HESSIAN & MCKASY, P.A.
On May 29, 2019 the Minnesota Department of Health's ("MDHs") Mortuary Science Section issued an Administrative Penalty Order ("APO") to Washburn McReavy ("Washburn"), one of Minnesota's oldest and largest provider of funeral services. The APO alleged that Washburn had violated state statutes by failing to cremate or embalm the body of a deceased individual and failed to cremate within a statutory time frame. Under an MDH statute, alleged violations which are not contested or found in a hearing to be substantiated, are publicized via an MDH website.
Washburn contested the APO and requested a hearing before an Administrative Law Judge ("ALJ") to review the APO. Washburn contended the body was refrigerated at all times and the family of the deceased specifically requested that the body not be embalmed. With regard to the statutory requirement that the body was held too long, Washburn McReavy noted that while arrangements were pending the family called another funeral home and set a Memorial Service without advising Washburn that it had decided to make a change in the arrangements.
A hearing was held to consider cross motions from Washburn and MDH. Washburn contended that the APO was deficient in that it failed to state factors to be considered in setting the penalty. In a Recommendation on Cross-Motions for Summary Disposition dated March 11, 2020 the ALJ agreed with Washburn's contention that it had properly refrigerated the deceased's body. The ALJ found that Washburn had not complied with the holding time limitation in the statute but that under the circumstances the imposition of a penalty would be unjust. Finally, the ALJ recommended that the MDH Commissioner vacate the APO.
After the hearing and receipt of the ALJ's recommendation MDH's Mortuary Science Section agreed to rescind the APO. A copy of the ALJ's recommendation is found at the link below.
Alfred Schumann v. Sheryl Corrigan, Commissioner, Minnesota Pollution Control Agency (Olmsted County, MN District Court 2004)Represented Al Schumann, developer from Eyota, Minnesota, in an action in Olmsted County District Court seeking review of Minnesota Pollution Control Agency ("MPCA") administrative penalty order. The MPCA alleged that Schumann violated stormwater regulations when he constructed a 19 acre residential development. The MPCA sought a $4,500 penalty and required Schumann to take corrective action, constructing a stormwater pond at a cost of up to $100,000. In a summary judgment motion we argued that the MPCA had no basis to issue the order because there was no discharge to the "waters of the state."
Olmsted County District Court Judge Lawrence Collins granted summary judgment to our client. Judge Collins granted an award of attorney fees of $111,500 to Mr. Schumann noting that the State did not have a factual or legal basis for its claims. The fee award was the most ever awarded under the Minnesota Equal Access to Justice Act (MEAJA). MEAJA is designed to protect small businesses and their owners from state agencies that file cases without merit. Minnesota Law & Politics designated the case as "Lawsuit of the Year."
A copy of the Court's Order in the Schumann case is found below.
State of Minnesota v. Rollies Sales & Service, Roland Walsh and Dale Walsh, (Douglas County, MN District Court, 1999)
Defended Rollies Sales & Service, Inc., a petroleum services business located in Osakis, Minnesota, its 34 year old President, Dale Walsh, and his 62 year old father, Roland Walsh, from a prosecution brought by the State of Minnesota and its Pollution Control Agency. In the complaint, which was filed in 1994, the State alleged that the business and the two individual defendants violated numerous environmental regulations. The State sought to collect civil penalties of up to $250,000 and its attorney fees.
Through pre-trial motions and during the liability phase trial in 1999, the defendants undermined major elements of the State's case. Judge Paul Ballard found that since the few violations that the State proved were "minor" and caused no harm to the environment, a nominal penalty of $3,400 was to be paid to the State by the corporate entity, Rollies Sales & Service, Inc. The Court found that the State erred in naming Dale and Roland Walsh as individual defendants under the "responsible corporate officer doctrine" established in In re: Dougherty, 482 N.W. 2d 485 (Minn. Ct. App. 1992).
Judge Ballard found that the State had "no reasonable basis in law and fact" to prosecute the Walshes. The Court awarded the two individual defendants $66,000 in attorneys fees under the Minnesota Equal Access to Justice Act. At the time the fee award was the highest ever granted under the 1986 law designed to protect small businesses and their owners from state agencies that file cases without merit. The State of Minnesota declined to appeal the Court's award.
Copies of the Court's orders in the Rollies Sales case are found below.
