What Should Manufacturers Do When Receiving A Notice Of

Violation From EPA?

David Scriven-YoungPeckar & Abramson, P.C.

Illinois Environmental Law Blog(312) 239-9722

dscriven-young@pecklaw.com

Outline of Presentation

(1) EPA Enforcement Process

(2) Notice of Violation

(3) Strategy for Responding to a Notice of Violation

(4) Questions and Answers

(1) EPA Enforcement Process

• Notice of Violation: Indicates that EPA believes that the company is in violation of the law and that it should come into compliance or be prepared to defend its actions in subsequent enforcement.

• Filing of Action: If negotiations fail, EPA files a civil administrative action, civil judicial action, or criminal action.

BEWARE Concurrent State Enforcement

(2) Notice of Violation

• Facts (what the inspector found)

• Legal standard and how you violated that standard

• Process for next steps: Set up conference with EPA to discuss alleged violation

(3) Strategy for Responding to a Notice of Violation

(A) Gather information to determine the cause of the violation.

• Gather information internally and discuss with key players involved in the process that was involved in the violation.

• Gather information from EPA (request copies of inspection report and any other documents relating to the incident).

(3) Strategy for Responding to a Notice of Violation

(B) Determine if the problem is fixed and how to avoid the problem in the future.

• If the problem has not been fixed, then determine the timeline for fixing the problem.

(3) Strategy for Responding to a Notice of Violation

(C) How big will the potential penalty will be?

• Starting point is the statute. Usually a maximum penalty plus factors to determine the amount of penalty.

• Look at the penalty policy and figure out potential penalty. Calculation includes economic benefit, gravity, adjustments, litigation risk, and ability to pay.

(3) Strategy for Responding to a Notice of Violation

(D) Set up meeting date and prepare letter:

• Your side of the story (what happened)

• What steps you took to prevent this specific problem from occurring.

• What efforts you took to fix the problem after it happened. If not fixed, provide a timeline.

• What efforts you will take to ensure that this problem will not occur in the future.

(3) Strategy for Responding to a Notice of Violation

(E) PREPARE for Meeting with EPA

• EPA will give you the opportunity to make presentation.

• Plant manager and senior team involved with the process should plan to be there.

• Bring any documents relevant to defense or shows that plan was in place to prevent problem from occurring.

(3) Strategy for Responding to a Notice of Violation

• Discuss in advance who will make initial presentation, which will tell your story on how the problem occurred, what you did to prevent the problem, how the problem was fixed or the timeline for fix, how the problem will be prevented going forward.

• Unless you intend to argue that the Company did nothing wrong, be prepared to discuss settlement.

(3) Strategy for Responding to a Notice of Violation

(E) Meeting with EPA

• Initial presentation

• Questions and Answers• Settlement Negotiations (Elements might

include: penalty, new compliance or monitoring program, and/or Supplemental Environmental Project)

Questions & Answers