From “Oh No!” to “OK”: Effectively Responding the Moment You Discover an Environmental Problem

Environmental noncompliance happens.  Although each issue calls for its own type of response, there are best practices to promptly and effectively respond.  As a first step pause, carefully evaluate the compliance obligation, and consider the timing of any noncompliance and deadline.  For example, did you miss an internal deadline, like a regular inspection for your SPCC plan, or was this a reporting deadline like a Tier II report?  Do I need an expert to determine whether there was, in fact, noncompliance?  Next, determine how the noncompliance happened and how to prevent recurrence.  Was it found during an audit of your site or did a regulatory inspector bring it to your attention?  These are some of the important questions to answer when considering your options to best respond and mitigate liability.

Consider some initial tips when responding to a noncompliance issue:

  • Determine if a response to an agency is necessary – not all issues are reportable.  Always check your permits and regulatory requirements.
  • Make sure you have a corrective action plan in place to resolve the noncompliance.
  • Timing is key – don’t rush a response but be prompt in responding.  If a due date is put on a notice of violation (NOV) letter, make sure you hit that deadline or, if appropriate, communicate with the agency about an extension.
  • Remember to be courteous and cooperative with  regulators — they are doing their job.
  • If the noncompliance is found during an audit, you may be able to disclose through the EPA and state’s audit policies.  Under these audit policies, self-disclosure can help mitigate penalties and establish credibility with agencies. 
  • Provide information requested by agencies in accordance with applicable permit conditions and laws, but be careful not to overshare information with agencies.

Another question you may have is – when do I need to call on outside support?  If you are unsure whether there is a violation, how to respond to a request, how to do a regulatory report, or otherwise feel uncomfortable with the situation, experienced consultants and attorneys can help.  Consultants are great for providing technical support, auditing for other noncompliance, and helping you turn around your compliance.  Attorneys  interpret regulations to determine whether a violation exists, develop arguments in cooperation with consultants, and protect and guide audits with privileged communications and legal advice.  They can help craft persuasive responses and defenses, work directly with agencies as a buffer, and provide representation in negotiating settlements or in litigation if needed.

As you put out the initial fire, your focus should shift to prevent the same issue from happening again. This may mean you need to update your calendar to track compliance due dates or pull in outside support to review your current environmental management system.

 

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