Enforcement and Permitting Proceedings

We represent parties who receive notices of enforcement action from federal or state environmental authorities, such as the U.S. Environmental Protection Agency (EPA) or the Minnesota Pollution Control Agency (MPCA). We assist clients in responding to Notices of Violation, Requests for Information (RFI) or other forms of enforcement actions arising out of inspections and findings of alleged violations of environmental statutes or regulations.

Federal or state environmental authorities may seek to conduct an inspection based on a citizen complaint. In other cases, an inspection may be triggered as part of a routine program review or after review of information submitted by regulated parties to these authorities.

Typically, an inspector does not call a regulated party prior to an inspection. Rather, the inspector arrives unannounced and simply presents his or her credentials. Regulated parties should consult with qualified counsel if they have questions as to how to respond to an inspection.

Most environmental statutes and permits issued by federal, state or local authorities provide that governmental agents have a right to enter onto private property to conduct an inspection. If a government inspector is denied access by a property or business owner, the inspector may seek an administrative search warrant from a judge and return with a representative from a law enforcement agency to conduct the inspection.

In cases where there are allegations of intentional environmental violations, an inspector along with law enforcement personnel may arrive armed with a criminal search warrant. After review of affidavits prepared by the governmental authorities, a judge may authorize entry and the seizure of samples or documents related to the government’s investigation. Once again, regulated parties should consult with an experienced attorney to get advice as to how to respond to inspectors. This is especially critical when a criminal search warrant is being executed.

What happens during an inspection? An inspector will very likely ask to observe areas: 1) where waste generating operations are conducted, 2) where wastes are stored, or 3) areas where treatment or pollution control equipment are operated. An inspector may take photographs, collect samples, conduct interviews and ask to review documents including manifests documenting waste shipments, personnel training records or site contingency and emergency plans.

In cases where the EPA, state or local authorities believe that they have discovered apparent violations, the inspector may, upon completion of the inspection, advise the regulated party that certain observed conduct constitutes a violation. In other instances, the inspector may suggest that a violation has been documented, but may elect to return to his or her office, review the facts and regulations, discuss the findings with others including supervisors and, at some later date, choose to issue either a Notice of Violation or a Request for Information to the regulated party.

Given the potential for the imposition of civil or administrative penalties, or an order seeking corrective actions, regulated parties should give careful consideration to contacting counsel to review any Notice of Violation or Request for Information prior to submission of a response.

At Moss & Barnett, P.A., we counsel our clients as to how to prepare for and respond to government inspections. When an inspection reveals a potential violation, we work with our clients in promptly addressing the issues so that penalties and expensive enforcement actions will be minimized. We also assist clients in addressing corrective action requirements. We work with clients to develop tailored environmental audit programs and environmental management systems to minimize potential violations and to ensure speedy correction of any identified issues or concerns.

Environmental Permitting Proceedings. Federal and state environmental statutes and regulations require parties to obtain certain environmental permits prior to commencing or changing certain operations. For example:

• Businesses that produce wastewaters that are to be discharged to the sewer may need to obtain a wastewater discharge permit from the entity that is responsible for the operation of the sewer system and manages the Publicly Owned Treatment Works (POTW).

• Manufacturers whose operations produce air emissions may be required to obtain an air emissions permit from the state or local agency charged with permitting such operations. Often a detailed technical review of equipment, operational schedules and plant capacity is required to determine if a permit is needed.

• Any business that generates hazardous waste - waste that is toxic, corrosive, flammable, reactive or contains certain listed hazardous components - may need to obtain a license or permit to produce the waste and to ensure that these materials are being properly managed at permitted facilities.

• A developer may need to obtain a stormwater construction permit to ensure that runoff from exposed soils is contained on site and does not flow to any nearby waters. Most permits require that a Stormwater Pollution Prevention Plan (SWPP) be prepared prior to commencement of site preparation.

Depending on the type of business operations, a range of other permits or licenses may be required to operate in accordance with federal, state or local law. The number and type of permits or licenses that may be required may vary based on the type of operation and where a facility is located.

When our clients start a new business, acquire an existing business or plan a business expansion, the attorneys at Moss & Barnett provide counsel as to the permitting procedures and obligations that may apply. We also work with attorneys in our Corporate and Real Estate Practice Groups on other aspects of these transactions.

We work closely with our clients, in-house staff and outside technical consultants to determine what permits may be required for specific operations. When appropriate, we assist with the negotiation of permit terms and conditions with regulatory authorities. We work with clients to develop environmental audit programs and environmental management systems to minimize potential violations and to ensure speedy correction of any identified issues or concerns.

These materials have been prepared by Joseph G. Maternowski of Moss & Barnett P.A. for informational purposes only and are not legal advice. Please read the Disclaimer that appears at the bottom of this page.