Multi-State Phase I, Phase II and NEPA Assessment of Owned and Leased Property (Minnesota, Wisconsin, Iowa, North Dakota, South Dakota, Missouri and Illinois, 2001 to present)
Responsible for directing environmental due diligence for a major telecommunications company in the seven states in the Upper Midwest. Reviewed and commented on several hundred draft Phase I Environmental Site Assessments prepared under the American Society of Testing and Materials Standard Practice E 1527-05 and the All Appropriate Inquiries standard. Prepared environmental risk assessment opinion letters for each site evaluating identified "recognized environmental conditions." Recommended Phase II work at numerous sites. Coordinated environmental site assessments with site acquisition consultants, design firms, attorneys involved with real estate transactions and in-house client contacts.
Supervised consultants involved with Phase II work conducted at numerous sites to assess potential soil and groundwater contamination. Depending upon Phase II results, directed the development of Site Contingency Plans and, where appropriate, applications to state voluntary cleanup programs for liability assurances. Directed review of National Environmental Policy Act (NEPA) impacts at sites, including assessment of potential impacts on potentially significant historical resources.
U.S. Environmental Protection Agency and Various State Environmental Agencies (Various clients, 1991 through present)Represented businesses, local units of government and individuals in the negotiation of numerous administrative and civil actions where the U. S. Environmental Protection Agency (EPA) and various state environmental agencies, including the Minnesota Pollution Control Agency (MPCA) have sought to collect civil penalties for past noncompliance and required parties to conduct specific corrective actions. Developed written responses to Requests for Information and Notices of Violation. Appeared in contested administrative proceedings and in negotiations on behalf of clients in matters involving the Resource Conservation and Recovery Act (RCRA), the Clean Air Act, the Clean Water Act, the Emergency Planning and Community Right to Know Act (EPCRA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and various state environmental statutes and regulations.
Successfully negotiated significant reductions in proposed penalty assessments. Challenged alleged violations and obtained concessions on substantive issues that netted major cost savings for clients. Refuted arguments involving the assessment of economic benefit component or proposed penalty assessments. In appropriate cases, included Supplemental Environmental Projects (SEPs) as penalty mitigation.
Illinois Voluntary Cleanup Program
Manufacturing Site Investigation and Cleanup (Illinois, 1994 to 2004)Assisted corporate client with operations across the country with the investigation and remediation of industrialsite with documented release of trichloroethylene (TCE) at an Illinois manufacturing location. After it was determined that the release impacted neighboring nursing home property, the client filed an application with the State of Illinois Site Remediation Program, a voluntary cleanup program that permits owners of contaminated sites to implement flexible site cleanups.Representation included a variety of tasks including: (1) negotiation of access agreements with neighboring property owners; (2) drafting contracts with consultants and contractors who assisted with the site investigation and corrective actions; (3) negotiation of innovative treatment methodology and cleanup standards with State environmental authorities; and (4) coordination with outside counsel pursuing insurance recovery on behalf of the client.
Schnitzer Iron & Metal Superfund Site
Common Counsel, (Minneapolis/St. Paul, Minnesota 1995 to 1999)Named as Common Counsel for a group of twenty (20) parties identified by the Minnesota Pollution Control Agency (MPCA) as potentially responsible parties (PRPs) at the Schnitzer Iron & Metal Superfund Site in the Twin Cities. Group members included a variety of clients ranging from large multinational companies to small businesses and local units of government.As Common Counsel, Mr. Maternowski represented the interests of the Group by: (1) filing a declaratory judgment in federal district court challenging a de minimis settlement proposed the State with other PRPs; (2) mounting a successful lobbying campaign blocking State-sponsored legislation changing the statute of limitations under the State Superfund law; (3) defending the Group in a cost recovery action; (4) crafting a favorable settlement for the Group in mediation; and (5) initiating a subsequent PRP identification and cost recovery campaign that netted a significant recovery for the Group.
(Conducted at Facilities Across the Country and in Canada and Mexico, 1994 to present)Coordinated environmental health and safety audits conducted by consultants for corporation with manufacturing operations across the United States and in Canada and Mexico. Compliance management program includes periodic environmental compliance audits addressing compliance with federal, state and local environmental regulations. In addition, separate audits of worker health and safety and Occupational Safety and Health Act (OSHA) compliance.Review and comment on draft reports and identified areas of non-compliance. Assess potential liability and, where appropriate, the need to report releases to federal and state authorities. Assist with the preparation of recommendations of specific corrective actions and implementation of corrective measures.
(Wisconsin Manufacturing Company, 1991 -1993)Represented commercial property owner in civil litigation against neighboring gasoline station owned by major petroleum distributor. The case involved the release of a large quantity of petroleum from leaking underground storage tanks and an intermingled plume from a nearby agricultural chemical storage facility.Coordinated work of environmental consultants involved with site assessment and technical review of petroleum distributor's investigation and cleanup methodology. Appeared before the Wisconsin Department of Natural Resources on behalf of client. Conducted extensive discovery and motion practice in multi-party litigation in state court.