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GeoInsighter Spring
2006 Newsletter
Agencies Stepping Up
Environmental Enforcement
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At a recent Environmental Law Institute luncheon, Commissioner Robert
Golledge of the Massachusetts Department of Environmental Protection (MADEP)
reported on a significantly increased focus on enforcement of
environmental regulations by his department. Direct evidence of the
effects of this initiative is given in the MADEP report of enforcement
actions for calendar year 2005. The report is nearly 80 pages of
closely-spaced summaries of enforcement actions taken, administrative
and consent orders issued, and penalties assessed against a relatively
wide range of entities including municipalities, businesses, and
individuals. On average, approximately 50 actions were taken per month
in 2005. January 2006, the latest period for which enforcement
information was available, recorded a total of 56 enforcement actions.
The actions were taken for violations of regulations governing
essentially the full range of matters regulated by the Commonwealth
including wetlands, solid and hazardous waste, waste oil, air emissions,
wastewater discharges, asbestos management and abatement, waste site
cleanup, and water supply system management. Businesses were cited for
approximately 75 percent of violations. The most common violations were
of regulations governing air emissions (22 percent, including asbestos),
wetlands (21 percent), waste site cleanup (18 percent), and hazardous
waste management (14 percent). Municipalities received approximately 17
percent of the violations, typically for solid waste management, water
supply, and water management compliance issues.
It is worth noting that the penalties assessed for violations typically
ranged from $5,000 to $40,000. For example, failure to pay past air
compliance fees and installation of three emergency generators without
prior air plan approvals resulted in a $38,000 fine. Failure to comply
with air permit record keeping requirements resulted in a fine of
$7,000. Based upon tabulation of one quarter’s worth of the 2005
enforcement data, penalties averaged approximately $20,000, although the
median was around $10,000. Importantly, the Commissioner reported that
the MADEP generated sufficient revenue through these enforcement actions
that it was able to reestablish the Northeast Regional Office in Woburn,
which was recently relocated to Boston as a cost-saving measure. He also
indicated that this enforcement focus will continue.
The MADEP is focusing its enforcement efforts through its regional
offices. The recent experience of one of our clients involved a
multimedia compliance inspection by an MADEP inspector followed by issue
of a notice of enforcement conference identifying the violations noted
during the inspection. A copy of the inspection report was also included
with the notice. The multimedia enforcement inspection approach is
typical among the State regulatory agencies in New England, and
heightened emphasis on enforcement in general is likely in this day of
strained State budgets. Regulatory agencies are likely to pursue this
strategy in an effort to justify continued funding of their activities
by the legislative bodies and as a way of raising needed operating funds
outside the appropriations process.
In addition to the MADEP’s enforcement efforts, the regional office of
the Occupational Safety and Health Administration (OSHA) continues to
pursue an active inspection and enforcement program. A sampling of
recent enfo rcement
actions indicates typically higher penalties than those being assessed
by the MADEP, ranging from $60,000 to $140,000. The enforcement issues
involved in these instances include lack of engineering controls for
airborne exposures, lack of guarding on mechanical equipment, untrained
forklift drivers, electrical hazards, lockout/tagout violations,
inadequate aisle space, and blocked or inadequately marked exits.
What does this information mean to you
in terms of protecting your organization and its assets?
From a preventive
perspective, there are a number of recommendations to consider. Ensure
that planned changes in operations associated with increased production
or with changes in processes, equipment, and raw materials are
thoroughly evaluated in advance of undertaking them. We have frequently
seen businesses run afoul of air and hazardous waste regulations as a
result of production growth or process changes that caused them to
exceed air emissions permit limitations or hazardous waste generator
classifications, or both. A good time for this evaluation is during the
annual business planning process, but at the very least prior to
actually acquiring equipment or new process chemicals. It should be
noted, for instance, that most State air regulations prohibit the
delivery (never mind installation and operation) of new air-emitting
process equipment to the facility without prior review and approval of
its operation under the air permitting regulations.
In many instances, the most effective approach to managing this planning
function is to identify a specific position in the management team with
this responsibility and to require that all planned process and
production changes be reviewed by the person in that position. This
individual needs to be relatively senior in the organization to ensure
effective influence on planning and acquisition activities. Another
important preventive tool is to periodically self-audit facility
operations, either with internal staff or with the assistance of a
qualified consultant, to evaluate current compliance status and identify
and resolve any issues (see related article in this newsletter).
If you have been inspected by the State regulatory agency and compliance
issues were identified during the inspection, there are a number of
steps to be taken aggressively, and it is important to start them even
before receiving the inspection report or notice of enforcement action.
The objective of these actions is to improve your ability to reduce the
scale of penalties or, in the best case, to avoid them altogether.
First, undertake an immediate comprehensive review of your facility
compliance status; it is possible that the inspector overlooked or did
not evaluate certain aspects of your operations. Even as this review is
in progress, take immediate action to correct identified violations and
deficiencies as quickly as you can. Document the steps that have been
taken in as many forms as you can (e.g., completed repair orders or
invoices, equipment purchase orders or invoices, photographs, etc.) for
presentation to the regulatory agency.
Second, after the immediate response steps are completed, consider and
identify the management limitations that led to the violations (e.g.,
lack of planning or environmental review of plans, lack of clarity
regarding management responsibility, training deficiencies, etc.) and
correct them. For example, it may be helpful, if you don’t already have
them, to prepare simple standard operating procedures for environmental
tasks and include them with the corrective action documentation.
Finally, even if you are not offered the opportunity, request a meeting
with the regulatory agency, preferably the individual that completed the
inspection, as soon as you can complete the actions (best done within
two to three weeks after receiving the inspection report or notice of
enforcement action). During this meeting, it will be important to keep
as proactive a focus as you can, i.e., identify changes in the way your
operations will be managed going forward. Also, note that, should your
comprehensive compliance review identify other violations, it will be
important to consult with a knowledgeable legal advisor as to whether,
how, and when to self report them.
John A. Gilbert, P.E.
jagilbert@geoinc.com
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