State Enforcement of Environmental Laws, Regulations and Permits in Minnesota
Minnesota businesses, units of local governments and individuals who fail to comply with environmental statutes, rules, regulations or permit terms may face an enforcement action brought by federal, state or local authorities. In Minnesota, violations of state law, regulations and permit terms are typically enforced by the Minnesota Pollution Control Agency (MPCA).
The MPCA uses a variety of enforcement tools to address alleged noncompliance. In cases where a violation has occurred, the MPCA may choose from several enforcement options including:
- A Field Citation may be issued with a penalty for more routine violations relating to solid waste, spills, tanks and septic systems. The statute authoring field citation contains a schedule of penalties for specific violations.
- A Letter of Warning (LOW) is used to document violations and require corrective actions.
- A Notice of Violation (NOV) is used to document violations where it may take longer than thirty days to correct violations.
- An Alleged Violations Letter (AVL) or Ten-Day Letter is sent to a regulated party after an inspection or document review and asks the regulated party to advise the MPCA of facts or a company’s position related to conditions that may constitute alleged violations. An AVL or Ten-Day Letter may be followed by an Administrative Penalty Order (APO) or a Stipulation Agreement.
- A Red Tag can be issued for violations related to underground storage tanks. Delivery of petroleum product is prohibited until the violations are tank related violations are resolved.
- The MPCA has the authority to issue a Request for Information (RFI) to seek more information about an instance of alleged non-compliance. Depending on the response, another type of enforcement action may follow.
- A Schedule of Compliance is a negotiated document that resolves noncompliance without the imposition of a penalty. Failure to follow the schedule may result in the assessment of stipulated penalties.
In cases where there are more serious or repeated violations of statutes, regulations or permit terms, the MPCA typically uses an Administrative Penalty Order (APO), a Stipulation Agreement or a Consent Decree to address the matter.
An APO may require a party to pay a penalty and to undertake specified corrective actions. In recent years the MPCA has issued APOs to address many types of violations. The maximum penalty that can be assessed by the MPCA administratively in an APO is $20,000. APOs can be forgivable, where a penalty is forgiven if violations ore corrected, or non-forgivable where an administrative penalty is assessed due to the serious or repeated nature of the alleged violations. The MPCA may also choose to issue an APO with both forgivable and non-forgivable components. A party who receives an APO may seek review before an Administrative Law Judge (ALJ) from the Minnesota Office of Administrative Hearings or before a judge in state district court.
In cases where the MPCA deems the alleged violations to warrant a higher penalty or where extensive corrective actions are required, the MPCA may propose that a party enter into a Stipulation Agreement. A Stipulation Agreement is essentially a negotiated out-of-court settlement. If the MPCA chooses to use the Stipulation Agreement tool, the MPCA applies the MPCA Civil Penalty Guidelines to determine an appropriate civil penalty to be paid to the state. In most cases the MPCA prepares a “Penalty Calculation Worksheet” that describes how the MPCA Civil Penalty Guidelines were applied to a specific case.
When the MPCA seeks a civil penalty, the MPCA reports that the penalty amount is determined based on consideration of the following factors:
- The potential and/or actual impacts a violation posed to public health and the environment;
- The level of non-compliance;
- Whether the violation was intentional or accidental;
- How prompt and cooperative the regulated party was in correcting the problem;
- Whether the violation was an isolated incident or part of a pattern of violations; and
- Whether a business gained an economic benefit from the violations.
The terms of a Stipulation Agreement, including the proposed penalty or specified corrective actions, are negotiable. Although the MPCA will (and may well prefer to) negotiate directly with a regulated party who is not represented by an attorney, parties should strongly consider retaining an environmental attorney to assist with the negotiation process. An experienced environmental lawyer can advise a party and provide counsel as to the settlement terms and the implications of a settlement.
When dealing with a regulatory agency, there is a great deal at stake. These negotiations may result in the payment of significant penalties and require the implementation of expensive corrective actions. In most cases with a monetary penalty of $10,000 or more the MPCA publicizes the settlements and issues a press release that is circulated to media outlets. Publicity can affect the businesses reputation in the community. It may be possible to mitigate a portion of a civil penalty by proposing a Supplemental Environmental Project.
Most cases are resolved administratively by the MPCA without the assessment of a monetary penalty. Penalties are sought or assessed in cases of repeat violations or where the MPCA considers the violations to be serious or to have resulted in environmental harm. The MPCA derives its authority to seek and impose civil penalties in a Stipulation Agreement through Minn. Stat. 115.071, which provides that the MPCA may refer the matter to the Attorney General’s Office where a civil action may be filed on behalf of the State of Minnesota in state district court. The State may seek penalties of $10,000 per day of violation. If the violation involves hazardous waste, the State may seek penalties of up to $25,000 per day of violation. In many cases settlements of enforcement matters are memorialized in Consent Decrees where the Court may have continuing jurisdiction of a matter.
Litigation is a last resort for the MPCA and the State of Minnesota. Because of the expense and time associated with filing and prosecuting a civil case, most cases are resolved through other less burdensome administrative means. In cases where the U.S. Environmental Protection Agency (EPA) retains jurisdiction through an environmental program delegated to the State of Minnesota, the MPCA may make a referral of an enforcement matter to the federal authorities.
At Hessian & McKasy, our environmental attorneys regularly help clients respond to MPCA enforcement processes and represent parties before the MPCA in negotiations.
Joseph Maternowski, Chair of Hessian & McKasy’s Environmental Law Practice Group, is familiar with the MPCA’s processes, procedures, staff and counsel from the Attorney General’s Office. Mr. Maternowski, an environmental attorney who began his career in the Attorney General’s Office works closely with clients to review background matters related to the alleged violations and determine whether the facts support the MPCA’s allegations. The review of each case includes an assessment of potential liability exposure. Mr. Maternowski applies his extensive background and skills to craft a negotiation strategy that is designed to minimize liability exposure and assist each client in returning and maintaining its compliance status.
Please see the disclaimer at the top of this page that relates to limitations on this blog and to legal advice. For information on responding to enforcement actions brought by the MPCA please contact:
Joseph G. Maternowski
Hessian & McKasy, PA