A Consent Order is a legally binding document that should be taken seriously because it binds the permittee to a course of actions, fines and penalties. It is important that you retain a professional engineer and an attorney that have experience working through Consent Orders. The Consent Order is a legal document but has many technical matters that need to be interpreted by a professional engineer. The Consent Order should be changed from its original form to be mutually viable for both the Agency and the Permittee. This typically requires several iterations and several meetings between the parties. The Consent Order typically has two parties the Complainant (Agency) and the Respondent (Facility Owner, or Permittee). A Consent Order is typically organized as follows:
* Description of Agency with its powers and duties.
* Description of Permittee with its organizational form and location.
* Description of the Facility.
* Chronological description of all of the violations being charged.
* Ordered – the description of the commitments, actions and
schedules being ordered by the Agency.
* Settlement- statement of the fines to be paid now and
penalties to be paid on any subsequent violations.
* General Terms and Conditions of the Consent Order.
Read the Consent Order thoroughly. Verify that all of the information is accurate. For instance, is the Permittee being referenced accurately. Also verify that the violations that you are being charged with are accurate. (This is one of the reasons that it is so important to respond to every non-compliance letter in a responsible manner and challenging any matters that are not accurate. Eventually, non-compliance letter may turn into Consent Orders). If the charges are not accurate or if there are mitigating circumstances that were addressed in previous responses to those charges now is the time to bring that up. Narrow the violations down as much as possible.
Consult with your Engineer to verify the ramifications of the commitments, actions and schedules being Ordered. Many times these are not stated in terms that are achievable or may be very difficult for the permittee to comply with. Also some of the actions may not be feasible. If this is the case then explain this to the agency and work on terms that both can live with. Remember that once you sign it it is binding. Lastly, negotiate a settlement that makes economic sense. Agencies many times rather see you put the money into fixing the deficiencies rather than pay fines which present a hardship for the Permittee to make the repairs. So work this out with the agency and let them know of your situation and propose alternatives in making repairs sooner rather than later in working out a settlement. The document should be two-sided so that both parties can live with the result and achieve the mutual goals of compliance at a reasonable cost.