June 6, 2007

A recent administrative case, In the Matter of Service Oil, Inc., Docket No. CWA-08-2005-0010,http://www.epa.gov/aljhomep/orders/service-oil-id-080307.pdf brought by the U. S.Environmental Protection Agency (EPA) illustrates the business risks on relying on non-legal professionals to advise you on legal issues.  At the administrative hearing, the EPA sought a $40,000 penalty from a company for failing to obtain a stormwater permit for a new developmentand for failing to comply with the requirements of the permit once it was obtained.

As indicated in the case, the company argued that there should be a reduction in the penalty amount because of its lack of prior violations and because of its reliance on the construction professionals, a contractor and an engineer, that it hired for the project. The EPA’s administrate law judge, however, did not find these arguments very persuasive.  The judge stated that it is the duty of every citizen to comply with the law and that everyone must use reasonable diligence in ascertaining this duty.

As noted in the case, a reasonable and prudent person does not rely upon an impression, but would consult the current law.  The judge was somewhat sympathetic that the company was under the reasonable, albeit erroneous, impression a layman might have that its contractor and engineer would be familiar with whatever regulatory requirements applied and, more importantly, would, unprompted, advise it of these requirements.

On the other hand, the judge noted that the development was a $10,000,000 construction project which the company chose to handle in a very informal manner — the written agreements with the contractor and engineer were inadequate and the company never consulted with an attorney in connection with the project.  Ultimately, the judge reduced the penalty by $4,360 because the judge believed that the company’s culpability was somewhat reduced due to the contractor’s and engineer’s failure to have knowledge of the applicable law.

This fact scenario is not uncommon.  Many individuals and businesses rely on non-legal consultants and contractors to advise them on the law and to try to obtain required permits.  However, consultants, contractors and engineers are generally trained to give advice on technical issues and to prepare and analyze technical information while an attorney is trained to give advice on the law and compliance-related determinations.  Parties also often contact agency staff and seek advice as to how regulations or statutes may apply to a specific operation.  Government employees, however, may not be familiar with all aspects of the legal requirements and should not be relied upon.

For various reasons, some individuals and businesses do not consult with an attorney until the local, state or federal agency has taken an adverse position.  For example, the local zoningauthority may have denied a requested development permit or a local, state or federal environmental agency may have issued a notice of violation or complaint.  Generally, it is very hard to convince a government employee or agency to change a position, even when that position appears to be inconsistent with the law.  Although there is no guarantee that consulting with an attorney beforehand will prevent these unfortunate situations, each person must decide whether the development, project or business is important enough that it makes business sense to consult with an attorney before acting.

Hessian & McKasy’s Environmental Law Attorney Practice Group has extensive experience securing development and environmental permits and helping clients through the maze ofregulatory requirements in a cost effective manner. As environmental lawyers we defend clients who face penalty demands from the EPA or state environmental agencies.  We also work with clients to develop auditing and environmental management programs to prevent or minimize potential violations.

Please feel free to contact Joseph G. Maternowski 612-746-5754 or jmaternowski@hessianmckasy.com

The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy P.A.


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