How (NOT) to Work With the EPA and Your State Environmental Agency

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Nathan B. Hinch.  Nate (@nathanhinch) is an associate attorney at Mueller & Reece, LLC in Bloomington, Illinois, where he advises real estate, construction, environmental, and other businesses regarding the law, and represents them in conflict mitigation and resolution efforts, including arbitration, litigation, and administrative proceedings.  Previously, Mr. Hinch worked in the area of operations management and environmental permitting and compliance with a multi-State civil and environmental engineering firm.  He has worked with the permitting, compliance, and enforcement staffs at the U.S. EPA and environmental agencies for eleven (11) States, as well as the Chicago Metropolitan Agency for Planning (CMAP) and various other local governments.  He can be reached at nhinch@muellerreece.com .

Let’s pretend for a moment that YOU are the lawyer in two scenarios involving clients who have received Notice of Violation (NOV) letters from the U.S. Environmental Protection Agency (EPA) or State environmental agency:

Client A, Mr. Casual, walks into your office, casually hands you the NOV letter and tells you, “I received this letter from the EPA a month ago.  It says I needed to respond by last week, but I don’t think it’s a big deal.  I’ve already fixed the problem on my own.  They’re probably too busy to worry about me anyway; I mean they must send out thousands of these letters, are they really going to try to enforce this?”

Client B, Ms. Outraged, storms into your office and, while pacing back and forth and waving the letter around, tells you “I got this letter from the EPA this morning saying I’ve violated the law and could be fined all kinds of money and thrown in jail!  This is an outrage!  I’m going to call over there and give them a piece of my mind!  How dare they threaten me with this!  I’m going to call my Congresswoman Jones and Senator Smith and demand that they do something about this. I want you to fight this all the way to the Supreme Court!”

How would you counsel Mr. Casual?  Ms. Outraged?  These examples might sound facetious, but they are intended to show somewhat extreme examples of two client types lawyers encounter all the time.  In business and even in the civil litigation context, these clients may well be able to use these tactics to their advantage.  When it comes to dealing with the EPA though, both approaches are likely to harm the client’s case and make your job as their attorney more difficult, ultimately costing the client money.

If you get a NOV letter or other correspondence from the EPA (or your State agency):

TAKE IT SERIOUSLY….

Don’t just blow it off.  Generally speaking, U.S. environmental laws are typically written to 1) require self-reporting of violations/verification of compliance, 2) give deference to the EPA as the technical expert (you are essentially required to prove EPA wrong, not the other way around), 3) provide stiff penalties for violations, including fines on a $/day/violation basis and possible imprisonment.  Delaying compliance WILL cost you money and, if you have a legitimate defense, delay may cause you to waive your right to make your case.

…BUT NOT TOO SERIOUSLY!

Don’t overreact by losing your temper or trying to go around or over the EPA.  You losing your temper will not bully the EPA into submission; they are too big and bureaucratic.  If you chew out Joey, the 21 year old, level 1 permit compliance inspector, do you really think that is going to help your case?  As for complaining to an elected official, there is a time and place for seeking that kind of help to resolve a dispute, but view that as the “Haley’s Comet” scenario – it comes around once every 75 years.  Try every other possible resolution with the agency staff involved first, twice, and beware that when you ask for scrutiny of your case, you might be the one who ends up being scrutinized.

WHAT TO DO?

Do treat EPA employees with respect.  Be friendly and humble.  Make every effort to comply with the regulations and your permit; if you have a disagreement with the EPA, continue to treat EPA employees with respect throughout the resolution process.  Remember that agency employees are both “just doing their job” and also (usually) truly do care about the work they do and protecting the environment.  Strive to, by establishing a good track record for compliance and by professional respect, maintain good relationships with EPA employees.  Understand that a violation is a violation and do not expect or ask for special treatment; they can’t do that.  But agency employees do often have discretion to interpret shades of gray and to take into account your track record when determining the appropriate enforcement actions to take and what fines or penalties should be assessed for violations.

EPA/State agency regulatory oversight of the construction industry is increasing.  Recent regulatory changes affecting construction professionals include management of stormwater runoff, disposal of construction demolition debris and fill, and lead paint remediation in home remodeling projects.  Energy efficiency and “green building” are coming into higher demand, and new regulatory structures to establish standards and monitor compliance are still being developed.  As demand increases, the potential for problems and complaints also increases, and the construction professional can expect government oversight to increase as well.  If you haven’t had occasion to work with the EPA or your State environmental agency yet, you probably will get acquainted in the not too distant future.  Be ready, and don’t be Mr. Casual or Ms. Outraged.

Nate and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.