How to Survive an Enforcement Action: What Virginia Businesses Need to Know about Responding to
Published on: 5/17/2006
It happens to the best of companies, often under the worst of circumstances, and notwithstanding everyone’s good intentions – you receive a Request for Corrective Action, or a Notice of Violation from the Virginia Department of Environmental Quality (DEQ). Unless companies are prepared to deal with regulators, notices from DEQ advising that state environmental regulations may been violated can elicit concern, confusion and even panic.
What does it mean? How much trouble is the company in? What will it cost? If nothing is done, what are the chances DEQ will just go away? While the answers to most of these questions is generally “it depends,” the answer to the last is most assuredly “No.” You need to take immediate and appropriate action. That action will depend on the type of notice received and the regulatory issue at hand.
Enforcement actions are primarily related to the permits that your company has received from DEQ. Citizen complaints may also be telephoned or emailed to DEQ eliciting an investigation into their validity. Your company should make sure compliance is not a source of exposure.
If there is a complaint, or DEQ otherwise finds a potential violation, your company will deal with the DEQ Regional Office in the area, while regional staff are knowledgeable, it may sometimes be necessary to deal directly with DEQ’s Central Office if it appears that compliance issues are not being properly addressed by your regional office.
Violations are classified based upon the seriousness of the alleged violations (i.e., duration, gravity, magnitude, willfulness) and their impact or threat of impact on human health and the environment.
Types of Enforcement Actions
Informal Correction -- the first and lowest level of enforcement action, may be requested in person by DEQ, or you may receive an Informal Correction Letter (ICL) or a Request for Corrective Action (RCA) form.
Warning Letter -- initiated after some preliminary investigation by DEQ, sent for alleged violations, and will include the express statement that they are not “case decisions”, so may not be appealable.
Letter of Agreement or Consent Order -- Compliance Inspection (CI) is conducted to determine or verify the cause of the reported alleged violation(s), to ascertain if there are other potential violations, and to provide compliance assistance to the facility and could result in additional Warning Letters.
Notice of Violation (NOV) -- suggests a possible violation of the law or regulations, and includes an invitation to respond, will typically advise that an informal hearing has been scheduled so that DEQ can determine whether the company is in violation. Informal hearings can lead to formal hearings, and potentially further litigation.
In crisis situations, Emergency Orders may be issued by DEQ in the event special circumstances exist that require immediate action to abate imminent and substantial injury or damage.
What You Can Do To Help Your Company
If your company’s activities fall under a general permit or individual permit, make sure you are in compliance with all regulations and any conditions that have been imposed. If possible, be a part of the regulatory process. Be alert to the environmental issues in your industry.
DEQ’s policy is not to use a hammer when a carrot will do. If you can resolve the issue early on and not be inflexible, your company will save time and headaches later on. Friendly relationships with DEQ are in your company’s interests.
Take the meeting with DEQ if offered, and request one if you disagree with an action or a position that DEQ has taken. Don’t be afraid to contact the Central Office if you believe that you are in compliance, or staff is incorrectly interpreting a permit requirement or regulation. Document all contacts in writing. If given deadlines for compliance, take them seriously. If the deadline has not been met, follow-up action may be initiated at the next highest enforcement level.
Communicate with DEQ often. A compliance date may be extended by DEQ if there are circumstances beyond the facility’s control and the facility has notified the Department as soon as those circumstances became apparent.
Enforcement actions can be resolved through a number of different mechanisms. Sometimes, a problem can be corrected immediately. Others may take time to resolve. In the latter case, a Letter of Agreement (LOA) may be prepared, which is a non-binding agreement between the facility and the Regional Office to correct suspected violations.
Consent Orders (CO) are administrative orders issued, with the consent of the owner or other responsible party, to perform specific actions to come into compliance with the relevant law and regulations. COs may include a determination that a violation has occurred. If your company agrees, DEQ can impose civil charges in a CO.
You can often use how other businesses have been treated in similar circumstances to negotiate or object if dissimilar treatment is given by the agency. In addition, civil charges are assessed pursuant to DEQ guidelines which are available at www.deq.state.va.us.
If the parties cannot reach a settlement, informal and/or formal hearings may take place. Companies should be prepared to argue and defend their position in either setting. The presence of legal counsel is strongly suggested. Once a case decision has been made, this decision can be appealed to the Circuit Court, provided a Notice of Appeal is filed within 30 days. Significant time and money may be required to challenge a DEQ action in the circuit courts.
Enforcement actions are generally concluded though voluntary compliance or by court order. A case may be also be “deferred,” meaning that an enforcement action is being terminated for one reason or another without being brought to full closure. However it is resolved, with proper knowledge of DEQ’s authority and careful responses by your company, you will survive the DEQ’s enforcement action.
A shortened version of this article first appeared in the June 2006 Virginia Business magazine.