I have been on all sides of the fence relative to environmental enforcement actions. I have represented the State, managed Ohio EPA enforcement program and now I represent companies who find themselves the subject of enforcement. These experiences have given me valuable insight into what things to do and not to do when dealing with compliance oversight.
When speaking on the topic of enforcement, I am asked to provide practical advice on how to reduce the chances that your business will be a target of EPA enforcement. In this post I provide five tips regarding your early interactions with EPA.
Much of my advice may be viewed as simple common sense. However, I am consistently surprised how many times companies don't follow these simple steps.
Relationship with Inspector-
Most inspectors are assigned a Division (air, water, hazardous waste, etc.) and a geographic territory. This means you are likely to see this same person again and again at your facility.
- If possible, try and develop a good relationship with the inspector. Cooperation at this lowest level can often prevent communication issues that sometimes lead to enforcement.
- Also, while not true in all cases, developing a good reputation with inspector assigned to your facility may lead to additional flexibility when addressing Agency concerns or issues.
Ask yourself- Which report or permit application will get more scrutiny- one submitted by a company with a good reputation/relationship or a bad one....
The EPA Inspection-
The Agency has the ability to perform both announced and unannounced inspections of your facility. It is understandable that companies are frustrated by the disruption that an EPA inspection causes at their facility. Just don't let that frustration carry over to your interactions with the inspector.
- Listen closely to the inspector- Accompany them during the inspection. If they point out concerns that can easily be addressed, fix them. Also, follow up in writing telling the inspector what you have done. EPA appreciates pro-active companies who listen and respond to Agency concerns. This can go a long way toward establishing a good reputation.
- Debrief with the inspector- Don't be shy about asking for an oral report of the inspector's findings during or after the inspection. Take notes of any concerns or requests for information made by the inspector. Then follow up if possible. Don't wait for the inspector to provide a letter if you can easily address some of the issues. If you are able to provide information not available during the inspection that demonstrates compliance, you may avoid seeing these issues in a formal notice or letter from EPA.
Respond to Requests for Information or Notice of Violations-
If you receive a notice of violation (NOV) or a request for information, respond within the time frame requested or write and ask for additional time. ALWAYS WRITE A RESPONSE. It is far better to write a letter formally disputing findings, then to not respond at all.
- Silence will quickly lead to more NOVs and escalated enforcement. Companies have learned time and again, simply ignoring the situation will not make it go away. Also, the higher you go up the enforcement chain the more likely you will see a demand for civil penalties.
In the Early Stages of Interaction Involve an Attorney to Help Respond-
This may come across as a blatant advertisement, but its not intended as one. The fact of the matter is the difficult compliance issues often arise due to the complexity of the environmental regulations.
- How your respond or what information you choose to provide in this early stage can significantly impact the likelihood or severity of escalated enforcement. Make sure you are putting your company in the best defensive position possible, particularly on issues that carry significant risk of liability.
Try and Resolve Issues at Lowest Level Possible-
A common reaction of companies who find themselves in a major disagreement with EPA or subject to enforcement, is the to call senior management and complain. Some may think if they just get management involved they will see it their way and the issued will be resolved.
- Due to the number of issues that arise, senior manager constantly push decision making down to the lowest possible level. Usually the first question you will get when you call is "have you talked through these issues with staff assigned?" Even if you don't hear that question, the first thing they will do when the hang up the phone is to call the inspector to hear "their side of the story."
- Remember, you are trying to build a relationship with your inspector. It is human nature to not like it when someone tries to "go over your head." Sometimes the situation demands such action be taken, but be prudent when choosing to utilize that option.
Of course every situation is different. The five pieces of practical advice are meant to be general guidelines on conduct rather than legal insight. The more significant the dispute or compliance issue, the more cautious you should be in your interactions with the Agency. Hire a good supporting team to assist on those issues.