Dealing With Environmental Agencies

By Randall Hurst, Esq.

Farming often involves tilling soil and other activities that change the surface of the land, including the growing of row crops that do not fully stabilize soils. In addition, farm operations can involve the storage and use of liquid fuels and fertilizers, generation of odors, and disposal of brush or other voluminous material, sometimes by burning. All of these activities potentially involve state and federal environmental laws such as the Pennsylvania Clean Streams Law and Solid Waste Management Act.

The enforcement agency for state environmental laws is the Pennsylvania Department of Environmental Protection-—DEP. The powers of DEP inspectors are more far-reaching than you might suspect. They have the authority to enter any private land to determine if a violation is occurring and to take samples and measurements if they believe one is. Some landowners have made the mistake of trying to eject a DEP inspector from their land, only to find themselves in some trouble as a result, particularly if the inspector believes she has discovered a violation. DEP inspectors are human and will respond to the way they are received by landowners.

Probably the most common type of violation related to agriculture is one related to soil erosion and the deposition of silt in nearby streams. Such activity, even if it occurs in the normal course of farming, might be a violation depending on the circumstances. On the other hand, agricultural activities have some special protections in the regulations. DEP inspectors do a wide variety of tasks and are not always aware of these special rules. One example is agricultural stream crossings, which are exempt from certain permitting requirements but have sometimes been subject to DEP enforcement actions anyway.

Perhaps a more subtle risk is a little-understood principle involving Orders and Notices of Violation that DEP issues to landowners it believes are in violation of a regulation. DEP typically will issue a Notice of Violation (NOV) that describes what the inspector found, why it is a violation, and what they expect you to do about it. In more serious cases, usually involving repeat violations, DEP will issue a formal Order with similar information. If these documents contain errors, as they often do, or are difficult to understand, it can be tempting to simply ignore them. The "secret" rule, however, is that you have only 30 days to file a formal appeal (with a state agency called the Environmental Hearing Board) from an order or NOV. If you do not file an appeal, all of the information in that document, no matter whether it is correct or not, becomes legally established "fact" and you will not be allowed to challenge it in the future. Farmers have been surprised to receive a summons to appear before the state Commonwealth Court for failure to comply with an NOV or Order issued months before. When this happens the accused has literally no defense, since all of the statements in the document are legally considered true, accurate and correct. The only question at this point is the amount of the fines to be imposed by the Court-—one for the violation and another for failing to comply with the DEP Order.

Because the consequences of an incorrect response can be serious, any interaction with DEP, from an "inspection report," to simple letter, to a formal Order or NOV, should be reviewed by an attorney. And, because bureaucratic documents can be difficult to understand, it is wise to have the information reviewed by an attorney experienced in dealing with DEP and its complicated regulations and ever-shifting policies and procedures.

Mette, Evans & Woodside attorneys include lawyers with years of experience in environmental compliance matters. They can help you understand what has happened, what your legal rights and obligations are, and how to deal with a state agency that has a perspective that is not always friendly to the farming community and its needs.

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