On July 15, 2013, the Governor signed a new law that expands the enforcement options available to the Rhode Island Department of Environmental Management (“RIDEM”) to include an expedited citation process. In lieu of issuing formal Notices of Violation (“NOV”) to alleged violators, which are subject to a formal appeal and review process before a Hearing Officer at the Administrative Adjudication Division (“AAD”), RIDEM is now empowered to issue more informal “expedited citations” for minor infractions where the fine does not exceed $2,500.
An expedited citation must contain a “concise statement” of the alleged violations. It is valid and effective for a 60-day period after it expires. During the 60-day period, the following options are available: (1) the parties may settle the violation; (2) the recipient can opt out of the expedited process; or (3) the recipient can ask RIDEM to issue a formal NOV. A failure to answer the expedited citation is treated as though the recipient has opted out of the process. In the event that the citation expires or the recipient opts out of the process, RIDEM may still proceed to issue a formal NOV.
To the extent that an expedited citation is directed at minor infractions where liability is clear and the fine does not exceed $2,500, an expedited proceeding is an enticing option for avoiding the legal and administrative costs associated with an AAD appeal. However, before embarking on the expedited citation process, the regulated community should carefully weigh protections that might be lost by that choice. In the first instance, there is no hearing available in the expedited citation process. RIDEM also appears to envision that alleged violators and RIDEM will deal directly throughout the expedited citation process. Indeed, RIDEM has suggested that the initiative will allow alleged violators to avoid or save on legal fees. However, proceeding in any regulatory enforcement action without the advice of counsel is ill-advised and recipients of an expedited citation should consult an attorney before deciding whether to pursue the expedited process or opt out.
The new expedited citation law also fails to make any reference to the means by which a settlement will be memorialized. It is unclear whether RIDEM plans to offer a settlement agreement as part of the expedited citation process or otherwise provide alleged violators with a complete release. For the business community, it is important to make sure that violations can be released and discharged or that there is other evidence establishing that the matter has been resolved without any admission of liability. Businesses often have to report environmental violations or payment of “fines” or “penalties” to shareholders, on contract bid papers and in regulatory filings. It follows that careful attention should be paid to avoid even the appearance of admitting liability as a result of settling a citation and paying an administrative fine. Therefore, any settlement under the new process should include a written settlement agreement with release and “non-admission” clauses.