The first thing a facility can do to minimize its exposure is to avoid environmental regulation (easier said than done). The second is to undertake waste reduction and/or recycling. Perhaps the most effective method of minimizing exposure is to be proactive. Report non-compliances promptly; however, do not volunteer extraneous information. Train your employees; environmental and safety training must include all personnel with special emphasis on operations personnel. Hire help, including lawyers and consulting firms. Get to know the regulators.
Conduct your own audits. Problems may arise in funding the audit, securing the right people or consultants or the right mix of people and even with securing internal authority to conduct the audit. Once the audit is completed, make the follow-up on the audit a priority. Reviewing an audit and deciding to do nothing is better than deciding to do nothing. Designate responsibility within the company for the follow-up. Make sure there is the necessary financial commitment. Doing nothing can and will get you in trouble and may result in criminal action.
Prepare for inspections. Make sure your facility records are in order. Establish procedures for document retention and facility access by agency personnel. Make sure personnel know how to react when an inspection occurs or a search warrant is served. This includes the security guards, environmental compliance personnel, facility managers and field/operators personnel. Limit, as best you can, opportunities for investigators to talk to employees. An ingenuous investigation will obtain subpoenas. See Bailey v. Secretary of Labor, 14 OSHR 1534, 19 OSHR 2083, cert denied S. Ct. No. 90-1218 (April 22, 1991).
Institute a confidential suggestion box for environmental compliance and follow-up on each suggestion. Make sure the facility has a firm environmental employee compliance policy; follow it and enforce it.
Finally, designate a point person for inspections. That person should be knowledgeable, low key, unflappable and congenial and should also establish a continuing relation with the agency personnel.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii