Successfully Navigating Environmental Compliance

How do we define success?

It’s a question every organization, and every department within it, must answer.

In the field of environmental enforcement—where success seems to be measured by the number of violations recorded, total dollars collected from fines and penalties, and the number of civil and criminal prosecutions—the deck appears to be stacked against businesses.

But Connecticut manufacturers heard some good news last month at a special meeting of CBIA’s Environmental Policies Council. The meeting, held at E.C. Goodwin Technical High School, included a panel of federal criminal enforcement agents as well as officials from the U.S. Environmental Protection Agency and Connecticut’s Department of Energy and Environmental Protection.

Their message to businesses was clear:  We don’t expect perfection. What matters most is how seriously you take environmental compliance and how you respond to a mistake.

“A successful year,” said Assistant U.S. Attorney for the District of Connecticut Ray Miller, “would be one in which my office had no prosecutable cases. The closer we get to compliance, the better.”

Compliance Traps

Deirdre Daly, U.S. Attorney for the District of Connecticut [pictured above], explained that a company’s internal environment is often what undermines its environmental compliance program.

“In some cases, middle managers and boots-on-the-ground workers know about violations,” she said, “but a hierarchical corporate structure, a culture of intimidation, and fear of retribution keep those folks from reporting up the chain.”

Other traps, said Daly, are seemingly positive environmental policies that backfire.

“Some companies have a policy of zero tolerance. But zero tolerance isn’t always the best practice. It can force issues underground, so a company’s leaders may not hear about environmental violations. The news never makes it to the top. “

Also problematic is the notion that everyone is responsible for environmental safety.

“When engineering is responsible, and EH&S is responsible, and everyone else is responsible, then no one is responsible.”

In addition to policies that fail, said Daly, common occurrences and practices that lead to environmental lapses include:

• Workers operating in silos
• Production managers doing double duty as EH&S managers
• Inadequate auditing and training of personnel
• Failure to “get the right personalities in EH&S who can handle the healthy tension between the environmental safety management and production ends of a business”
• Leadership transitions

On this last point, Robert Girard, assistant director of enforcement for DEEP’s Bureau of Air Management, noted, “We all would admit that environmental regulations can be very complex. Violations often occur when and where there’s staff turnover—a break in continuity—people who may not be up to speed on environmental compliance or a company’s approach to it.”

‘Not Out to Criminalize Civil Action’

Ninety percent of cases initiated by the U.S. Environmental Protection Agency’s Criminal Enforcement Division result in convictions, said John Gauthier, special agent in charge at the EPA, who acknowledged the challenges businesses face when it comes to staying on top of numerous and changing statutes.

“There’s RCRA, CERCLA, CWA, SDWA, CAA, EPCRA, FIFRA, TSCA”—environmental laws that are often nuanced and difficult to interpret.

“We’re not out to criminalize civil actions,” said Gauthier. “We’re not after companies for failing to correctly interpret the law or for making mistakes.”

“That’s not where we’re going to shine a light,” Daly agreed.

In fact, Gauthier noted, most of the cases brought to his office are never pursued.

So, what makes an environmental violation a criminal case?

Miller explained. “Agents look at what is the company’s record, its history of violations. What catches our attention: Were employees trained? Supervised? Did supervisors participate in the violations, or did they work to address and correct them? Were violations properly and promptly reported? There are certain notification windows.”

He added, “People make mistakes. How the company reacts is, quite frankly, of paramount importance to us. What we look at closely is the corporate response to a bad act.”

Peter Kenyon, senior regional criminal enforcement counsel for EPA Region I, reiterated that the federal government is not trying to criminalize innocent or negligent behavior.

“We want the standards to be quite clear. We don’t want people to wonder if they’re committing a violation. While ignorance of the law is no excuse—these are public health statutes—we know that there are thorny compliance issues.

“What turns a civil case in to a criminal case is often the corporate response to it. Was there voluntary disclosure?”

This past August, the former head of a New London manufacturing company pleaded guilty to a criminal charge of knowingly allowing the dumping of chemical pollutants into a publicly owned treatment works for over seven years.

Workers repeatedly warned the company’s CEO about illegal wastewater discharges after he took over as CEO in 2003. (The company had been discharging industrial wastewater without a required permit since at least 1986.)

Employees had requested that the company install a pretreatment system, and a manager had emailed the CEO asking him to bring the company into compliance.

The CEO, who ignored employees’ warning and requests, could face three years in prison and thousands of dollars in fines.

‘We’re Willing to Meet with You’

Cases like this one, fortunately, are rare in Connecticut.

Calling environmental violations in the state “mostly minor and correctable,” DEEP Commissioner Robert Klee emphasized his agency’s continued focus on transparency, process improvement, and “heavy investments in pre-application guidance and compliance assistance.”

“We’re working toward a reverse pyramid,” said DEEP’s Nicole Lugli, describing an approach to environmental compliance that’s accomplished primarily through technical training, education, and permitting assistance rather than referrals and administrative orders. Lugli is office director of compliance assurance for the agency’s Office of Planning and Program Development.

“The message is we’re willing to meet with you to understand your business and your challenges,” said Klee, “and help you solve those problems.”

The special meeting at E.C. Goodwin Tech ended with a Q&A between manufacturers, regulators, and enforcement officials, followed by a tour of the school’s manufacturing center, where students training for jobs in various high-demand industries met with prospective employers.