PODCASTEnvironmentally Speaking EP 2: Rhode Island “DEM”

August 2, 20210

Transcript: Rhode Island “DEM” Full

Marisa: Hi. Welcome to Environmentally Speaking. This is attorney Marisa Desautel. I’m your host. I’ve got a couple of decades of experience in environmental law. And with me today is –Clarice: Hi, everybody. I’m Clarice, a paralegal here, to bring your topics and questions to the table to talk about. So, Marisa, let’s kick off today with we recently had a new client come in and unfortunately for them they received a notice from DEM and they’re looking to us to help sort this out. And what do they do?

Marisa: Well, let me just start by saying I love that you immediately used the acronym DEM. So to start we should probably explain what that is. No. It’s good. It’s good. You’re in the industry. So DEM is short for Department of Environmental Management. It’s the agency in Rhode Island that’s responsible for promulgating environmental regulations, overseeing the permitting process in the state, and handling enforcement actions among other topics and tasks.

But that third category that I just mentioned, the enforcement actions, is what you are referencing. The enforcement component of what DEM does has to do with that agency’s statutory jurisdiction and authority in terms of environmental laws in the state. If you receive something called a notice of violation from the Department of Environmental Management, it means that they have reason to believe that you have violated an environmental state law.

Clarice: So in our client’s shoes, they get this letter. It says that they’ve violated some law. After they’ve called us what’s the first step? How do we handle this?

Marisa: Well, sometimes it’s panic is the first step. If someone’s not familiar with the process it’s very intimidating.

Clarice: I think oftentimes the first step is panic.

Marisa: Panic, yes. It’s meant to be intimidating, right. Your get a formal registered letter. It’s on state letterhead. It contains jargon and state law references and some font is in both, so it’s meant to be intimidating.

Clarice: Yes. Notice of violation right across the top.

[0:02:31] Marisa: Notice of violation in black, yeah. So the most important step that I tell clients when they receive a notice of violation is to pay attention to any appeal rights that are contained in that notice. By state law the Department of Environmental Management has to tell you about any appeal rights that are included as part of the statutory violation that they’re alleging because parties are entitled to due process. Just because the state sends you a notice doesn’t mean that you are guilty, right. It’s America. You’re innocent until proven guilty. So after the panic step, then comes the appeal step. That’s the most important first step because you don’t want to miss an appeal deadline. Depending on what type of notice you receive, the appeal deadline is always statutory, but sometimes you’ve got 20 days. Sometimes you’ve got 30 days to actually file your written appeal with DEM.

Clarice: So just because our client got this letter doesn’t mean that they have to pay the fine or [inaudible]. They do have a chance to kind of work it out in a way or to present an alternative argument?

Marisa: Yes. Yes. You always have an opportunity in my experience to try to work something out with DEM. They can be very reasonable. And if you’re willing to put the work in and invest the resources to undertake, let’s say, environmental restoration, for example, it’s always a good idea to try to pursue some type of settlement, again, in my opinion and experience. But you touched on something important there where you referenced paying a penalty. Usually these notices of violation from DEM carry a penalty with them.

And the notice of violation will contain something called the penalty matrix. It explains how the department arrived at the penalty amount that they’re including in your notice of violation. That penalty matrix comes from DEM regulation and state law. There’s generally some wiggle room in there, though, unless the agency has kept your penalty amount at the low end of the entire range. But even still, again, I always recommend that a party try to pursue settlement first as a first step before deciding whether to pursue an appeal and defending against the allegations.

[0:05:17] Clarice: So backing up just a little bit. Is the notice of violation the first kind of communication that a client will get from DEM, or is there a warning letter that happens before that, or how does this progress?

Marisa: Yes. That’s a great question. Most times the department will try to get in touch with a party to let them know that there is an issue. Sometimes that’s done very informally depending on the nature of the violation. Sometimes it’s done in a more formal capacity where the department will issue something called a notice of alleged violation, or the acronym for that is an NOAV. And that basically is the department saying to you, hey look, we have reason to believe that you’ve undertaken some type of illegal activity. Here’s your opportunity to correct it before we issue an NOV and issue you a penalty. Now, depending on how the party deals with the NOAV will dictate what the next step in the process is. If you ignore DEM they’re not going away. They’re government. They’re always going to outlast you. So my advice would be if you receive one of these notices of alleged violation call the department and try to work it out before a penalty is assessed against you.

Clarice: It kind of feels like when a parent says don’t make me count.

Marisa: Yes. Yes.

Clarice: That’s like the first [inaudible].

Marisa: Yes.

Clarice: It’s like, don’t make me count.

Marisa: Yes.

Clarice: This is an alleged violation.

Marisa: You’ve got an opportunity. Don’t take it.

Clarice: Unfortunately they turn up the heat with the notice of violation and that’s when mom has counted to three.

Marisa: That’s right. Very good example. Yeah.

Clarice: So in our client’s case he’s got this letter. We’ve begun discussions with DEM. On average how long does a settlement process take? You know, does it depend on the complexity of the violation or how quickly we respond to the first notice?

Marisa: It definitely depending on the complexity of the violation. Sometimes you receive these notices of violation and you – when I say you I mean the party that’s receiving it. You’ve been cited with multiple violations of different state laws and regulations. Those cases take forever because let’s say, for example, there’s a wetlands violation. You have to go in and work with the department, hire your own consultant to undertake wetlands restoration and that could take a couple of seasons. Plus you have to make sure that whatever restorative work you’ve done actually takes, for example, planting.

You might install buffer plant mix, or you might plant trees and they don’t survive, so that type of restoration can take a few years. If it’s a water quality violation and the department is alleging that you’re discharging some type of pollutant into a water of the state illegally without a permit, then you have to prevent the discharge. Those generally can occur a little faster. If it’s a site remediation case where the department is alleging that there is a release of a pollutant, those cases take years and years and years because the remedial activity goes on for a long time where you’re monitoring groundwater, you’re digging up soil, you’re putting engineered controls in place to make sure that the release doesn’t migrate offsite. So it fully depends on the type of violation that you receive.

[0:09:05] Clarice: So the deadline in the violation letter is more a deadline to respond and not a deadline to have a solution?

Marisa: The notice of violation carries with it a deadline for appeal and that’s the really important deadline that’s in there because if you miss that window to appeal then you lose your opportunity to appeal. And then they take you over to superior court to enforce the notice of violation. And there’s no opportunity to argue the merits of your case. That opportunity is foreclosed once you miss the appeal deadline. So that’s the most important deadline in the notice of violation. The notice of violation also does generally carry with it a deadline for restoration, but if you appeal the notice of violation then obviously that deadline is stayed until the outcome of the administrative appeal is determined.

Clarice: All right. So good news is our client reached out to us early enough and they don’t have to worry about missing any of those deadlines.

Marisa: That’s right because we filed a timely appeal and hopefully we can work something out with DEM.

Clarice: Nice. All right. Is there anything else we should know about notice of violations?

Marisa: No. Really just that appeal window, you don’t want to miss it, bottom line.

Clarice: [inaudible].

Marisa: Crucial, yeah.

Clarice: All righty. Well, I think we’re in a good spot for this guy, so we’ll be watching out for the next steps in our deal. And if anybody has any questions or wants to reach out to Desautel Browning Law, you can reef us at Help@DesautelESQ.com. Thank you, everybody.

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