Ten Simple Rules of Avoiding Environmental Liability

Sirote & Permutt PC
Charles R. Driggars

June 8, 2015

There is virtually no business today that does not, to some degree, have the potential for liability under the myriad environmental laws; for many businesses, this potential is a daily concern. News stories concerning the indictments for environmental violations of individuals long known as respected members of the community are not uncommon and are a stark reminder of the serious, even potentially criminal, consequences that can arise from alleged noncompliance with environmental regulations. Frighteningly enough, this risk applies to responsible individuals who do their best to do their jobs; the complexity of environmental laws and the difficulty of their applicability in the “real world” make even the best-intentioned employer or employee at risk for such actions.

The engine that fuels this country’s economic power (and standard of living) consists in large part of chemical plants, manufacturing operations, and agricultural businesses to whom laws protecting the environment are not an abstract “good” but are instead a regulatory minefield in which noncompliance can mean, at a minimum, lost time and money in dealing with regulatory enforcement actions.

Any businessman would rather spend his money improving his business than fighting the Environmental Protection Agency or the Alabama Department of Environmental Management.

Given that the best litigation is no litigation, the following simple suggestions and tips are intended to inform, and to some extent remind, of sensible steps to be taken to avoid having to pick up the telephone and make the dreaded call to one’s lawyer that “We have a problem.” These rules are basically common sense, but, as someone once said, “Nothing is quite so rare as common sense.”

Follow these relatively simple steps, and you decrease the likelihood of problems with environmental agencies by orders of magnitude. Even if you are unable to avoid problems entirely, following these suggestions will help you minimize the cost of dealing with those problems once they arise. Further, some of these steps will help establish you as one of the “good guys,” an important matter if future enforcement does occur.

A certified mail receipt is your best, cheapest insurance.

This suggestion may seem absurdly obvious, but certified mail receipts have been the difference between liability and nonliability in more than one environmental case. Perhaps even more importantly, the receipt may prevent a dispute from becoming a case. Whenever you deal with a regulatory agency, make sure that any communication in writing with the agency, particularly if made in response to any type of deadline or demand, is sent certified mail. Regulatory agencies are swamped with paper, and no one cares as much as you do about keeping accurate records of your communications and explanations protecting your business. If the agency has lost a return receipt and has reason to believe your correspondence was late, you’re having a timely, signed receipt in your files may literally save thousands of dollars in legal expenses and time. In this day of e-mail communications, it is still important that particular types of communications – such, as noted, responding to any type of enforcement letter – be sent the old-fashioned way via certified mail.

Do the paperwork first and consistently.

The inspector of a regulatory agency has the responsibility of checking for a host of possible instances of environmental noncompliance. The most easily checked and recognized are failures of the party to have paperwork up to date and available for inspection. Hazardous waste manifests, test reports, incident reports, and other documents that are required by law to be kept available at a facility should never be looked at as “ordinary” paperwork. To the regulatory agency, the requirement of keeping up with the paperwork is a Regulation, with a capital “R,” and is often the focal point of the inspection.

Do not make the mistake of thinking (and certainly not saying to the inspector) that a failure to keep accurate records is a “technical” or “paper” violation. Referring to the violation in that manner is tantamount to fingernails on a blackboard to representatives of environmental agencies. Such disparaging references to recordkeeping violations will not endear you to the inspector or the agency; to the contrary, the agency will consider that an indication of a generally lax attitude toward environmental protection.

Find out what requirements affect you and make them known.

Again, this bit of advice sounds so obvious that it seems silly to mention it, but there is a trick to this rule. Environmental regulations, by their nature, tend to be densely written, intimidating, and confusing. It takes patience and time to figure out exactly what you are not supposed to do or what you are supposed to do. Have someone assigned the task of reading the applicable regulations and writing a summary of what should be done in easy-to-understand language so that all employees know what is expected of them, or, at least, have been given the clear opportunity by the company to know.

Determine which rules apply to your facility, have a copy of the regulations available in case of questions, and make sure that the responsible people know precisely what is necessary to comply with the rules. As a side note – although it could qualify as a separate, important recommendation – many recommend that there be one individual who has primary responsibility for seeing to compliance with all environmental laws with so that there is one central clearinghouse for information about the regulations. Having an environmental officer is not always possible, but, if more than one individual is in charge of the environmental compliance, communication between those individuals is critically important to avoid violations created simply because of misunderstandings regarding who has responsibility for the particular area.

Keep the numbers of the ADEM Ombudsman and the EPA Small Business Ombudsman handy.

Particularly for small businesses, these numbers provide quick access to regulatory information. While not a perfect system, state and federal agencies do make a genuine effort to assist small businesses, in recognition of the difficulty in maintaining compliance with complex environmental regulations.

You can access the EPA’s web-site at http://www.epa.gov/sbo/. I suggest this option, as personnel and addresses can change.

Handle inspections prudently.

Regulatory agencies have a statutory right to inspect regulated facilities at reasonable times. During the inspection, it is wise to have a brief pre-inspection meeting, at which time you can ask for the authority of the inspector and the purposes for the inspection. Pass around a dated sign-up sheet for people attending this pre-inspection meeting and keep it on file. It is wise to assign an individual to accompany the inspector on his rounds. If the inspector notices something as a possible violation, the attending employee should also make note of the possible problem.

