January 30, 2008

On January 22, 2008, the Minnesota Pollution Control Agency (MPCA) announced that it had resolved 67 enforcement cases during the fourth quarter of 2007 collecting nearly $650,000 in civil penalties.  The MPCA collected penalties from businesses, individuals and local units of government.  A list of the amounts paid to the MPCA in enforcement cases in the fourth quarter of 2007 and in previous quarters can be found at:www.pca.state.mn.us/newscenter/enforcement.html.

According to the MPCA’s fourth quarter 2007 enforcement summary 10 cases were resolved through Stipulation Agreements.  The remaining 57 cases were resolved through Administrative Penalty Orders.

The State of Minnesota has the authority to seek penalties of $10,000 per day of violation of environmental statutes, regulations or permits in a civil action brought in state district court through an action by the Attorney General.  See Minn. Stat. §115.071.  If the alleged violations relate to the handling of hazardous wastes, the State may seek up to $25,000 per day of violation.  The fourth quarter summary does not mention any actions that had been resolved through the judicial process.

Typically, the MPCA seeks to resolve violations without filing a civil action.  When the MPCA deems violations to be serious or repeated it may propose that a regulated party enter into a Stipulation Agreement, one of the MPCA’s enforcement tools.  A Stipulation Agreement, a negotiated out-of court settlement, resolves alleged violations, provides for the payment of a civil penalty and, in most cases, requires the completion of corrective actions.

The MPCA may, in the alternative, elect to unilaterally issue an Administrative Penalty Order (APO) to resolve alleged violations.  Minn. Stat. § 116.072.  In an APO, the MPCA may seek apenalty of up to $10,000 for all violations observed in an inspection and order specified corrective actions.  A party receiving an APO may seek judicial review in state district court or through an expedited administrative hearing.

Areas of alleged violations noted by the MPCA included: air quality, asbestos, solid waste, hazardous wastes, water quality, stormwater, individual sewage treatment systems, feedlots, and above ground storage tanks.  The average penalty paid was under $5,000.  However, in cases where violations were noted and resolved through either a Stipulation Agreement or an APO, theMPCA reserves the right to enhance penalties for future violations.

If you or your business receives an inspection notice, a Letter of Warning, a Notice of Violation (NOV), Request for Information (RFI), a Stipulation Agreement, an APO or similar notice from the MPCA, the U.S. Environmental Protection Agency (EPA) or another federal, state or local agency, we recommend that you immediately seek the advice of qualified counsel prior to responding. The MPCA and the EPA often use these notices as discovery tools where they seek admissions.

Hessian & McKasy’s Environmental Law Attorney Practice Group has extensive experience in defending enforcement actions brought by federal and state authorities, such as the MPCA, the EPA.

Hessian & McKasy’s environmental lawyers handle the full spectrum of environmental issues encountered by manufacturers, businesses, developers and individuals who have been named in an administrative, civil or criminal enforcement actions. We are regularly involved in negotiations on behalf of our clients with state and federal authorities.

Please feel free to contact any of the following individuals for more information on about the issues discussed here by contacting us directly or going to the Contact page on the www.EnviroAttorney.net site:

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

Source:  MPCA Website  www.pca.state.mn.us/

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

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