We enjoy the trust of our clients for the most serious aspect of environmental law, civil and criminal enforcement.

For many of our plaintiff clients, who seek to enforce the law, we conduct the necessary factual investigations, legal research, expert recruiting, case evaluation, and resulting litigation to enforce environmental laws and legal obligations. These clients can be landowners, individuals, governments, or non-profit organizations or associations.

For many of our defendant clients, we handle all aspects of defense, from the first inkling of a problem to final resolution. For some of our most proactive clients, we design long-term enforcement or compliance strategies and handle problems as they occur in implementation, quickly and effectively. They call upon us often for help to stay out of trouble, or to get out if they get in.

As agency regulations have become more stringent and complex over the decades, the importance of our experienced advice is appreciated. It helps to have legal counsel working for you who know the statutes, the programs, and the agency personnel. It helps that we had a hand in drafting or reviewing some of the laws on the books, sat on some of the DEP advisory committees on the regulations, track the leading court decisions, and teach enforcement and defense in conferences and seminars.

As an Assistant Attorney General and Chief of the Attorney General’s Environmental Protection Division, from 1970 to 1975, Mr. McGregor was the Commonwealth’s chief enforcement attorney. It was here he first gained a reputation for professional success in court cases, some of them breaking new ground in the formative years of environmental law. Ever since then, the firm he founded has been comfortable with the thorniest enforcement matters.

Yet we are not here to litigate just to litigate. Our clients work with us on a concerted game plan, with short and long term goals, understandable strategy, and clear division of labor on the tactical actions. We understand the apprehensions about litigation and its costs and uncertainties. We work on mutually agreed budgets. We are pleased to win in court, and we are just as pleased if we can win by negotiation without the need for trial.

At one end of the spectrum, we are available right away to deal with environmental inspections, search warrants, undercover surveillance, and sting operations; at the other end of the spectrum, we are available as trial and appellate counsel in complicated multi-plaintiff and multi-defendant lawsuits with challenging scientific and technical issues with elements of individual responsibilities of corporate officers, plant managers, supervisors, employees, and consultants. We can draft or critique violation notices, demand letters, enforcement orders, abatement schedules, court complaints, discover documents, and settlement agreements.

For most state environmental laws in Massachusetts, the first steps in enforcement are taken by DEP regional offices. The agency conducts administrative inspections at routine intervals, as a result of citizen complaints, or to follow up reports files by regulated facilities. Each regional office has inspectors to determine environmental compliance. The enforcement tools at this state are telephone inquiries, letter correspondence, site visits, and informal meetings

The most common formal response to an observed violation is a letter from DEP, called a Notice of Non-Compliance (NON), notifying the violator that the DEP believes it to be in violator that the DEP believes it to be in violation of a specified statue or regulation, and requiring by a specific date the response describing how the violator intends to remedy the violation. Most violations are handled in this manner. The vast majority are corrected promptly, closing the agency file.

When a NON is not sufficient, DEP will issue an Administrative Enforcement Order, with the force of law, meaning it is legally binding. This may take the form of a Unilateral Administrative Order (UAO) or a proposed Consent Administrative Order, suggesting negotiation and meeting date. Regardless, the document requires the alleged violator to take specific actions by specified deadlines, and provides the opportunity for an adjudicatory hearing should the violator wish to contest either the fact of the violation or the actions required by DEP.

With or without an accompanying Administrative Enforcement Order, DEP may choose to impose administrative penalties. The operative document is a Penalty Assessment Notice (PAN). These are civil money fines in the nature of citations, without the need to involve the Attorney General or the courts at this stage. The amount of a PAN may be up to $25,000 per day for major violations. In contrast, minor violations carry a maximum penalty of $1,000 per day.

The alleged violator may appeal the PAN and ask for an adjudicatory hearing, claiming that no penalty is justified or that the penalty amount is excessive. As with any adjudicatory hearing challenging DEP action, a hearing officer appointed by the DEP Commissioner hears testimony and recommends a final decision by the Commissioner. Appeal thereafter is to the Superior Court. In order to pursue an appeal, the violator must place the amount of the contested penalty in an interest-bearing escrow account.

Civil litigation is conducted by the Office of the Attorney General (OAG) on behalf of DEP and other state agencies or on the AG’s own initiative and is appropriate to compel compliance with a procedural requirement or to permit condition or forbid certain activities.
Criminal prosecution is conducted by the AGO, Environmental Crimes Strike Force, or the District Attorney’s Office to punish violations, prevent serious threats to public health and safety, or compel action when civil litigation has failed to secure compliance.

Created in 1989, the Massachusetts Environmental Crimes Strike Force (ESF) is an interagency team comprised of prosecutors from the Attorney General’s Office, officers from the Massachusetts Environmental Police, and investigators, engineers and attorneys from the DEP. The ESF is managed by DEP as a coordinating body between environmental agencies to promote proactive oversight and criminal enforcement initiatives. The ESF gathers evidence during undercover investigations, carefully builds cases against alleged environmental violators, then takes them to court.

There are several ways that citizens may enforce the laws in their own right. Among them are the Citizen Suit provisions in federal environmental statutes. Others include the Massachusetts statutes that confer standing to commence civil litigation (10 citizens of the Commonwealth) or administrative intervention (10 persons). They are G.L. c.214, §7A (Ten Citizen Suit Statute) and G.L. c.30A, §10A (Ten Person Right to Intervene).

The landscape of environmental enforcement in the agencies and courts is well known to us.