Enforcement Actions By Environmental Agencies
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Federal and state environmental agencies have a broad range of enforcement options in their administrative/judicial toolbox. They may use preliminary actions like a notice of violation or an offer of an agreed order to get a desired end result (a cleanup, a penalty, a change in compliance or workplace procedures), or issue a unilateral order or penalty assessment. They may file an administrative or judicial complaint. On occasion criminal actions may be the chosen means of enforcement. The results of the selected action may be dramatically different, and the reasoning behind the selected actions may be obscure. Agency enforcement actions may be formulaic for minor infractions, or may be the culmination of longstanding and acrimonious disagreement between the government and your client on important issues. Understanding the factual background of the action, and the prior interactions of the government and representatives of the client, is essential to framing the right responses and defense actions. In many cases the government is not expecting to litigate for its desired outcome, and a proper case analysis must consider the pros and cons of settlement and litigation, and the best tactics for each option.
This on-demand webinar helps the persons responsible for managing the response to government enforcement actions to understand how to establish tracking, reporting and response systems for enforcement actions, and how to assign the proper level of significance to a specific action and apply the right resources to the response. It also discusses the procedures which outside counsel should follow in designing and presenting a comprehensive and cost-effective defense to an enforcement action that addresses the business interests and long-term needs of the client. Recognizing the need for a proper balance of defense and cooperation to ensure a positive long-term relationship between the government and the client is key; always conceding to the government position may be as bad for business as always opposing government involvement in environmental operations. This on-demand webinar helps you to understand the enforcement process and guide your business or client to achieve its business goals and establish a reputation for reasonable cooperation and compliance.
- You will be able to discuss how to identify the correct initial response options and required business/client decisions.
- You will be able to review agreements to phase discovery and pre-trial events to allow settlement talks.
- You will be able to identify intervention issues - neighbors, NGOs, competitors and allies.
- You will be able to discuss administrative appeals and judicial appeals.
AuthorsRobert L. Collings, Schnader Harrison Segal & Lewis
Assessing the Significance of an Enforcement Action and Response Options
• What Type of Action Has Been Taken, What Is Its Legal Effect and What Does the Agency Want?
• What Are the Client's Substantive and Procedural Rights and Obligations?
• How Does the Enforcement Process Preserve the Client's Rights? Affect Business Operations?
How to Identify the Correct Initial Response Options and Required Business/Client Decisions
• Reviewing the Regulatory and Facility Personnel Interactions, Inspections and Records
• Identifying the Relevant Documents Governing the Action - Permits, Orders, Agreements, Policies
• Consider Any Larger Issues (Constitutional, Continuing Violations or Unaddressed Violations) That Would Surface in an Adversary Proceeding
Settlement or Litigation - or Both - Procedures for Structuring the Settlement and the Defense
• Agreements to Phase Discovery and Pretrial Events to Allow Settlement Talks; Timing Depositions
• Effect of Litigation on Business Operations; Corrective Actions and Their Use as Evidence
• Retaining Experts? Pros and Cons of Client Experts vs. Outside Experts; Experts and the Facts
Case Management in Administrative Cases/ Explaining the Process to the Client
• Conferences and Judges - Understanding the Process, Options and the Judge's Preferred Practices
• Intervention Issues - Neighbors, NGOs, Competitors and Allies
• Discovery Issues in Administrative Practice- Prediscovery by FOIA Request, E-Discovery Pros and Cons
• Pretrial Dispositive Options and Settlement- Seeking Advantageous Settlements/When Not to Settle
Hearings and Appeals - Understanding the Decision-Making Process
• How Final Is the Hearing Decision? Internal Review and Decision-Making; Reconsideration Options
• Administrative Appeals and Judicial Appeals After-the-Fact Settlement
• Advantages of the Government in Post-Hearing Appeals and Legal Actions; Minimizing The Advantages