“The Scarlet Letter,” a book written over a century ago, is a tale in which public shaming is used to punish and modify behavior and serve as a lesson for others. EPA has taken a page from Nathaniel Hawthorne to paint a regulatory scarlet “E” on otherwise law-abiding companies.
EPA claims the number of inspections and enforcement actions will drop 30-40 percent over the next five years due to budgetary constraints. In response, EPA seeks to radically change the federal inspection enforcement paradigm by making information about emissions public and readily accessible. In doing so, EPA clearly seeks to induce (shame?) a regulated entity to reduce its emissions (even if those emissions are within permitted levels) so the entity will not be regarded in the community in which it operates as an excessive polluter. If a facility remains impervious to this “emission-shaming” tactic, the public information may be used by environmental groups to file citizen suits or by plaintiff attorneys to support damage claims.
The compliance and emission data that is now, or will soon be, readily available will be used by regulatory agencies to conduct regular enforcement actions. It will also be used by environmental groups and plaintiff lawyers. As EPA has changed the paradigm, facilities must adapt and proactively address this shift.
The obvious best course of action is to comply with the underlying regulation and provide accurate and truthful reports. Facility personnel responsible for compliance need to be trained in and fully understand the rule. However, there are several additional actions that can be taken to minimize the possibility of noncompliance.
An internal audit should be conducted prior to the effective date of the rule (if possible) to provide information regarding potential violations as well as systemic practices that may be causing violations. Any deficiencies should be corrected prior to the effective date. A Standard Operating Procedure (SOP) should be developed to govern compliance efforts, and all facility personnel should be trained in the SOP. Facility management must actively ensure adequate attention is given to compliance with the SOP. The SOP should contain a set of internal compliance documents, such as checklists or inspection reports, to be used by facility personnel.
To reduce the possibility of successful damage claims, a facility must understand the amount of pollutants leaving the site. Advanced monitoring technology, such as infrared cameras or open-path technologies, can be employed to ensure there are no unknown sources of fugitive emissions, such as a faulty seal on a tank. Any such sources should be immediately repaired.
All of these steps should involve counsel to enhance the protection of communications, work product, and results under the attorney-client and/or work product privileges. Counsel should engage, commission or hire any necessary personnel, experts or auditors and ensure all reports from any such efforts are sent only to counsel. Counsel will provide, in a confidential and privileged memo to the facility, the results and any necessary corrective actions.
EPA has very clearly signaled its intention emissions information will be made available to the public for the public’s use. While tactics designed to shame facilities to lower emissions or enhance compliance may seem unwarranted, they nonetheless are upon us. Facilities that adapt to this new reality by taking proactive measures now will minimize the likelihood of getting embroiled in costly litigation in the future.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, contact John B. King at jbk@bswllp.com or call (225) 381-8014.
