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Sunday, Oct 1, 2023

LIABILITY–Reasons to Evaluate Environmental Compliance Programs

When one of your employees sues your company for wrongful termination, you call your attorney to handle the situation.

Far too often, however, your labor lawyer starts looking into the complaint by the employee only to realize your company has some other pressing legal issues it needs to address. These issues are often in the area of environmental compliance.

The law in the environmental field is broader than most people realize.

Environmental laws permeate the rules about how you train your employees, how you label usable goods at your business, where safety signs are located, how you dispose of your wastes and how your machinery works. It even dictates the type of exhaust systems at your business.

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These environmental laws are just some examples of how your business could be affected.

What follows are more examples of areas in which you may be deficient in compliance with environmental laws. If your business produces hazardous waste, California requires you to submit a waste minimization plan and biennial reports to the Department of Toxic and Substance Control.

The waste minimization plans were due in September 1999. Many businesses in California were either unaware of this requirement, or not clear how to complete this requirement. This is a prime example of why your business should evaluate its environmental compliance program regularly.

There are both California and federal rules that mandate how you label usable hazardous substances at your business and wastes your business generates.

Are your usable hazardous substances stored next to hazardous wastes? Are your employees performing weekly inspections of your hazardous waste containers? Are the wastes being stored for more than 90 days? Is your business emitting chemical fumes that require an air permit? How has your business tracked the wastes picked up by the transporter? When was the last time you trained your employees? What do you know about storm water management?

You should begin asking these questions well before your disgruntled employee calls the Department of Environmental Health or the Department of Toxic and Substance Control and files a complaint, and they will. Spending the time and expense before you have a regulator questioning your business practices can save you thousands in legal fees.

You should carefully track and plan your environmental compliance efforts so as to avoid any enforcement order. California and many other states pursue hefty civil penalties and are not afraid to criminally charge employees, officers and directors for environmental crimes.

So, how do you begin this environmental compliance crusade? Ask yourself whether you have discussed environmental compliance with your attorney.

Do you have an employee in charge of environmental compliance? What training has that person received? When? Is that a full-time or collateral duty for that employee? Have you ever had a full environmental audit to assess your environmental compliance?

If you are not sure of the answers to any one of these questions, you need to find out the answers. You should speak with your attorney about an environmental audit. If done properly, under the supervision of your attorney, the environmental audit may be considered privileged and kept out of the hands of the regulators. This law encourages you to take a close look at your environmental compliance program and correct problems.

Schneeweiss is a member of the environmental practice group in the San Diego office of Luce, Forward, Hamilton & Scripps LLP.


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