The Minnesota Pollution Control Agency (MPCA) recently announced that in the Second Quarter of 2018 it had concluded 52 enforcement cases where the MPCA collected a total of just over $366,000 in civil penalties for alleged violations. The MPCA compiles lists of current and past enforcement action summaries on its website at: https://www.pca.state.mn.us/regulations/quarterly-summary-enforcement-actions . In its announcement the MPCA provides general information about each case or settlement. Finally, a summary of key takeaways from this past quarter’s results is as follows:
* Six cases were resolved through Stipulation Agreements, negotiated settlements between the MPCA and regulated parties. By contrast, the MPCA issued forty six (46) Administrative Penalty Orders (APOs) to resolve noncompliance. The second quarter settlements follow recent MPCA enforcement trends where they prefer to resolve most cases and violations through an APO.
* When using the APO enforcement tool the MPCA provides a party with a chance to respond to an Alleged Violations Letter. However, the MPCA acts unilaterally in making its final decision as to the conduct that constitutes alleged violations and civil penalties to be paid. A party who has received an APO has thirty (30) days to pay the penalty. Also, they may seek review by filing an appeal in state district court or before an Administrative Law Judge (ALJ). For information on APO’s and reviewing rights to appeal please see: http://www.enviroattorney.net/ask-an-environmental-lawyer-review-of-an-apo/
* Several years ago Minn. Stat. § 116.072, the statute that authorizes the MPCA to issue APOs, was modified and the cap on civil penalties that can be assessed by the MPCA through an APO was raised from $10,000 per inspection to $20,000 per inspection. Since that time, the MPCA has seemed to default to APOs as the primary enforcement tool to address noncompliance with environmental statutes, regulations and permit terms. Stipulation Agreements continue to be used but not with the frequency as seen in past. The MPCA uses Stipulation Agreement in cases where violations are deemed to be more serious or where extensive corrective actions that may need to occur over an extended period of time are required to address noncompliance. For information on the process of negotiating a Stipulation Agreement with the MPCA see: http://www.enviroattorney.net/ask-an-environmental-attorney-mpca-negotiations/
* In the Second Quarter of 2018 violations of permits and regulations related to air quality and construction stormwater accounted for 25 of 52 enforcement actions. (Of these 25 actions eleven (11) were air quality matters and fourteen (14) were construction stormwater matters.) The types of cases follow the trend of settlements from the first quarter of 2018 where air quality and construction stormwater citations also topped the list.
* Of the top four penalties, two of the four were for more than one type of violation (multimedia inspections). Furthermore, three of the largest settlements involved allegations of hazardous waste violations. Penalties in these four actions with the largest penalties were $49,325, $30,000, $20,000 and $20,000, respectively, totaling $119,325 in civil penalty assessments.
* The MPCA has the authority to collect civil penalties of $25,000 per day of violation for violations that relate to hazardous wastes and $10,000 per day for all other kinds of violations (e.g. air quality, water quality, stormwater, solid waste, tanks, spills). Two of the four cases that were resolved involved industrial wastewater violations.
* Lastly, they announced it also has 42 ongoing enforcement investigations. The MPCA opened 19 new cases were opened during the second quarter of 2018. The process of resolving pending MPCA enforcement cases may take months and in some cases over a year’s time.
Please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. Joseph Maternowski is an attorney in private practice. Furthermore, he advises clients on compliance matters as well as on commercial and residential real estate transactions and on litigation.
Mr. Maternowski, whose offices are in Minneapolis Minnesota, assists clients on matters in the Upper Midwest and across the country. Mr. Maternowski began his career in the Minnesota Attorney General’s Office where he was assigned to the Environmental Protection Division. In private practice Mr. Maternowski now assists clients in responding to information requests, alleged violation letters and other demands received from federal and state agencies including the U. S. Environmental Protection Agency (EPA) and the MPCA. As a trusted legal adviser Mr. Maternowski also assists clients who are conducting environment audits and developing Environmental Management Programs to check their compliance status. Finally, for additional information please contact:
Joseph G. Maternowski
Hessian & McKasy, PA
T: (612) 746-5754