplemental environmental projects (SEPs). SEPs are projects where dollars are expended by a regulated party who agrees to undertake and pay for a project for which it is not otherwise legally obligated to perform. The SEP expenditures are made in lieu of civil penalties. The MPCA counts the project costs of an approved SEP, which often are paid over time, in its penalty totals. The amount of civil penalties collected by the MPCA during the third quarter of 2011 was $147,200.

A Chanhassen, Minnesota company was penalized $287,920 but deferred $279,000 with a SEP that involved the purchase and installation of a vacuum degreasing unit that uses hydrocarbons instead of methylene chloride to clean parts. The new degreasing unit will eliminate the generation of hazardous waste still bottoms and decrease employee exposure to methylene chloride, a hazardous air pollutant. A Vadnais Heights, Minnesota company was penalized $288,800 but dedicated $263,800 of that amount toward two SEP projects. One of the projects is the installation of a dust-collection system reducing the solid waste disposal and the other involves a ventilation line improvement that will decrease the amount of hazardous waste generated and fume emissions from the facility.

In both cases the SEP terms were subject to a negotiation between the company and the MPCA. The settlements were finalized through Stipulation Agreements, which are essentially settlements of civil lawsuits that the MPCA could have filed seeking judicially imposed civil penalties and certain corrective actions. The MPCA uses a Stipulation Agreement to settle what it deems to be serious or repeated violations of environmental rules and regulations. The MPCA has other enforcement tools – namely, Administrative Penalty Orders – in which it assesses a penalty for violations observed during an inspection. A party who receives an Administrative Penalty order may seek review in state district court or before an Administrative Law Judge. Information about MPCA enforcement cases can be found at:http://www.pca.state.mn.us/index.php/about-mpca/mpca-news/news-media-center/quarterly-summary-of-enforcement-actions.html?menuid=&redirect=1.

The U.S. Environmental Protection Agency (EPA) enforces federal environmental laws across the country. When EPA inspectors observe and document alleged violations, they may seek to bring an enforcement action. The EPA also permits regulated parties to use SEPs to offset civil penalties. The EPA’s SEP policies differ from those used by the MPCA.

The attorneys at the Hessian & McKasy Environmental Attorney Practice Group have considerable experience negotiating and defending environmental enforcement cases. We are familiar with federal and state enforcement protocols and processes including civil penalty determination policies. We represent clients in federal and state administrative enforcement and permitting proceedings. We strategize with clients to determine if penalty mitigation strategies, such as the use of SEPs, may be appropriate in specific cases. If you or your company are involved with an enforcement action or permitting proceeding, have questions about the EPA or state process and seek legal counsel, please contact us for a free consultation. Call Joseph Maternowski at 612-746-5754 or email him at jmaternowski@hessianmckasy.com

 

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