Negotiation and defense of Administrative and Civil Penalty Demands

At Moss & Barnett, P.A. we represent businesses, individuals and local units of government in administrative and court proceedings where federal and state authorities, including the U.S. Environmental Protection Agency (EPA) and the Minnesota Pollution Control Agency (MPCA), are seeking civil penalties or fines for alleged environmental violations.

We closely scrutinize the allegations that have been made against our clients. We also carefully review the statutes or regulatory provisions at issue. We advise our clients as to the relative merits of the government’s claims and the legal responsibilities of our clients and affirmative defenses that may be available. We also advise our clients’ of their right to seek administrative or judicial review of agency determinations.

Environmental enforcement actions are often triggered by citizen complaints, information gathered by government agents during an inspection or through the review of documents that may be submitted by a regulated party to federal, state or local environmental authorities. In some cases disgruntled former employees or competitors file complaints that result in inspections.

Environmental authorities often send a Notice of Violation or some other document that notifies the regulated party that a violation is alleged to have occurred or been observed. In most instances, the EPA or the MPCA will ask the regulated party to provide a response including any exculpatory or explanatory information. We assist clients in evaluating allegations contained within Notices of Violation and preparing written responses to the alleged violations.

Generally, the environmental authorities review the regulated party’s response and decide whether to proceed with an administrative enforcement action or a civil proceeding to collect penalties for the alleged violations.

We represent clients in penalty negotiations with federal, state or local authorities where we seek penalty reductions or mitigation. We are aware of past settlements for similar alleged violations as well as agency guidance documents related to penalty calculations. We advise clients as to negotiation of penalty amounts. We also counsel clients about the potential applicability of Supplemental Environmental Projects (SEPs) that may be used to defray a portion of negotiated penalties. We assist with the development and preparation of SEPs that provide an environmental benefit but are also beneficial to our client’s business interests.

When appropriate settlements cannot be reached, we use our experience as environmental litigation attorneys to advise clients of their rights to seek a judicial review in either an administrative forum or in federal or state district court. We appear in contested state proceedings as well as federal proceedings that are held before EPA Administrative Law Judges. We have successfully litigated numerous contested matters alleging violations of state and federal environmental laws. We have prevailed on liability and penalty determinations.

In two Minnesota cases, after we received favorable judgments on liability determinations and penalty assessments for our clients, we sought and received awards of attorneys’ fees for our clients under the Minnesota Equal Access to Justice Act (MEAJA).

MEAJA, which is patterned after the federal Equal Access to Justice Act (EAJA), provides that a regulated party may seek an award of attorneys’ fees if it can show that the State of Minnesota’s case was not “substantially justified.” Under MEAJA, not “substantially justified” means that the state’s position did not have a reasonable basis in law and fact based on the totality of circumstances before and during the litigation or contested case proceeding. See Minn. Stat. § 15.4741, subd. 8.

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.