February 18, 2012  In February 2012, the Minnesota Pollution Control Agency (MPCA) issued a report summarizing enforcement actions taken during the fourth quarter of 2011.  In 2011, the MPCA announced that it had completed a total of 159 enforcement cases.  The MPCA is authorized by Minnesota law to seek penalties for noncompliance with State statutes, rules and permits on a range of environmental matters.  Minnesota law provides that the MPCA may seek penalties of up to $25,000 per day of violation.  The MPCA seeks to resolve most cases administratively through either Stipulation Agreements, out-of-court settlements, or through Administrative Penalty Orders (APOs) where it may seek a maximum of $10,000 per inspection.  A recipient of an APO may seek review before an Administrative Law Judge or before a judge in state district court.

Under Minnesota law, the MPCA has the authority to refer any case to the Minnesota Attorney General’s Office for prosecution where a state district court judge determines whether violations occurred and whether a civil penalty shall be paid.  Cases that involve knowing violations may be referred to County Attorneys for review for possible criminal prosecution as felonies, gross misdemeanors or misdemeanors.  Conduct that is considered a violation of state environmental law may also constitute a violation of federal environmental law.  Cases may also be referred to the U.S. Environmental Protection Agency (EPA) or the U.S. Department of Justice (DOJ) for review and possible prosecution.

In the fourth quarter of 2011 the MPCA collected nearly $1.2 million in penalties.  Over $1.0 million of the total penalties paid came in two cases, one involving a St. Paul Park, Minnesota refinery with alleged water and air quality violations ($700,000), and the other involving a Winnebago, Minnesota ethanol plant that was cited for alleged air quality violations ($310,000).  The penalties in the remaining twenty five other enforcement cases ranged from $52,000 for alleged water quality violations at a packing plant in Long Prairie, Minnesota to a $650 penalty assessed against a Bovey, Minnesota excavating company for alleged storm water and solid waste violations.  In the last case, the MPCA indicated that the penalty would be forgiven if the company completed specified corrective actions.  A report providing details of the enforcement actions can be found on the MPCA’s website at: http://www.pca.state.mn.us/index.php/about-mpca/mpca-news/news-media-center/quarterly-summary-of-enforcement-actions.html?menuid=&redirect=1.

The MPCA report demonstrates that businesses of all sizes, local units of government and even individuals who are subject to environmental requirements need to be vigilant about compliance.  MPCA Compliance and Enforcement Manager Jeff Connell commented on the MPCA’s ongoing enforcement effort by stating: “This is really about balancing our charge to protect the environment while maintaining a level playing field for all businesses.”  Connell also indicated that: “Agency staff continues to provide support and information on how to stay in compliance for any company or local government seeking help.”

Although the MPCA offers assistance to regulated parties, many businesses, local units of government and individuals are wary about contacting the regulators who can initiate an enforcement action when specific situations that may or may not constitute noncompliance are revealed.  Given the complexity of environmental laws, rules and permits, there may not be a straightforward answer to a question as to compliance status.  Because a finding of noncompliance may result in penalties, many parties who have concerns about their compliance status contact third parties to provide an independent assessment.  The environmental law attorneys at Hessian & McKasy, P.A. work with clients, clients ‘ in house staff, consultants and counsel to address compliance issues.

Many clients seek to address the concerns proactively by conducting periodic audits of their compliance status.  An audit, which can be done under the attorney client privilege, can be conducted under a protocol that includes a review of business operations, an assessment of compliance status and potential risk, and development of appropriate corrective actions.  In certain cases, state and federal laws provide for immunity from enforcement actions if notice of noncompliance is properly tendered to the authorities.  A link to a page at the MPCA’s website describing Minnesota’s Environmental Audit Program can be found at: http://www.pca.state.mn.us/index.php/regulations/permits-and-rules/guidance-and-assistance/environmental-audit-program.html?menuid=&redirect=1. Since the law was enacted in 2009, the MPCA reports that forty five (45) Minnesota facilities have received a Green Star designating successful completion of program requirements.  Any party considering conducting an audit, seeking protection of audit findings or immunity should consult qualified counsel to review the particular facts of their operation and the applicability of audit policies and protections to their specific case.

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