EPA Notice of Violation (NOV) Response - Federal Lawyer
WSJ logo
Forbes logo
Fox News logo
CNN logo
Bloomberg logo
Los Angeles Times logo
Washington Post logo
The Epoch Times logo
Telemundo logo
New York Times
NY Post logo
NBC logo
Daily Beast logo
USA Today logo
Miami Herald logo
CNBC logo
Dallas News logo

EPA Notice of Violation (NOV) Response

Our Former Federal Prosecutors and EPA Agents Help Companies Respond Effectively to Notices of Violations (NOVs)

Carlton S. Patton
Carlton S. Patton
EPA Notice of Violation Response Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Notice of Violation Response Team Lead
envelope icon Contact Nick

The U.S. Environmental Protection Agency (EPA) has several formal enforcement tools at its disposal regarding environmental laws. One of these tools is the Notice of Violation (NOV). The EPA uses NOVs to inform companies of suspected environmental violations and their implications, and responding effectively to an NOV is often a company’s last opportunity to avoid prosecution for environmental crimes.

With this in mind, if your company has received a Notice of Violation from the EPA, an informed and strategic response is required. Even though an NOV is not itself legally binding or representative of an EPA enforcement proceeding, ignoring an NOV is highly likely to lead to further action by both the EPA and the U.S. Department of Justice (DOJ). As the EPA’s Office of Enforcement and Compliance Assurance recently explained in a policy memorandum:

“There are many tools available to EPA enforcement and compliance assurance programs. Some tools are used to notify regulated entities regarding potential violations (e.g., Warning Letter, Notice of Non-Compliance). Others are used to advise regulated entities of an impending enforcement action and invite settlement (e.g., Notice of Violation, Show Cause Letter, Pre-Filing Notice Letter, and Notice of Intent to File an Administrative Complaint). Others are the actual enforcement action (e.g., Administrative Penalty Order, Administrative Compliance Order).”

As this explanation makes clear, issuing a Notice of Violation falls in the middle of the EPA’s enforcement procedures. Typically, an NOV signals that the EPA has already determined enforcement action is warranted, and it provides a final opportunity for the responsible party to work out a mutually agreeable resolution with the EPA that avoids a referral to the DOJ. At Oberheiden P.C., we have extensive experience representing companies in negotiations with the EPA and other agencies, and our former federal prosecutors and EPA agents can help you make informed decisions about how to proceed.

EPA Notice of Violation: An Overview

While companies will be aware of the possibility of receiving a Notice of Violation in many cases, receiving an NOV can also come as a surprise. The EPA does not have to follow any formal rules or procedures when issuing NOVs, and it can (and often does) use NOVs strategically during its investigations and enforcement proceedings.

Usually, however, NOVs will follow a similar format and contain similar key pieces of information. For example, in most cases, the EPA will divide NOVs into three main sections:

1. Law Governing Alleged Violations

After a brief introduction and summary, an EPA Notice of Violation will typically contain a section labeled “Law Governing Alleged Violations.” Here, the EPA’s Office of Enforcement and Compliance Assurance will outline the specific statutes and regulations that the recipient is alleged to have violated. In many cases, the EPA’s Office of Enforcement and Compliance Assurance will also summarize the relevant statutory and regulatory provisions and the legislative findings behind them—providing additional insight into the specific concerns that triggered the Notice of Violation’s issuance.

This is important, because as noted above, the EPA’s goal when issuing a Notice of Violation is typically to induce settlement negotiations. During negotiations with the EPA, understanding the agency’s concerns and enforcement priorities can provide critical insight into the opportunities that are available for negotiating favorable terms in light of the circumstances at hand. With a clear understanding of the specific statutory and regulatory allegations at issue, targeted companies can also conduct their own independent compliance assessments (with the oversight of their EPA counsel) to determine whether any of the EPA’s allegations are unwarranted.

2. Alleged Violations

After outlining the relevant environmental statutes and regulations, an EPA Notice of Violation will then typically discuss the specific violations that the recipient is alleged to have committed. This section of the NOV is critical—even more so than the Law Governing Alleged Violations—as it provides direct insight into the focus of the EPA’s investigation and what it hopes to achieve by pursuing enforcement.

