The Louisiana Department of Environmental Quality (DEQ) began a pilot program for Expedited Penalty Agreements in mid-2004 which is continuing until June 10, 2005, and may be renewed. This pilot program establishes fixed penalty amounts for common environmental violations of minor to moderate significance – for instance, failure to report RQ releases, late submittal of air and water reports, missed sampling events, sanitary sewer system problems, UST requirements, waste oil requirements and the like.
The specified penalties range from $100 to $1500 for a violation, and the maximum that can be addressed in the total agreement is $3000. For example, the failure to timely report a release over an RQ that does not cause an emergency is $300 per day the report is late; violation of an NPDES pH limit monitored by grab sample is $150 per occurrence, and filing a late quarterly or semiannual Title V deviation report is $500 per occurrence.
The process is initiated by DEQ sending a proposed Expedited Agreement which lists the specific violations, dates and penalty amount. If the facility agrees, it must execute the agreement within 30 days of receipt. Execution of the agreement requires the recipient waive its right to any hearing and certify that it will pay the fine and fix the violation within 30 days after signature to the agreement. This latter 30 day period can be extended once for another 30 days. The primary limitation on use of the expedited process is that it cannot be used if there was an identical violation in the last two years, because such requires a case-by-case evaluation of compliance history. Even though the rule says DEQ is to initiate the process, there is no reason why a facility could not ask DEQ to issue an expedited penalty agreement after the facility has self-reported a deviation. This may allow a cheaper and quicker resolution of the matter than waiting until DEQ issues a standard enforcement action months or years down the road. Also, because DEQ’s statutory authority requires it to be fair and consistent when assessing penalties, companies can analogize to the expedited penalty amounts when negotiating with DEQ on resolution of similar violations, even when the expedited process is not used. The DEQ’s most recent expedited penalty rule is published here.