Presentation on theme: "MassDEP Environmental Enforcement MassDEP Enforcement Case Study"— Presentation transcript:
1 MassDEP Environmental Enforcement MassDEP Enforcement Case Study Presented by Irfan Nasrullah, Esq.Law Office of Irfan Nasrullah, P.C.11 Grove StreetHopkinton, MA 01748Introduce myselfQualifications – MSEL/AG/DEPWhat I have come to understand is most everyone wants to be in compliance but they don’t understand what they have done wrong.
2 DEP Enforcement Cases DEP Facility Inspection Company A Company B Company CMinor ViolationNONSeries of MinorViolations,Prior NONHigher LevelEnforcementClass I ViolationEstablish basisfor daily penalty
3 Higher Level Enforcement Options Regional Enforcement Review CommitteeMade up of legal staff, Section Chiefs, Regional Director, Deputy Regional DirectorsObjective is to vet the inspection results to the most seasoned professionals at the Region
4 Environmental Law in a Nutshell Three basic approaches to environmental law. Whether we are talking about land, water or air, it will all come down to:Permit Approach – Clean Air Act, Clean Water Act, and Massachusetts CounterpartsStrict Liability – CERCLA, 21EManifest System – Hazardous Waste, RCRA, 21C
5 Permit ApproachReflects the balance understanding that polluting is sometimes necessary for economic purposesBalances economic interests and environmental interests by not allowing unfettered pollution, but instead restricting the amount of pollution
6 Strict LiabilityThis doesn’t regulate the polluter per se, but instead stands for the principle that if you made a mess, clean it up.Once you find/create the mess, then you must clean it up.CERCLA/21E both require cleanup once discovered.Contains timelines for completing the cleanupDiscovery trigger raises the question of hiding your head in the sand.Strict notification timelines and requirements.
7 Manifest System Cradle to grave approach. Dangerous byproducts managed appropriately from generation to transportation and disposal.One manifest signed off by each handler
8 Navigating AG Enforcement Company BNavigating AG Enforcement
9 Referral to Attorney General Office Particularly egregious activityViolation of one of the three basic approaches to environmental lawMidnight dumpingFalsifying reports
10 Attorney General Referral Will require corrective actionSubject to statutory penalties
11 Statutory Penalties Clean Water Act – Shall be punished by not less than two thousand five hundred dollars nor more than $50,000, orby imprisonment for not more than one year, or by both; orshall be subject to a civil penalty not to exceed $50,000 per day of such violation
12 Clean Air Act Criminal Penalty by a fine of not more than twenty-five thousand dollars, orby imprisonment for not more than one year, orboth such fine and imprisonment; or
13 Clean Air Act Civil Penalty Not more than twenty-five thousand dollars for each violation.Each day or part thereof that such violation occurs or continues shall be a separate violation.
14 NAVIGATING MASSDEP ENFORCEMENT Company BNAVIGATING MASSDEP ENFORCEMENT
15 Unilateral Administrative Order (UAO) & Penalty Assessment Notice (PAN) UAO/PANUAOUAO alsoFunctions asNONPANOrder to ceasenoncompliance, takeremedial measuresPrecondition mustbe satisfiedPenaltyadjustment factors
16 Inspection Reveals Violations Class I Violations:Registered Small Quantity Generator acting as a Large Quantity GeneratorEmitting pollutants to the ambient air without a permit (plan approval)Class II Violation:Failure to place a sign by the Hazardous Waste Accumulation Area
17 Format of an Enforcement Conference DEP representatives including inspector and at least one other DEP member.You bring legal counsel then DEP brings legal counsel.Goal is to reach a settlement in terms of penalty amount and actions.Facility has opportunity to present their case and propose alternate penalty amount.
18 Preparation What is your excuse What have you done since Understand the violation/penaltyWhat have you done sinceDemonstrate good faithEven just hiring a consultant is a very good first stepWhat costs have been expended to come into complianceCome with a plan for returning to compliance if not already completed
19 Unilateral Administrative Order Order to cease noncomplianceRequires remedial measuresAllows for an Adjudicatory HearingPreliminary screening within DEPAdjudicatory Hearing at the Division of Administrative Law Appeals (DALA)
21 Preconditions for Issuing a Penalty Prior Notice of Noncompliance (daily penalties allowed)Pattern of noncomplianceWillful and not the result of errorSignificant impactSpecific to 21E and 21CThe department may assess a civil administrative penalty on a person who fails to comply with any provision of any regulation, order, license or approval issued or adopted by the department, or of any law which the department has the authority or responsibility to enforce; provided, however, that such noncompliance occurred after the department had given such person written notice of such noncompliance, and after reasonable time, as determined by the department and stated in said notice, had elapsed for coming into complianceconsisted of failure to promptly report to the departmentany unauthorized disposal of hazardous waste, as is defined by chapter twenty-one C; orany unauthorized release or discharge of oil or hazardous material into the environment, as are defined by chapter twenty-one E; or(5) consisted of failure to maintain a permanent solution or a remedy operation status, pursuant to chapter 21E; or(6) consisted of failure to comply with the terms of an activity and use limitation pursuant to section 6 of said chapter 21E or consisted of knowingly making, or causing any person to make, a false, inaccurate, incomplete or misleading statement in a document submitted to or required to be kept by the department.
