Minnesota Pollution Control Agency Negotiations

The Minnesota Pollution Control Agency (“MPCA”) is the State agency charged with issuing permits and conducting inspections of operations that are subject state environmental statutes and regulations.  MPCA staff conduct periodic inspections of regulated parties. MPCA staff also inspect companies in response to complaints received from citizens.

In cases where the MPCA staff find non-compliance, the MPCA may choose to take enforcement action. As we have noted before in this blog, in the case of violations which are deemed to be less serious, the MPCA often chooses to issue an Administrative Penalty Order (“APO”).  Under the APO authority, the MPCA may seek a penalty of up to $20,000 per inspection and order the completion of corrective actions.  A party receiving an APO may seek review in state district court or before an Administrative Law Judge (ALJ).  The MPCA issues quarterly enforcement reports describing the enforcement actions taken in the previous quarter.

Another enforcement option available to the MPCA to resolve noncompliance is for the MPCA to propose and negotiate a Stipulation Agreement.  MPCA chooses a Stipulation Agreement as an enforcement tool in cases when it has determined that the alleged violations are very serious or repeat in nature. In general, the MPCA seeks civil penalties in excess of $20,000 when it proposes a Stipulation Agreement. Under a Stipulation Agreement a regulated party is required to complete corrective actions as determined by the MPCA.

There is no requirement for a regulated party to have an attorney at a negotiation with the MPCA. MPCA staff are under no obligation to advise a regulated party of its legal rights. Practically speaking, if a party has not been involved with the MPCA enforcement processes before, it may be at a disadvantage without a lawyer providing advice. For this reason, many regulated parties find that consulting with and involving an attorney in the negotiation process has value. Since Stipulation Agreements involve the assessment of civil penalties, there are significant monetary considerations. The penalties that may be assessed can add up to very 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. In addition, it is the MPCA’s policy to publicize its settlements.  Often the MPCA issues a press release to local media advising the public of the alleged violations and the civil penalty that has been agreed to.

Before and during negotiations 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;
  • Draft or revise correspondence regarding the MPCA’s enforcement 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;
  • Assist in negotiating an appropriate monetary settlement;
  • Negotiate the terms of the Stipulation Agreement;
  • Review the appropriateness of corrective actions; and
  • Assess whether a Supplemental Environmental Project may be available to mitigate a civil penalty.

A regulated party can ask their attorney to give them options as to legal representation. An attorney can advise about all aspects of the case. If a regulated party is comfortable with proceeding on its own, company representatives can attend negotiation sessions with the MPCA on their own without counsel. However, depending on the facts and circumstances of a particular case and the potential exposure to civil penalties, a regulated party may choose to have an attorney to appear during the negotiation process to represent their interests. If a regulated party decides to have a lawyer at the negotiations, the MPCA will have their counsel present as well.

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. A regulated party needs to hear and understand the MPCA’s case and prepare an appropriate response.  Counsel for the regulated party may be able to share a unique perspective on the case and help develop and present a defense. If the issues are technical in nature, plant staff or your consultant may also 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 elements of the case. These issues should be corrected as they may bear upon the result and impact the penalty that may be assessed or corrective actions that may be required.

If a regulated party finds itself involved in negotiations with the MPCA, the regulated party should consider contacting an experienced lawyer who can guide you through the MPCA’s process. The attorneys at Hessian & McKasy’s Environmental Practice Group deal regularly with federal, state and local environmental agencies.

Please feel free to contact Joseph G. Maternowski at 612-746-5754 or jmaternowski@hessianmckasy.com  This article provides general legal information only and is not intended to be legal advice or opinion on any specific facts, issues or circumstances. Readers with specific legal questions should consult with their attorney and review the disclaimer at the top right of this website.