February 21, 2011

Robert in Minnesota asked the following question:

Question: “The Minnesota Pollution Control Agency (MPCA) conducted an inspection of our plant. The MPCA sent a Notice of Violation and now they are telling us we need to meet soon and negotiate a Stipulation Agreement. The MPCA staff suggests that I do not need a lawyer. Do I need to hire an attorney? What does an attorney bring to the process?”

Response: Thanks for your question. As explained below on our disclaimer, we do not have an attorney client relationship with anyone who sends a question or readers of articles or blog posts on this website. Nevertheless, we appreciate your question and will respond in a general way to your inquiry.

Based on your question, it appears that the MPCA is on a path to issue a Stipulation Agreement. Typically, the MPCA chooses a Stipulation Agreement as an enforcement tool in cases when it has determined that the alleged violations are serious or repeat in nature. In general, the MPCA seeks civil penalties in excess of $10,000 when it proposes a Stipulation Agreement.

There is no requirement to have an attorney at a negotiation with the MPCA. You should understand that the MPCA staff are under no obligation to advise you of your legal rights. Practically speaking, if you have not been involved with MPCA process before, you may be at a disadvantage without a lawyer providing advice. For this reason, you may find that consulting with an attorney has value. Since these matters involve the assessment of civil penalties, there are significant monetary considerations. The penalties that may be assessed can add up to large numbers. The MPCA can seek penalties of up to $10,000 per day of violation for violations of environmental rules, permits or statutes. For violations involving hazardous wastes, the MPCA may seek penalties of up to $25,000 per day of violation.

An environmental attorney can provide help in the following ways:

  • Describe the MPCA’s enforcement process;
  • Advise you about the MPCA’s authority to take action;
  • Assess the merits of the MPCA’s case;
  • Determine if you may have defenses;
  • Explain the MPCA’s civil penalty determination process;
  • Provide information about similar cases;
  • Draft or revise correspondence regarding the MPCA’s enforcement action;
  • Assist in negotiating an appropriate monetary settlement;
  • Review the appropriateness of corrective actions; and
  • Assess whether a Supplemental Environmental Project may be available to mitigate a civil penalty.

As a client, you can ask your attorney to give you options as to legal representation. An attorney can advise you about all aspects of the case. If you are comfortable with proceeding on your own, you can attend negotiation sessions with the MPCA on your own without counsel. However, depending on the facts and circumstances of your case and your potential exposure to civil penalties, it may be a good idea to have an attorney with you during the negotiation process to represent your interests.

The negotiation sessions relating to the Stipulation Agreement terms are critical. The MPCA will describe its case and the basis for its decision to take the action that is proposed. You need to hear and understand the MPCA’s case and prepare an appropriate response. Your attorney may be able to share a unique perspective on the case and help you develop a defense. If the issues are technical in nature, your plant staff or your consultant may need to be in attendance. Environmental compliance issues are often complex. It is important that everyone has a full and clear understanding of the issues in dispute. It is not unusual for there to be misunderstandings about some element of the case. These issues should be corrected as they may bear upon the result and impact the penalty that may be assessed.

We hope this response has been helpful to you. If you are involved with negotiations with the MPCA, we urge you to consider contacting an experienced lawyer who can guide you through the MPCA’s process. The attorneys at Hessian & McKasy’s Environmental Law Attorney Practice group deal regularly with federal, state and local environmental agencies. We offer innovative legal services packages to our clients. To learn more about these packages, please visit:https://www.enviroattorney.net/sample-price-list.php. To learn more about the MPCA’s enforcement process please see: http://www.pca.state.mn.us/index.php/regulations/reporting-and-enforcement/enforcement/enforcement.html. For information about our attorneys please visit us at: https://www.enviroattorney.net/attorneys/joseph_g_maternowski.php.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.


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