1. MassDEP Environmental Enforcement MassDEP Enforcement Case Study
Presented by Irfan Nasrullah, Esq.
Law Office of Irfan Nasrullah, P.C.
11 Grove Street
Hopkinton, MA 01748
Introduce myself
Qualifications – MSEL/AG/DEP
What 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 C
Minor Violation
NON
Series of Minor
Violations,
Prior NON
Higher Level
Enforcement
Class I Violation
Establish basis
for daily penalty

3. Higher Level Enforcement Options
Regional Enforcement Review Committee
Made up of legal staff, Section Chiefs, Regional Director, Deputy Regional Directors
Objective 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 Counterparts
Strict Liability – CERCLA, 21E
Manifest System – Hazardous Waste, RCRA, 21C

5. Permit Approach
Reflects the balance understanding that polluting is sometimes necessary for economic purposes
Balances economic interests and environmental interests by not allowing unfettered pollution, but instead restricting the amount of pollution

6. Strict Liability
This 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 cleanup
Discovery 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 B
Navigating AG Enforcement

9. Referral to Attorney General Office
Particularly egregious activity
Violation of one of the three basic approaches to environmental law
Midnight dumping
Falsifying reports

10. Attorney General Referral
Will require corrective action
Subject 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, or
by imprisonment for not more than one year, or by both; or
shall 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, or
by imprisonment for not more than one year, or
both 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 B
NAVIGATING MASSDEP ENFORCEMENT

15. Unilateral Administrative Order (UAO) & Penalty Assessment Notice (PAN)
UAO/PAN
UAO
UAO also
Functions as
NON
PAN
Order to cease
noncompliance, take
remedial measures
Precondition must
be satisfied
Penalty
adjustment factors

16. Inspection Reveals Violations
Class I Violations:
Registered Small Quantity Generator acting as a Large Quantity Generator
Emitting 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/penalty
What have you done since
Demonstrate good faith
Even just hiring a consultant is a very good first step
What costs have been expended to come into compliance
Come with a plan for returning to compliance if not already completed

19. Unilateral Administrative Order
Order to cease noncompliance
Requires remedial measures
Allows for an Adjudicatory Hearing
Preliminary screening within DEP
Adjudicatory Hearing at the Division of Administrative Law Appeals (DALA)

20. Penalty Assessment Notice
Penalty Statute Requirements
Preconditions
Adjustment considerations

21. Preconditions for Issuing a Penalty
Prior Notice of Noncompliance (daily penalties allowed)
Pattern of noncompliance
Willful and not the result of error
Significant impact
Specific to 21E and 21C
The 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 compliance
consisted of failure to promptly report to the department
any unauthorized disposal of hazardous waste, as is defined by chapter twenty-one C; or
any 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 penalties
Class I – worst violation from DEP perspective – not to exceed $25,000
Operating without an air permit
Registered as SQG but acting as LQG
Hazardous waste storage times exceeded
Class II – Not to exceed $1000
Improper hazardous waste labeling
Lack of certain recordkeeping
Class III- No penalty less than $100
engaging 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 commonwealth
Good faith or lack thereof
Previous failure to comply
Deterrence
In 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 environment
Deterrence – 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 Adjustment
What 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 $20,000
Mandatory back compliance fees

25. NAVIGATING MASSDEP ENFORCEMENT
Company C
NAVIGATING MASSDEP ENFORCEMENT

26. Administrative Consent Order with Penalty (ACOP)
Recital of Violations
Requires Return to
Compliance
Penalty
Statutory
Adjustments
Enforcement
Policies

27. ACOP Negotiations Generally more flexibility in settling both
Penalty amount (same penalty adjustment considerations as with PAN); and
Actions to be taken and timelines, but must return to compliance
Usually 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/penalty
What have you done since
Demonstrate good faith
Even just hiring a consultant is a very good first step
What costs have been expended to come into compliance
Come with a plan for returning to compliance if not already completed 29

30. Penalty Mitigation Policies
Financial inability to Pay (not policy)
Environmental Audit - Self disclosure policy
Homeowner Policy
Small Business Policy
Supplemental Environmental Projects
Financial 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 Discovery
Voluntary Discovery
Prompt Disclosure
Prompt Remediation
Prevent Recurrences
No Previous Higher Level Enforcement
Enforcement includes action by Attorney General
At same facility
Not part of a pattern at the same facility

32. Self Disclosure Penalty Reduction
Violations discovered and disclosed through environmental audit
100% Mitigation
Violations discovered and disclosed by other means
75% Mitigation

33. Supplemental Environmental Projects
Allows payment toward an environmentally beneficial project rather than penalty
Buy HAZMAT equipment for Fire Dept.
Implement an EMS
Penalty 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 HW
Not NPDES Major
Not Branch office
Not Franchise

35. Small Business Policy Return to compliance No Actual Harm Not criminal
Maintain future compliance
Investigate pollution prevention
Then 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.