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SPRING/FALL 2006

AGENCIES STEPPING UP ENVIRONMENTAL ENFORCEMENT

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

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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 enforcement 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

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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.

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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.