During the course of my environmental practice, both at EPA and in private practice, I’ve seen too many regulated companies mishandle a violation notice, notice of violation, or finding of violation (terminology varying by agency and the division of an agency). Companies have failed to respond, have provided an incomplete response, or have provided inaccurate information. I have seen all of these permutations lead to administrative penalties (and associated legal and consulting costs) when no penalty was necessary.
Many regulated companies are under the mistaken impression that a violation letter is the end of the enforcement process. That is incorrect. In truth, EPA is still in the information gathering stage and has not made a decision whether to pursue an administrative penalty. In addition, the agency enforcement team has a significant amount of enforcement discretion in determining whether the violations observed during an inspection warrant formal enforcement (i.e., a penalty). Thus, the response to the violation notice is of crucial importance to the agency’s decision whether to pursue enforcement and should be treated as such.
Due to the significant legal and financial impact stemming from the response to a violation notice, this is the optimal time to engage an environmental attorney. As an environmental attorney, we are best suited to understand how given facts do or do not constitute violations and can word responses most appropriately. Furthermore, as a former EPA attorney, I have an excellent sense for how the agency decides to pursue formal enforcement and for which violations the agency decides to pursue a significant penalty. As a result, I can tailor a response to a violation notice such that it minimizes the risk of formal enforcement.
If you have any questions regarding EPA violation notices, contact us at 773-609-5320, firstname.lastname@example.org, or through our web contact form.
Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.