It is also wise to have a post-inspection visit with the inspector, asking him for his findings in the inspection. If any violations have been noted, you will then have an opportunity to move promptly to correct them. If there is a dispute about a violation, it gives you an opportunity to see the violation and possibly explain why it is not a violation. If the dispute can be resolved, you have the opportunity to memorialize (by photographs, etc.) the status of the situation at that time so that when the issue arises in the future, there is evidence to support your position that no violation existed.

Confirm with a letter.

If you are given information in person or over the telephone by a representative of a regulatory agency, and if that information is of a substantive nature, it is often a good idea to confirm in a letter (or, if you ask for confirmation it was received, an e-mail) to the agency what has been said. Sometimes businesses are reluctant to do so, fearing that the agency may take that as an indication the agency is not trusted. Nothing could be further from the truth. The agency understands the need for discussions to take place in a businesslike fashion. Writing the letter allows the agency to see what the business understands it was told. If the business has a misunderstanding, a confirming letter allows the agency to correct that misunderstanding immediately. If the letter correctly memorializes the discussion, that may save confusion down the road. Of course if a letter, send it certified mail.

Keep all correspondence with your attorney separate and confidential.

Your discussions, by memoranda, correspondence, and otherwise, with your attorney are privileged, so long as you maintain them as confidential and privileged. In other words, those documents and communications should not be shared with anyone who does not share the privilege; consequently, your letters to and from your attorney should not be shown to anyone who is not a part of the privilege itself. Those letters should never be kept in ordinary files that are to be reviewed by the government, but rather in secured, separate files. Maintaining the attorney/client privilege is one of the most important things you can do to protect your rights and your ability to communicate freely with your attorney. Unfortunately, the attorney/client privilege can potentially be waived by an act as simple as the careless filing of attorney/client correspondence. Consult your attorney with respect to the question of who within your organization falls within the privilege.

Document your training.

Training employees is often a requirement under environmental regulations; so is documenting the fact that training has taken place. In addition to the documentation required by the regulations, you may want to consider digitally recording or videotaping the training of your employees. There are a variety of reasons for doing so: the videotape may be used in training other employees; if a question ever comes up by an employee that he did not receive training, there is evidence in the file; and, finally, a videotape is a good way to show the agency the extent to which you have gone through the training sessions (this advantage obviously depends upon your commitment to accomplish the training in an acceptable manner and to the proper extent). Given the wide availability and falling prices of recording technology, the expense is no reason not to record these sessions.

Communicate concern to your employees about environmental matters.

In personnel books, on bulletin boards, and in other means of communicating with employees, use the opportunity to let them know that the company, as an important company policy, takes environmental compliance seriously. In addition to reinforcing that fact to the employees, it certainly will not hurt in the event of a violation for the agency involved to be made aware that the company has an express, written policy emphasizing to employees the importance of complying with all environmental regulations.

Further, having this policy published to employees may be helpful from a labor-relations standpoint, in the event it becomes necessary to discipline or even terminate an employee for violation of the company’s policy regarding environmental regulations. The employee will not be able to argue that there was never any warning that such violations were considered by management to be serious and that this type of discipline could occur.

Tell your employees: Don’t panic!

Once in a while, despite a company’s best efforts, personnel may fail to properly perform certain tasks, which, although important, may become somewhat tedious, such as, for example, logging in inspections of tanks or drums containing hazardous waste. Upon becoming aware that an inspector has arrived at the plant, there is sometimes a very human reaction, born of sheer panic, for the individual responsible to pull out a pen and fill up the log to make it look as if it has always been properly maintained.

Obviously, that reaction, human though it is, must be resisted; it is both wrong and extremely dangerous for the employee and the company. Falsifying records throws you clearly over into the criminal side of environmental law, and a routine inspection can suddenly take extremely ominous overtones. Let your employees know that they are expected to maintain logs and records in an appropriate manner, but that if one fails to do so, that fact should be acknowledged and rectified – and noted on the records – as soon as possible. Let the employees know that the company would far rather take its medicine from the agency than have an employee panic and make the situation worse by trying to cover up the violation, and therefore any such cover up is forbidden. Even if the company is fined for failure to maintain adequate records, a fine is far less harmful to the company than the loss of credibility with the agency (and the public), not to mention the possibility of a criminal referral as a result of the panicked falsification of required records.

While these suggestions, as indicated, may hopefully seem little more than common sense, it never hurts to be reminded; after all, employees and regulations change, and making these suggestions habits will pay serious benefits now and in the future. In the complexities of the environmental regulation arena, the most serious liabilities often stem from the failure to do the simple and “obvious” things. After all, you do not want to win an environmental enforcement administrative action or lawsuit; you want to avoid it.

One final personal observation: for the most part, the regulatory agencies are staffed with dedicated, hard-working people who are simply doing their job, not trying to casually or maliciously hurt your business. If you or your employees assume or adopt a hostile attitude toward them generally, it does not help (to put it mildly) your company. Resist the temptation to demonize inspectors as “interfering bureaucrats” who “don’t know anything about your business.” Even if, on occasion, that is true, it does not change your eternal dynamic with the agency in question, and all exchanges with an environmental inspector or agency should be cordial and businesslike. After all, once the current dispute is over, you are going to once again be under that same agency’s authority, and you do yourself no favors by burning bridges.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Driggars and may not reflect the opinions of Synergy Environmental, Inc., Sirote & Permutt PC or either of those firms’ clients.


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