Other Directives and Corporate Policy

Beyond the federal state and local regulations, there may be other directives or corporate policies that set forth requirements or otherwise influence a facility’s environmental compliance programs and strategies. As an example, the NEPA regulations discussed earlier in the chapter require that federal departments and agencies develop procedures describing how the agency will implement the requirements established under NEPA for evaluating environmental impacts. These agency-level procedures define the set of requirements that apply to organizations within that specific agency. In other words, the procedural requirements for evaluating environmental impacts for projects proposed by the Department of Energy are different than those for the Bureau of Land Management. While both agencies are required to meet the requirements of NEPA, their implementation strategies and associated internal procedural requirements and directives are agency-specific. This can often be the case for federal facilities where federal agencies are commonly required to develop agency-specific procedures and directives that describe how organizations within the agency will meet the applicable regulatory requirements. These agency-specific procedures and directives often stipulate additional requirements such as establishing performance metrics, internal agency reporting, record-keeping, training and qualification.

In a similar fashion, corporations often utilize corporate procedures and/or policies as a means for implementing environmental regulatory and compliance programs within the corporation. Corporate directives are often used to implement programs within the organization for the purpose of minimizing hazardous chemical use, reducing waste, assessing compliance, tracking and correcting deficiencies and other activities focused on enhancing environmental performance, cost-effectiveness and the corporate reputation. Corporate policies and other directives are usually well communicated within the organization and do not pose the same challenges of determining applicability that can be associated with federal, state and local environmental regulations. However, requirements from corporate policies and/or agency directives are important elements requiring consideration and integration into a successful and sustainable compliance strategy.

Establishing and Documenting Applicability

Establishing regulatory applicability can be accomplished through a variety of means. A viable approach involves several factors, including facility assessments to evaluate regulatory applicability and compliance, researching regulations, utilizing tools available from regulatory agency websites, actively engaging with regulatory agencies, baselining your activities with other facilities conducting similar activities and attending regulatory training classes and seminars. Many companies will use the services of an environmental consultant to conduct an assessment of their facility to assist in determining regulatory applicability. This approach is often beneficial and more cost-effective for companies that do not have in-house regulatory expertise. Companies that do have in-house environmental staff can conduct these assessments utilizing personnel with regulatory experience and subject matter knowledge. Regulatory applicability can and should be verified with regulatory agencies when it involves areas of the regulations that are interpretive and especially those that could place the company or facility in a situation leading to regulatory enforcement. This becomes an important aspect of the active engagement and developing regulatory relationships as discussed above.

It is important that personnel responsible for facility compliance fully understand the operations and activities occurring at the facility and which aspect of the operations are regulated and the reason they are regulated. Facilities that utilize an outside consultant to perform these assessments and make regulatory determinations should ensure that facility representatives participate in these assessments whenever possible. Facilities should require that the consultant provide a detailed description of their assessment findings to include the operations/activities that are regulated, which regulations apply, a discussion on why the regulations are applicable, the appropriate regulatory agency, any limitations of the assessment and any information relevant to implementing and maintaining compliance. This level of documentation is necessary to not only determine regulatory applicability and current compliance status but also in developing a strategy for sustaining environmental compliance in the future.

Facilities that have in-house environmental staff with regulatory expertise can not only utilize these staff members to assess operations and make regulatory determinations but they can also develop or participate in the development of regulatory applicability documentation. Regulatory applicability documentation should include the same information as identified above, including applicable regulations, specific operations/activities that are regulated, the reason specific operations are regulated and the regulatory agency point of contact. Again, documenting this level of detail will be beneficial in developing a compliance strategy as it will serve as a baseline document of applicable requirements that can be updated as operational activities change and will be instrumental in communicating and flowing down requirements within the organization.

Regulatory applicability determinations should be reassessed on a periodic basis to ensure they are still valid. There are numerous factors that could influence the frequency of these reassessments, including the complexity of operational activities, frequency of operational changes and new or revised regulatory requirements. Documentation of regulatory applicability should be managed and maintained as a company record. Because this documentation will serve as a focal aspect of a successful compliance program, it is important to ensure that the documentation is accessible, reproducible and that there is a mechanism for version control so that it is clear which version is current and when older versions were applicable. This does not necessarily have to be a complicated process and in most cases is as simple as identifying the documentation as a company record to be managed following established company records management procedures. Later chapters of this book will provide discussions relative to developing processes for using the information documented in regulatory applicability determinations to communicate and flow down requirements within the organization.