Do environmental compliance problems happen overnight?
Perhaps, but problems with environmental compliance are more often the result of incremental changes that accumulate over time.
If there’s one thing we’ve learned from working to untangle environmental compliance problems, it’s that these problems tend to grow in size and in complexity the longer they’re ignored.
Sometimes a problem can be as simple as submitting a report one day late and in others, it can be a series of many small problems that accumulate over time. In more complicated cases, environmental compliance problems can be covered up for years, only to finally be discovered after audits and inspections.
In any case, we’d like to share what we know about how environmental compliance problems start and we’ve assembled this list from years of working with regulated entities and solving their environmental compliance problems.
If you understand how the following 19 common problems can occur, you’ll be better prepared to avoid them.
1. Miscommunication between departments with respect to environmental requirements
Environmental regulations can span an entire organization.
Changes to a process as well as the installation and commissioning of a new piece of equipment will often require a permit prior to the project starting.
Sometimes the environmental department may need to determine if the addition of a process or piece of equipment will trigger extra monitoring, reporting or record-keeping requirements.
In order to avoid environmental compliance problems with new regulatory requirements, decisions about facility operations should not be made without including the environmental department.
2. Not following all of the requirements of a specific rule
As a regulated entity, you’re required by state, federal and local law to follow all of the rule requirements of the various regulatory agencies.
In order to best follow the rules in their entirety, it helps to fully understand each one. In addition, you should try to retain documentation that demonstrates how you’re meeting the requirements.
If you encounter a situation where you cannot meet a rule requirement, you may need to file for a variance or get relief from a potential enforcement action.
3. Not conducting internal audits
Conducting internal audits is an excellent way to find problems with your environmental program.
Environmental compliance programs are large and multifaceted, with many moving parts and many potential weak links, which is why it’s best to develop a procedure and schedule for internal auditing.
4. Not properly maintaining equipment
It’s hard to comply with a rule if a piece of equipment always breaks down which causes you to deviate from the requirements of a rule.
Therefore, it’s best to perform maintenance on all of your equipment, especially permitted equipment, at frequencies recommended by the manufacturer.
Be sure to keep records of the maintenance and keep the original equipment manufacturers manual on hand to show that you’re maintaining the equipment according to the specifications of the manufacturer.
5. Unaware of changes to a specific rule
Environmental rules frequently change, and subsequently, the requirements of that rule also change. In addition, a work practice that was previously allowed might be prohibited once a rule changes.
Whatever the case, environmental compliance problems tend to start when a rule is changed and a work practice that was previously allowed becomes prohibited.
It’s important to know when the rules that apply to your facility are amended so that you don’t run into problems with their requirements.
To know how a proposed rule will impact your facility, be an active member in the rule-making process, which is a public process.
For the South Coast Air Quality Management District (SCAQMD), a list of all of the proposed rules is on their website.
6. Not submitting compliance reports on time or at all
Environmental compliance reports involve what we call “the compliance trifecta” of monitoring, reporting and recordkeeping.
Required compliance reports, no matter how small or insignificant they may seem, must be submitted if they’re required, and they must be submitted on time.
With everything that needs to occur to keep your business going, it can be easy to lose track of the due dates for compliance reports.
Luckily, most are due around the same time each year, so it’s easiest to create a calendar to help you keep track of what reports are due and when.
7. Loss of institutional knowledge
When the staff members in your department move, get promoted or leave the company, you run the risk of noncompliance due to the loss of institutional knowledge.
For example, the loss of a staff member may result in permits not being renewed and compliance reports not being submitted.
In addition, existing environmental compliance problems that were being handled by a lost staff member may go unaddressed.
Whatever the case, plan for attrition within your department.
When a staff member vacates a post, be sure to have a general idea of what’s needed to keep the department moving forward.
As an example, understand what will be taking place over the next 60 days to stay in compliance (e.g., permit renewals, pending permit applications, fees, compliance issues, etc.).
If a lot of interaction occurs between your facility and the regulatory agency, it may be wise to let the agency know that your facility is going through a transition.
8. Poorly worded permit conditions
Regulations are black and white.
They tell you what you can and can’t do in order to comply with the requirements.
In our experience, however, environmental regulations can become tricky when they’re put into practice because you can end up managing areas that are in between those black or white areas – the grey.
Such “grey areas” make environmental compliance challenging because they can add to the risk of noncompliance.
Permit conditions that are poorly worded can lead to grey areas and should therefore be revised to avoid the grey areas.
To better manage the grey areas, it’s best to review all of your permit conditions through the lens of an inspector.
That means if the condition isn’t clear or needs interpretation, the condition probably needs to be revised. Sometimes it’s best to clearly define within a permit condition the particular instances when the condition applies and when it doesn’t.
