Enforcement: the process of making people obey a law or rule, or making a particular situation happen or be accepted (Cambridge dictionary).
Key Takeaway: We highly recommend the retention of experienced and competent legal counsel and consultants early in any environmental enforcement process. This early expert involvement may result in a less proscriptive and costly response to the agency enforcement issues. n enforcement issues.
Formal agency enforcement of environmental regulations can occur from a routine inspection or a long engagement with a state or federal agency, such as USEPA or state equivalent, to resolve an environmental issue with a business or property owner (Owner). At some point in this process, the agency moves the file from informal (e.g., letters, meetings with the technical regulatory staff) to formal enforcement involving specific agency enforcement staff. Once the formal enforcement process has been initiated, the resolution process becomes much more proscribed, contentious, and costly. Retention of highly qualified advisors (i.e., attorney, environmental consultant) with experience in enforcement matters is crucial at this point to minimize the impact of the enforcement, address all enforcement and related issues, and provide realistic advice to the Owner.
“The biggest problem for our clients is delaying response to the agency and, especially, failure to involve an attorney and competent consultant until very late in the enforcement process.” – Michigan Environmental Attorney
How does Environmental Enforcement Commonly Start?
Enforcement actions can occur under a variety of environmental regulations and situations. A major incident (such as spill or release) or a failure to move forward on required actions, from the agency’s perspective, can be triggers to engage the formal enforcement process. The important takeaway is that once the enforcement process is engaged, there are pre-determined exit points which are rarely easily achieved and often quite costly.
Civil enforcement programs vary from state to state, and even within the same state each agency may be different in its approach to enforcement, with many having predetermined enforcement provisions depending upon the type of incident. In BLDI’s experience, the most common agency enforcement trigger is the lack of progress to resolve an outstanding issue with the regulator.
What does Enforcement Due to Long-Term Non-Compliance Look Like?
Most environmental programs have some form of self-implementation, meaning environmental compliance functions are integrated into overall facility operations. Failure to properly implement required compliance programs (particularly mandatory reporting) are, in BLDI’s experience, the most common non-compliance enforcement issues. Other common non-compliance issues include:
- Failure to submit state or federal statutorily required or compliant reports (e.g., underground storage tank release reports, investigation and cleanup reports, NPDES monthly reports, air emissions reports, SARA Title III reports)
- Failure to conduct testing required as part of a permit or operational mandate, including emissions or tank system testing (e.g., bulk aboveground storage tanks)
- Not meeting informal compliance tasks (e.g., updated SPCC plan, AST repair reports)
Once on the enforcement merry-go-round, there is seldom (if ever) a winning strategy that includes the “no action” alternative. Some form of compliance or investigative work, often significant, will be required to resolve any outstanding issues with the agency. Fines and penalties are highly likely, including potential future penalties for failure to meet stipulated deadlines specified in the enforcement agreement, commonly in the form of a Consent Order or Consent Decree (CO/CD). Additionally, the CO/CD will generally require tasks beyond the standard regulatory requirements, including CO/CD-specific monitoring and reporting obligations, and may include the requirement for a costly Supplemental Environmental Project (SEP). The completion of the enforcement agreement process, including payment of associated fines and penalties, is often “perceived” by the Owner as the endpoint of the process. Signing the CO/CD is not an endpoint; it is usually better described as the end of the beginning.
We often find that clients are surprised and frustrated that significant investment (e.g., investigations, time, money) is required to move forward after signing a CO/CD, even when counsel has explained the CO/CD process multiple times. Regular and specific reporting is often required under a CO/CD. The importance of timely completion of the specified CO/CD compliance reporting tasks cannot be overstated. Owners that do not move forward in full compliance with the CO/CD may get to experience additional agency enforcement, possibly including a second CO/CD, incurring further fines and penalties and even more stringent requirements.
Recommendations to Mitigate the Impact of Enforcement:
- Retain competent and experienced legal counsel early in the process
- Retain an environmental consultant experienced in enforcement cases
- Consider undertaking enforcement-related tasks prior to finalizing the enforcement agreement (e.g., CO/CD)
- Be transparent and forthcoming
In Part 2 we will discuss these recommendations in more detail, as well as things we recommend not to do. Please contact our Grand Rapids Office (616) 459-3737 with any questions.