Have you Googled yourself lately?
You might find race results from an old turkey trot or an article about an awards ceremony, or you might find unflattering (or compromising) photos of yourself – particularly if you went to college in the age of digital cameras on cell phones.
But how often have you Googled your business or industrial facility to see what the web reveals about your environmental compliance history?
With the continued emergence of technology and the federal government’s push for greater transparency, most of the environmental compliance documentation maintained by the Environmental Protection Agency (“EPA”) is now available on the web.
EPA’s Enforcement and Compliance History Online or “ECHO” database curates and correlates several different federal reporting regimes and federal environmental compliance data for individual industrial facilities in one place. [http://echo.epa.gov/]
The database includes filings under RCRA, the Clean Air Act, and the Clean Water Act, as well as data from the Toxics Release Inventory and Greenhouse Gas Reporting Program, among several others. In addition to stating a facility’s compliance history, including required periodic reports and disclosures, the ECHO website also includes information on inspections and enforcement actions conducted by EPA.
All of this information is easily available to the general public with a simple search. The data can be accessed by company or facility name, but it is also searchable by state, city or ZIP Code. This capability makes it easy for individuals to learn about facilities in their neighborhood, or perhaps to allow competitors to find out information about a rival’s compliance history.
Another significant use for this database is by groups seeking to bring citizen suit enforcement actions against industrial actors. For example, in the Clean Water Act arena, the Conservation Law Foundation (“CLF”) and Clean Water Action, have both been very active in bringing citizen suits under the Clean Water Act against industrial facilities that either failed to file under the multi-sector general permit (“MSGP”) for discharges to waters of the United States, or facilities that have permits, but have not met their reporting obligations, or their obligations to undertake corrective actions.
Simply using the information available through the ECHO database CLF, Clean Water Action, and others can identify industrial facilities that should have permits under the National Pollution Discharge Elimination System (“NPDES”) program. Using the ECHO search tools, the citizen suit organizations can quickly find the reporting history for any industrial facility that holds a NPDES permit. This is particularly relevant in Massachusetts and New Hampshire where EPA is the NPDES permitting authority.
Just letting their fingers do the walking from their desktop computer, the environmental organizations can assess whether a facility has filed the requisite number of quarterly reports, complied with its annual reporting obligations, and even assess whether or not the facility has exceedances of benchmark monitoring values.
As an illustration, here are the ECHO search results for industrial facilities in Newburyport, MA. A user can click on each orange marker and learn about the business’s compliance and enforcement history. Since many of these facilities may have discharges that lead to waters of the United States, environmental organizations searching for Clean Water Act compliance might be particularly interested in canvassing this area for compliance targets.
After a quick assessment of the compliance history available from ECHO, it is easy for the environmental organization to prepare a 60-day notice letter and initiate the process of bringing a suit under the Clean Water Act. Once that process is started, the environmental organization will stand in the shoes of the federal regulator and impose a financial penalty on the facility for failure to comply with the requirements of the MSGP. In most instances, the environmental organization will also demand operational or structural changes to eliminate or reduce pollutants in a facility’s discharges, and require Supplemental Environmental Projects (“SEP”) related to the impacted water-body to offset impacts to the environment. In addition, under the federal Clean Water Act, the environmental organizations are entitled to recover their attorneys’ fees and legal costs for bringing these private enforcement actions. All of these components result in significant financial burdens on the target facilities.
With the new MSGP permit promulgated by EPA earlier this year, industrial facilities in MA and NH have even greater obligations to provide transparency for their compliance with the Clean Water Act. The 2015 MSGP requires facilities to either post the contents of their stormwater pollution prevention plan (“SWPPP”) on the web, or include the contents of the SWPPP in the facility’s Notice of Intent for coverage under the 2015 MSGP. The 2015 MSGP also requires online reporting of quarterly and annual monitoring events. With the transition to all online reporting, all of a facility’s Clean Water Act reporting obligations will be available with the click of a mouse.
The 2015 MSGP set September 2, 2015 as a deadline for facilities with existing MSGP permit to file a new Notice of Intent for coverage under the new general permit. For facilities with an existing MSGP permit, this is an easy target for citizen groups seeking to make a quick strike. We are aware of two actions against industrial facilities simply for failing to meet the September 2, 2015 deadline for filing a new Notice of Intent under the 2015 MSGP. Similarly, even though facilities may have met the benchmarking requirement of four consecutive quarters without any exceedance under the old 2008 MSGP, which allows the facility to transition to annual rather than quarterly monitoring, the new permit re-starts the clock and facilities must show a minimum of four consecutive quarters of monitoring data to demonstrate compliance with the benchmark values for the particular facility before shifting to annual reporting.
While the general availability of all this data sounds alarm bells about the tidal wave of compliance information on the web and the increased potential for citizen suit actions, there are also some business advantages that web-savvy companies can reap from this wealth of data.
For example, companies looking to make an acquisition can use the ECHO database to perform quick due diligence on an industrial facility before any formal deal negotiations take place. A review of the ECHO database will allow a potential acquirer to identify good targets, or to recognize a facility to avoid, given their compliance history.
Similarly, companies in the certain industries can use the information available through ECHO to evaluate the compliance history of the facilities receiving their outputs as part of their due diligence obligations to establish defenses under the Superfund Recycling Equity Act (“SREA”). Armed with a potential receiving facility’s compliance history under Federal environmental laws, an arranger can make an informed choice about whether or not to sell scrap products to a particular customer. Generators of solid and hazardous wastes can also check the compliance status of handling and disposal facilities, perhaps avoiding the cost of a full facility audit or the liability that would arise from shipments to a non-compliant facility.
Lastly, the ECHO database can also serve as a public relations tool. Since this compliance data is available to the general public, industrial facilities should be aware of the potential public relations burden and benefit these disclosures can provide.
In addition to the importance of maintaining strong environmental controls, we recommend that industrial facilities monitor how their business information is presented in the ECHO database. Proper management could lead to new opportunities and positive public relations, while lax attention to monitoring and reporting obligations could invite citizen suits to environmental organizations trawling the ECHO database for new victims.