NLA REVIEW	ENVIRONMENTAL LAW	Spring 1997

NLA's Environmental Law Section is moving forward toward providing environmental practitioners, as well as practitioners in other areas of law affected by environmental issues, a network of experienced attorneys and easy access to legal references. As to the latter, federal case law, the Federal Register, and federal statutes and regulations are available from anumber of Internet sources. Additionally, many states and the U.S. EPA have incorporated these resources into their highly developed web pages, from which virtually any state statute and regulation can be accessed.

In the near future, proposed regulations, policies, guidance documents, and directives will become available. The following web pages demonstrate the scope of information available: U.S. EPA can be accessed through http://www.epa.gov/. To access a particular state agency, try a general state agency database such as http://www.clay.net/statag.html which will lead you to your destination.

These resources come at an opportune time. Among other things, U.S. EPA recently indicated that enforcement will be a central focus in 1997. U.S. EPA expects states to increase their enforcement activities as well.

EPA's enforcement initiative will hinge on the compliance inspector who will be briefed on numerous EPA-targeted compliance areas. Compliance with the myriad of hazardous waste management requirements will be a typical focus. Thus, companies must ensure that waste evaluation has been conducted, satellite accumulation and waste storage activities and inspections conform to federal and state requirements, emergency planning and contingency plans are complete, personnel training and training records are in place, and hazardous waste manifesting and reporting is accurate.

Equally as important, EPA has also expressed interest in some seemingly obscure areas of environmental compliance such as underground injection control ("UIC") wells. While UIC would appear to be used only in specialized industrial activities, many small facilities often have several Class V UlCs serving to collect and drain stormwater from the facility roof and parking areas. Of course, the stormwater can collect oils from the parking lots andsubstances used at the facility and conveyed into the UIC, soils and groundwater.

Additionally, the agency has become very "picky" on certain written plan requirements. For example, the Oil Pollution Prevention Regulations require many facilities to prepare a Spill Prevention Control and Countermeasures Plan ("SPCC Plan") to protect against oil spills to local streams. Written SPCC Plan elements must appear in a specified sequence. See 40 CFR 112.7. U.S. EPA has actually taken administrative action in California and New York for, among other things, failure to prepare the SPCC Plan in the required sequence!

The agency has also interpreted the term "oil", which is already broadly defined as "oil of any kind" including vegetable, animal, or petroleum, to also include non-oil liquids that contain small amounts of oil. Specifically, Region V considers "one drop" of oil in a liquid to be an oil. Region IV has opined that a liquid is considered "oil" if a spill would result in a sheen on a waterway.

To protect the client against these and many other highly specific enforcement initiatives and agency interpretations, we must know and understand the client's business and its often intricate processes. Only then can we attempt to verify that each activity is in complete compliance with each applicable environmental law and regulation.

State agencies have recognized the many benefits that result when companies comply with environmental requirements. Thus, over the past eighteen months about twenty states have passed self-evaluative privilege laws to encourage companies to conduct environmental audits and to protect against discovery requests any noncompliance findings. Moreover, while the laws typically require disclosure of certain noncompliance findings to the state, the trend under these laws has been that the state will waive penalties in exchange for a swift return to compliance. Of course, these laws often require strict adherence to confidentiality labeling formats and adherence to substantial procedural constraints.

While the state self-evaluative privilege laws appear promising for those desiring to inspect their operations, caution must be exercised. U.S. EPA does not appreciate the self-evaluative privilege as is evidenced by its reluctance to include such a privilege in its environmental audit policy. Moreover, U.S. EPA recently rejected two state applications for authority to manage Title V programs because the states had enacted self-evaluative privilege laws. Other states have had similar experiences. Additionally, at least one citizen's group has asked U.S. EPA to intervene against a company located in a state that has a state self-evaluative privilege law, under which the company has not provided an environmental audit report to the group.

Thus, while there are many reasons why companies should conduct environmental audits, the attorney should become involved to ensure the best confidentiality protection possible for the audit report. Combining a state self-evaluative privilege with the attorney-client privilege should be a benefit. If the company uses an independent auditor, which provides additional benefits for the company, it should search for an attorney who is also an environmental engineer/scientist. Attorneys who are also experienced environmental engineers can provide a much more informative audit for the client which will include not only a compliance review, but also thorough consideration of U.S. EPA, state and local policy, guidance, and directive documents, as well as an assessment of analogous situations in which administrative actions were heard, and the potential risk of for citizen suits. Importantly, attorney auditors avail the company of the attorney work product doctrine which could add additional confidentiality protection to the product. In any event, the information gathered in an environmental audit can aid the client toward putting the environmental house in its best possible order before the agency inspector comes knocking at the door.

If you would like to join NLA's Environmental Law Section or need the advice of any of its member attorneys, please contact Ted Schneider at (513) 977-8415.

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