Clients frequently receive a “Notice of Violation” from a regulatory agency and/or sometimes from private law firms alleging violation of the Clean Water Act (“CWA”). With the most recent changes in the CWA regulations, various facilities and operations that were previously in compliance with the CWA and had appropriate storm water plans in place may not find themselves no longer in compliance with the regulations. Accordingly, it is important for various facilities to take steps to make sure that they are in compliance with the newest regulations. Additionally, when receiving a “Notice of Violation” the client needs to promptly take action and respond. Ignoring the “Notice of Violation” is unlikely going to lead to a good result and most likely lead to a lawsuit and potential increase in liability. The key component in the response to receiving the “Notice of Violation” is to understand and careful examine whether an actual “violation” has occurred. As we’ve found with multiple clients that have received such notices, in many instances many of the alleged “violations” are not in fact a “violation” and thus no penalty should be assessed. In some instances, we have been successful in having claims of violations in excess of several hundred thousand dollars to be dropped entirely and/or reduced to an amount that is more reasonable for the client. As a result, a successful defense of such claims is predicated on a thorough understanding of the evidence and actual facts.
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