The State of Minnesota through the Minnesota Pollution Control Agency (MPCA) has the authority to seek penalties of $10,000 per day of violation of environmental statutes, regulations or permits in a civil action brought in state district court through an action by the Attorney General. Minn. Stat. §115.071. If the alleged violations relate to the handling of hazardous wastes, the State may seek up to $25,000 per day of violation. Minn. Stat. § 115.071 provides that the civil penalties are to be determined by a judge in an action brought by the Attorney General on behalf of the MPCA.
When the MPCA learns of violations through an inspection, otherwise observes violations, or deems violations to be serious or repeated, the MPCA may propose that the regulated party enter into a Stipulation Agreement, one of the MPCA’s enforcement tools. A Stipulation Agreement, a negotiated out-of-court settlement, resolves alleged violations, provides for the payment of a civil penalty and requires the completion of corrective actions. The payment of a civil penalty through the negotiated Stipulation Agreement settles claims that the State could have brought against the regulated party in a court action.
Given the seriousness of the violations and the assessment of a civil penalty, it is prudent for regulated parties to seek legal advice when the MPCA proposes a Stipulation Agreement. Counsel can assist in representing the regulated party’s interests, explaining the process and negotiating key terms, including the level of civil penalty. In some cases after review of the context of a case and the regulations counsel may be able to challenge alleged violations and/or mitigate the civil penalty.
As an alternative, to address noncompliance the MPCA may elect to unilaterally issue an Administrative Penalty Order (APO) to resolve alleged violations. Minn. Stat. § 116.072. Currently, the MPCA chooses to resolve the vast majority of violations through issuance of APOs. Because an APO is issued unilaterally by the MPCA, the terms of an APO are not negotiated. In advance of issuance of an APO the MPCA typically asks the party through a 10-day letter or an Alleged Violations Letter (AVL) to provide additional facts or defenses to the alleged violations that the MPCA should consider before it takes final action. This is a critical step where counsel can be of assistance. A response to a 10-day letter or AVL should be carefully considered. When issuing an APO, the MPCA may seek a penalty of up to $20,000 for all violations observed in an inspection. The MPCA has the authority to order specified corrective actions.
A party receiving an APO may seek judicial review in state district court or through an expedited administrative hearing. If a request for review is filed, it may be possible to negotiate a settlement. Otherwise, the matter goes to a hearing before a judge (appeal to district court) or an administrative law judge (expedited administrative hearing).
The MPCA issues quarterly reports that summarize enforcement actions taken in the previous quarter. The vast majority of the enforcement cases brought by the MPCA were addressed through APOs where regulated parties paid $20,000 or less to resolve violations. Areas of alleged violations noted by the MPCA included: air quality, asbestos, hazardous wastes, water quality, stormwater, feedlots, underground storage tanks, and individual sewage treatment systems. The average penalty paid was under $5,000. In cases involving serious or repeated violations or issuance of a Stipulation Agreement the MPCA may choose to issue a press release advising the public of the settlement.
In cases where violations were noted and resolved through either a Stipulation Agreement or an APO, the MPCA reserves the right to enhance penalties if any violations are found in the future.
In addition to civil and administrative remedies the State of Minnesota has the authority to refer cases to prosecutors pursue criminal charges for knowing violations of Minnesota statutes and regulations. Minn. Stat. § 609.671. Criminal prosecutions are unusual, but the State has the authority to prosecute in cases where there is a threat to public health or an egregious, knowing violation of the law. The State and MPCA may alternatively choose to refer certain cases to the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice.
If you or your business receives an inspection notice, a Letter of Warning, a 10-Day Letter, an Alleged Violations Letter (AVL), a Notice of Violation (NOV), Request for Information (RFI), a Stipulation Agreement, an APO or similar notice from the MPCA, the EPA or another federal or state agency, we recommend that you immediately seek the advice of qualified counsel prior to responding. The MPCA and the EPA often use these notices as discovery tools where they seek admissions.
Hessian & McKasy attorney Joseph Maternowski has extensive experience in defending enforcement actions brought by federal and state authorities, such as the MPCA and the EPA.
Hessian & McKasy’s environmental attorneys handle the full spectrum of environmental issues encountered by manufacturers, businesses, units of local government, developers and individuals who have been named in an administrative, civil or criminal enforcement actions. We are regularly involved in negotiations on behalf of our clients with state and federal authorities.
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For additional information please contact:
Joseph G. Maternowski
Hessian & McKasy, PA