Here, the NOV focuses on applying the law to the facts at hand. This also provides insight into the scope of the EPA’s investigative efforts to date—which sheds additional light on the seriousness of the matter at hand. In addition to working with their EPA counsel to identify and assess the implications of all relevant statutes and regulations, companies that receive NOVs should also work closely with their EPA counsel to assess the validity of the EPA’s factual assertions. If the EPA’s understanding of the relevant facts is misguided, this alone could set the stage for productive and favorable negotiations.

3. Enforcement

Most NOVs close with a section titled, Enforcement, that states the EPA’s intent to continue pursuing its investigation and its authority to share its findings with the DOJ. Here, the EPA may also list the penalties that would be on the table in the event of criminal prosecution. The Enforcement section of an NOV also typically includes an express invitation for the recipient to confer with EPA and provides the relevant individual’s contact information.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

How We Can Help with Your Company’s EPA Notice of Violation

Due to the risks that the issuance of an EPA Notice of Violation presents, companies that receive NOVs must work closely with experienced EPA counsel to formulate and execute a strategic response. When we represent companies in connection with NOVs, our approach typically involves:

  • Critically assessing the EPA’s interpretation of the relevant laws and regulations;
  • Critically assessing the EPA’s determination of the relevant facts and circumstances;
  • Evaluating potential defenses and formulating a strategy for disputing the EPA’s allegations and/or targeting a favorable settlement;
  • Communicating with the appropriate EPA personnel on our client’s behalf, including entering into settlement negotiations as warranted; and, 
  • Targeting a positive outcome that avoids unnecessary consequences.

With all of that said, a custom-tailored approach is critical. At Oberheiden P.C., we focus on the specific circumstances of each individual EPA investigation in order to determine how we advise our clients. If your company has received an NOV, our lawyers and EPA consultants will help you make informed decisions about your next steps, and we will work to secure a favorable result for your company in light of the specific circumstances at hand. Critically, we will also focus on maintaining (or developing) a good working relationship between your company and the FDA—as this can be essential for mitigating your company’s risk of facing additional EPA scrutiny and enforcement activity in the future.

FAQs: Responding to an EPA Notice of Violation (NOV)

What is the Difference Between an EPA Notice of Violation (NOV) and an EPA Notice of Non-Compliance?

The EPA issues a variety of different types of notices for different enforcement-related purposes. A Notice of Non-Compliance signals that the EPA has identified potential violations that a company may need to remedy and achieve compliance in order to avoid further inquiry. These violations are usually (though not always) civil in nature. In contrast, a Notice of Violation (NOV) indicates that the EPA has identified one or more specific criminal violations, and it offers a final opportunity to negotiate with the EPA before it engages the DOJ to seek an indictment.

What is the Difference Between an EPA Notice of Violation (NOV) and an EPA Show Cause Order?

An EPA Show Cause Order is a request for the recipient to demonstrate its compliance or remediation efforts—or to “show cause” why civil or criminal enforcement action is unwarranted. In contrast, an EPA Notice of Violation (NOV) indicates that the EPA is prepared to work with the DOJ to pursue criminal charges unless the recipient negotiates a mutually agreeable resolution.

Do I Need to Respond to a Notice of Violation (NOV) from the EPA?

Yes, if your company has received a Notice of Violation (NOV) from the EPA, you need to respond, as failure to do so will typically result in a referral to the DOJ. However, how your company should respond depends on the specific facts and circumstances at hand. While negotiating a settlement with the EPA may be warranted, in some cases companies can (and should) dispute the allegations contained in their NOVs.

How Should I Respond to a Notice of Violation (NOV) from the EPA?

Determining how to respond to a Notice of Violation (NOV) from the EPA starts with assessing the validity of the EPA’s allegations. Once a company (through its EPA counsel) has thoroughly assessed the EPA’s allegations, then its leadership team can make an informed decision about how to proceed.

What are Some Options for Settling with the EPA in Response to a Notice of Violation (NOV)?

The options that are available for settling with the EPA in response to a Notice of Violation (NOV) depend on the circumstances underlying the NOV’s issuance. These options range from developing a corrective action plan and undertaking remediation efforts to paying fines and agreeing not to engage in certain violative activities.


Discuss Your Company’s EPA Notice of Violation with a Lawyer at Oberheiden P.C.

If your company has received a Notice of Violation (NOV) from the EPA, our lawyers can help you develop and execute a strategic response. To get started with a complimentary initial consultation, please call 888-680-1745 or tell us how we can contact you online today.

WordPress Lightbox