The lead article in The Environmental Forum, May/June 2016, was related to increased criminal liability for environmental regulatory offenses. The article includes a sidebar from John C. Cruden, Assistant Attorney General in Charge of the Environment and Natural Resources Division. Mr. Cruden said, in part:
“When I became assistant attorney general, I immediately established as a primary goal of the Environment and Natural Resources Division vigorous enforcement of federal pollution control and wildlife protection laws…The Department of Justice’s environmental and wildlife prosecutions send a strong deterrence message and illustrate the vital importance of criminal enforcement of these laws” (emphasis added).
At a minimum, we have observed a consistent expression to increase enforcement on a variety of fronts, from air-quality issues to water-related issues and hazardous waste and materials.
And when you consider this “primary goal of …vigorous enforcement,” combined with the Flint, Michigan, lead-in-drinking-water issue and the August 2015 release attributed to the EPA at the Gold King Mine in Colorado, we may have some insight as it relates to the tone of regulatory pressure. Will this tone include enforcement and a very conservative, inflexible approach to compliance?
While we cannot say that this is actually occurring in the regulatory arena, let’s assume for the sake of argument that this is the current “atmosphere.” What might be some proactive steps to take? Here are a couple of suggestions.
Environmental Compliance Status
First, consider your environmental compliance status. There is no way of saying this without sounding self serving, but for heaven’s sake, don’t price shop for your assistance. Like some of our contemporaries, we’ve seen many unfortunate examples where someone asks us, years after they hired a consultant, to look at a compliance assessment to provide a second opinion. In many instances, our opinion is that they are (sometimes grossly) out of compliance (and vulnerable to enforcement).
If your “gut” tells you that your current assessment might be lacking, do a gut check. Find legal counsel and environmental consultants that you trust, and lean on them for advice.
Be Cautions about Commitments
Second, don’t “just do it.” While the mood of regulators may be risk averse and enforcement might be the goal, that does not negate your right to question their judgement (another reason why you need good legal counsel).
The regulators may believe they are correct in “requesting” certain corrective actions or investigations. They may very well be correct, but make sure you really understand what’s going on and then proceed with caution.
Here is an example. Several years ago, we were referred to a client that (1) was ready to implement an expensive groundwater pump-and-treat system to address TCE in groundwater on their site and (2) was being implicated for TCE in groundwater in the adjacent neighborhood.
Before they “followed orders,” they asked us to peer review the assessment and provide recommendations. We found, and eventually the regulators agreed, that the TCE on their property was not associated with the TCE in the neighborhood; further, they didn’t need the remediation system. They would have spent millions of dollars and been entangled in a lawsuit, and the residents would have been no closer to having the issue resolved.
There are some very well prepared environmental assessments with conceptual site models that substantiate the need for immediate action. However, based on our experience, there are at least as many poorly-prepared environmental assessments that will lead to costly undertakings and not mitigate the environmental risk.
As it relates to understanding groundwater, we have created a series of papers that you can download for free (Eight Keys to Successful Remediation).
Regardless of the tone of regulators at any particular time, environmental compliance is a “reasonable” goal for everyone, regulators and regulated alike. Achieving this common ground requires a measured and thoughtful approach.
If you need assistance with an environmental issue, please contact Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) at 248-932-0228, ext. 125.