9. Inappropriate permit conditions
In many cases, we’ve seen inappropriate permit conditions end up on the face of a permit. Such conditions are problematic because as a permit holder, you’re almost always required to follow the conditions that are on the face of your permit.
In addition, sometimes the inappropriate condition is impossible to comply with.
Two examples we’ve seen include requiring compliance plans for regulations that don’t apply to the facility and requiring source testing on a frequency that’s more than what’s required for a specific regulation.
When you receive your permit from a regulatory agency, it’s best to review the draft permit prior to the issuance of the official permit, or review the official permit as soon as possible.
In certain cases, a regulatory agency will allow a facility to comment and make changes to a permit within a certain time period.
10. Not having proper permits
The operation of a process or piece of equipment will often need a permit from a regulatory agency (like an air permit) prior to the process starting or the equipment being delivered to the facility.
We’ve seen problems occur because a permit was not applied for prior to either scenario, which is why it’s best to review all of the permitting requirements prior to purchasing any piece of equipment, constructing a piece of equipment or modifying any new process.
11. Community complaints
It’s important to know that the community around your operation can submit complaints to your regulatory agency if they feel that you’re not operating in compliance with the rules. These complaints often start as nuisance issues such as odors, visible emissions, etc.
Be sure that you’re operating your facility in a way that doesn’t impact the surrounding community. Be mindful of odors, visible emissions, fenceline emissions or even the appearance of what may appear to be noncompliance.
12. Arguing with a regulatory agency
While it’s okay to disagree with your inspector or the decision of a regulatory agency, it’s best to maintain professionalism and not start arguing with or belittling your inspector. Such antics can easily lead to problems.
13. Assume liability of another company with compliance problems during an M/A transaction
It’s possible to inherit compliance problems when you merge with or acquire another company, at which time the problems of the old company become the problems of the new company.
Before completing an M/A deal, be sure to conduct a thorough review of the facility to find any existing problems. (The lawyers can tell you more about this).
14. Operating with expired permits
Operating with an expired permit is often the same as operating without one at all. Almost all permits have an expiration date, and it’s important to know those dates.
Sometimes permits expire annually while others may expire after several years (i.e., 5 years).
To minimize the risk for problems, it’s best to track the expiration dates of all of your permits and keep a timeline of when permit renewal applications need to be submitted.
15. Disgruntled employees disclosing compliance issues to the regulatory agency
We’ve seen cases where a disgruntled employee leaves or gets terminated from a company and then reports the company’s environmental violations to a regulatory agency.
Depending on the types of compliance issues you have, be sure that information is shared only with those who need to know it in order to properly do their jobs.
16. Not addressing small problems as soon as possible
As we previously mentioned, environmental issues grow in size and complexity the longer they are left unaddressed, and the growth can be exponential.
When problems arise that can negatively affect your environmental compliance, fix them as soon as possible, no matter how small they may seem.
It will not only help you maintain compliance, but it can help if you later have to explain yourself to the regulatory agency if you receive a notice of violation.
17. Process changes without proper environmental review
An air permit will be issued for a specific process and will also include a specific way to operate the given process.
Compliance problems can arise if changes to the process are made without the proper environmental review.
For example, changing a process temperature could result in an emissions increase, or re-routing a process line could end up bypassing a vital piece of control equipment.
These types of problems can be avoided by getting input from your environmental department before buying equipment or beginning construction.
18. Not paying annual fees for permits or other items
While each regulatory agency is different, most have annual fees that must be paid. Examples of these include annual permit renewals for the annual emission reports, hazard waste reports and annual permit renewal fees.
In certain cases, if a fee is not paid, the facility’s permits could be voided. Similar to permit renewals, develop a system to know what fees are due to what agency and by what date.
19. Not responding to the requests of a regulatory agency in a timely manner
If the agency requests data, you should always respond in a timely manner. In certain cases, if the agency doesn’t receive the requested data, an inspector can sometimes issue a notice to comply (NTC), and if the information is still not provided, the NTC will turn it into a notice of violation (NOV).
It’s best to maintain open communication between your company and the agency, so try to develop a system so folks know the timeframe to respond to the agency.
It can be hard to predict when an environmental compliance problem will start
Like we mentioned, compliance problems can begin overnight or over a period of years, and sometimes it can be difficult to predict when they will manifest.
Remembering these 19 common ways that compliance problems start can help you avoid them.
Do you have colleagues who would enjoy this article?
If so, please share it with them to help them avoid environmental compliance problems with their program.
They’ll be glad that you did.
Also, if you need to deal with California’s air quality regulations but can’t wrap your head around all of the details, sign up for our email newsletter.
We’ll send you practical tips and strategies to help you make sense of the regulations so that you can free up time in your schedule.
Image Credit: Maze (Dreamstime)
Do you see a typo or anything that is incorrect? Please contact us and we’ll get it fixed.