Receiving a communication from the Department of Environmental Protection (“DEP”) stating that you or your business has violated various environmental requirements can be quite unsettling. Ignoring these communications, known as Notices of Violation (“NOVs”), however, will not make them go away. In fact, failure to review and appropriately respond to NOVs can have serious consequences.
NOVs are letters from DEP informing an individual or business that they have violated environmental requirements set forth in statutes, regulations, or permits. They constitute the first step in DEP’s formal enforcement process. If the recipient appropriately addresses the NOV, it will hopefully be the last step in the enforcement process. A NOV will typically describe the activities at issue and set forth how these activities violate specific environmental requirements. Most importantly, the DEP will set forth what actions it would like the NOV recipient to take and a date by which a response should be sent to DEP. Failure to take the requested actions will typically lead DEP to take additional enforcement actions, including issuing a compliance order and/or assessing civil penalties.
Unlike formal DEP orders, NOVs usually cannot be appealed to the Environmental Hearing Board. That does not mean, however, that NOVs cannot be contested, at least informally. For example, on occasion, DEP incorrectly issues NOVs to parties not responsible for compliance, such as a contractor working for a permittee at a site. DEP has also been known to cite nonexistent violations in NOVs. For example, DEP could cite a violation for failure to take and submit a required sample, when in fact that has been done. A party that receives such erroneous NOVs should immediately contact DEP, explain the discrepancies, and request that DEP withdraw the NOV. These steps could be consequential since DEP considers an NOV to be part of an entity’s compliance history that must be reported in future permit applications.
Most NOVs, however, reference actual violations. In these instances, an NOV recipient should respond to DEP within the timeframe requested by DEP with a plan for correcting the violations and outlining steps that will be taken to ensure the violations do not reoccur. Such prompt action should minimize the chances that DEP will take additional enforcement actions. NOV recipients should also consider consulting with their environmental professionals and/or attorneys to assist in crafting an appropriate response to DEP.
If you have any questions regarding Notices of Violation from DEP or other environmental matters relating to your business, please contact Martin R. Siegel or any attorney in the Barley Snyder Environment & Energy Industry Group.