22 Precondition Satisfied 3 tiered approach to monetary penaltiesClass I – worst violation from DEP perspective – not to exceed $25,000Operating without an air permitRegistered as SQG but acting as LQGHazardous waste storage times exceededClass II – Not to exceed $1000Improper hazardous waste labelingLack of certain recordkeepingClass III- No penalty less than $100engaging in any business or activity without a license or other authorization from the department, whenever engaging in such business or activity requires such license or authorization by the department;failure to promptly report to the department each unauthorized disposal of hazardous waste, as defined by chapter twenty-one C; and failure to promptly report to the department each unauthorized release or discharge of oil or hazardous materials into the environment, as defined by chapter twenty-one E,DEP doesn’t just start at $25,000.00, G.L. 21A, §16 requires that DEP consider certain factors in determining the penalty amount.
23 Penalty Adjustment Considerations Impact on public health, safety and welfare and the environment;Damages and costs suffered or incurred by the commonwealthGood faith or lack thereofPrevious failure to complyDeterrenceIn determining the amount of each civil administrative penalty, the department shall include, but not be limited to, the following in its considerations:Good Faith:whether the person being assessed the civil administrative penalty took steps to prevent noncompliance, to promptly come into compliance and to remedy and mitigate whatever harm might have been done as a result of such noncompliance;Impact – AKA Gravity, how bad was the violation in terms of impact to the environment(Potential discussion Point) Air Quality – pollution control equipment not working. Generator on stand-by, not operating. – Still potential discharge of emissions to the environmentDeterrence – making noncompliance more costly than compliance. Also consider making amount punitive enough that penalty does not become a cost of doing business.MA DEP may adjust the penalty upward or downward.
24 Penalty AdjustmentWhat penalty number gets adjusted upward or downward?DEP calls the starting number a “bucket”Class I Bucket typically starts at $5,000 to $7,500. Some start at $20,000Mandatory back compliance fees
25 NAVIGATING MASSDEP ENFORCEMENT Company CNAVIGATING MASSDEP ENFORCEMENT
26 Administrative Consent Order with Penalty (ACOP) Recital of ViolationsRequires Return toCompliancePenaltyStatutoryAdjustmentsEnforcementPolicies
27 ACOP Negotiations Generally more flexibility in settling both Penalty amount (same penalty adjustment considerations as with PAN); andActions to be taken and timelines, but must return to complianceUsually will either require a plan to return to compliance or sometimes they will just order you cease certain activities.Penalty amount, still need to take into consideration the adjustment factors, but DEP may be a bit more liberal with downward adjustments.Sometimes despite all your adjustments, penalty is still too high. Then what?
28 Format of an Enforcement Conference DEP representatives including inspector and at least one other DEP member.You bring legal counsel then DEP brings legal counsel.Goal is to reach a settlement in terms of penalty amount and actions.Facility has opportunity to present their case and propose alternate penalty amount.
29 Preparation What is your excuse What have you done since Understand the violation/penaltyWhat have you done sinceDemonstrate good faithEven just hiring a consultant is a very good first stepWhat costs have been expended to come into complianceCome with a plan for returning to compliance if not already completed29
30 Penalty Mitigation Policies Financial inability to Pay (not policy)Environmental Audit - Self disclosure policyHomeowner PolicySmall Business PolicySupplemental Environmental ProjectsFinancial Inability to pay is not really a formal policy, but it is taken into consideration both as a penalty adjustment, and as a reason for mitigating an adjusted policy. Will have to complete a form that is run through a program to determine how much you can pay.
31 Environmental Audit Self Disclosure http://www. mass Systematic DiscoveryVoluntary DiscoveryPrompt DisclosurePrompt RemediationPrevent RecurrencesNo Previous Higher Level EnforcementEnforcement includes action by Attorney GeneralAt same facilityNot part of a pattern at the same facility
32 Self Disclosure Penalty Reduction Violations discovered and disclosed through environmental audit100% MitigationViolations discovered and disclosed by other means75% Mitigation
33 Supplemental Environmental Projects Allows payment toward an environmentally beneficial project rather than penaltyBuy HAZMAT equipment for Fire Dept.Implement an EMSPenalty Reduction up to 75%Allows for control over public relations by regulated entity
34 Small Business Policy Less than 10 FTE Not a Large Quantity Generator of HWNot NPDES MajorNot Branch officeNot Franchise
35 Small Business Policy Return to compliance No Actual Harm Not criminal Maintain future complianceInvestigate pollution preventionThen DEP may waive entire penalty
36 A Settlement is Reached… Now What? Formal written consent order is issued and signed by facility and DEP.Requirement to pay penalty within 30 days by certified check.Consent order includes stipulated penalties in event of repeat violations.A news release is issued which may be posted on DEP website.A DEP reinspection.New release is not up negotiation, but who writes it? Inspector writes it, so maintain a good relation and you may be able to help mold it into what you want. Not a formal negotiation, but the informal suggestions may be taken into account.