Published in the Union Leader (9/27/2020)
Q: My business recently discovered that it has violated environmental laws that it did not know applied to its operations. What does this mean, and what steps should my business take to achieve compliance and address the non-compliance?
A: Modern environmental law, in the general sense, applies to a very large number of chemicals and materials, when they are used in or discarded by a wide range of governmental, industrial and commercial operations and consumer transactions.
Environmental regulation is a particularly complicated area of the law and thus, unsurprisingly, businesses can be surprised to learn the nature and extent of the application of such state and federal laws to their activities and operations. Therefore, businesses modifying or expanding operations will certainly want to also understand the environmental implications of their planned development.
For example, adding equipment that results in an increase in the quality or quantity of air emissions or waste water discharges from a facility may well trigger more onerous and expensive permitting and compliance requirements. Even innocent, unknowing violations of such requirements can result in the imposition of significant fines and penalties. Continuing noncompliance with environmental regulation, operating for a period of time without a necessary permit, can result in more significant civil or even criminal penalties.
Effective utilization of a routine environment audit program allows businesses to assess their compliance status, discover any violations and correct them promptly, thus avoiding potentially much more serious consequences. Use of such self-audits also provides businesses the opportunity to avail themselves of state and federal policies intended to incentivize self-reporting of violations of environmental laws. The incentive provided by these policies is potential significant mitigation of the penalties for noncompliance if businesses strictly adhere to the policy requirements.
Under both state and federal law, businesses that follow the steps to identify and properly self-report environmental violations can receive significant, and in certain cases, complete reductions in penalties or fines from what could otherwise be assessed. In general, identifying and self-reporting environmental violations can offer significant advantages to businesses; however, care must be taken when determining how and when to self-report to ensure that necessary steps are followed and strict deadlines are met. It is necessary to have a well-developed program for compliance management, auditing and related record retention and management procedures.
State and federal regulators will consider a business’ compliance history when assessing penalties and have discretion in enforcement for companies especially those with no prior violations on their records. Given the complexities of evolving environmental law today, achieving and maintaining compliance may require the services of environmental consultants and legal counsel with experience in environmental law.
Viggo Fish can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.