- Have a procedure in place for responding to NOVs, enforcement orders, and other related issuances.
- Give a copy of an NOV or order to the person responsible for responding. If the alleged violation is significant, make sure to alert the proper management official.
- Immediately determine the validity of the NOV or order. Mark all documents generated during an enforcement investigation with a confidentiality statement to ensure attorney-client privilege.
- Contact the agency issuing the NOV or order to acknowledge receipt, and assure agency representatives that your organization will respond promptly.
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- Involve in-house counsel—or outside counsel, if necessary—to determine strategy for any challenge to the notice or order.
- Recognize that receipt of an enforcement order or NOV may start the clock running for continuous violations. Evaluate whether the sanctions are only fines or penalties or if they could shut down operations. Determine if a variance should be sought to allow operations to continue.
- Prepare a written response that documents corrections, answers allegations, and challenges investigation findings, if applicable.
- Treat administrative appeals as significant environmental litigation. Designate a single person in management to be responsible for the matter, and devote adequate resources and staff to play an active role in defense.
- File any administrative or court appeals by applicable deadlines. State grounds for any appeal clearly and succinctly, with citations to supporting legal authority and technical documentation.
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- While appeals are pending, alter operations to comply with applicable regulations and fully document compliance.
- Collect and organize all relevant records and documents necessary for defense. Do not destroy or discard any relevant documents during appeal periods.
- Identify anyone who may have information relevant to the matter, and ensure their willingness and availability to cooperate fully with counsel.
- Secure approval of defense strategy from the appropriate level of management.
- Remember to treat each NOV or enforcement order as a serious allegation or requirement with legal implications.
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