By Doug Parker
EPA recently came out with its long-awaited Strategic Civil – Criminal Enforcement Policy, written by David Uhlmann, the Assistant Administrator at the agency who leads enforcement and a former colleague of mine. This could easily fall into the “just one more policy” from EPA category, as the agency issues many. But if you are in an EHS compliance, risk, or legal role at a company or advising one on these issues, this new policy is worth paying attention to.
Before co-founding Ecolumix, I was the senior executive leading EPA’s Criminal Investigation Division, overseeing all environmental crimes investigations nationwide. In that role, I worked hand in hand with my civil counterparts setting enforcement policy and with the Department of Justice on prosecuting environmental and worker safety cases. While some of the new strategic enforcement policy elements look familiar from my time at the agency, a few critical areas are worth focusing on.
At its core, the new policy strengthens the coordination between the civil and criminal programs. It formalizes case screening and tracking processes and is designed to lead to better decisions about when to apply each enforcement tool. The policy also aims to ensure that enforcement decisions reflect the agency’s top priorities.
Understanding EHS Data, Evaluating Performance
Understanding EPA’s new approach is critical to ensure companies allocate compliance resources appropriately and avoid enforcement scrutiny. So, what should a director of EHS, counsel, or chief compliance officer focus on in this new policy?
First, ask how well you understand your company’s EHS performance, including at the facility level. Understanding your own EHS data is critical. This goes beyond compliance data and includes emissions, discharges, spills and releases, and worker safety information. Furthermore, if a company falls short in worker safety performance and its environmental record, regulators will take notice. The agency evaluates all these factors when deciding whether to investigate a company civilly or criminally.
Second, make sure you understand how your company stacks up to its peers when it comes to EHS compliance. The agency often takes a sector-by-sector approach when making its enforcement decisions. If a company is performing well below its competitors, it is a potential target.
Five Key Questions
At the end of its new policy, EPA posits five key questions. If you put these questions in the context of your own operations, you can see where you stand and what your risks may be.
- How significant are the violations? It starts with knowing your own EHS performance down to each violation. If you have exceedances, how significant are they? What types of pollutants may have been released during a spill, and was a community with environmental justice concerns impacted?
- What type of culpability is involved? Was the violation an inadvertent omission or mistake, a series of repetitive violations, or was there actual intent to commit a violation?
- What is the compliance history for the alleged violator(s)? How has the company performed at every facility over the past five years? Can your company quickly assess its performance against industry peers with accurate data to measure risk?
- How would you characterize the sophistication and company size of the alleged violator(s)? Regulators will always evaluate a company’s size and its level of sophistication when making enforcement decisions. The larger the company is, the greater the expectations the government will have for that company’s operations. And is the EHS program resourced adequately?
- Does the matter involve a regional or national strategic priority for EPA? Understand what the agency’s priorities are and where you fall into them.
Closing Thoughts
Companies that want to be well positioned for this new policy must first understand their performance, where it may need to improve, and how it stacks up against competitors.
Ecolumix has the data companies need to measure performance, improve outcomes, and minimize risk. If you’d like to learn more, or simply get my take on where EPA is headed, I’m happy to speak with you. You can schedule a call here.