Learn how to protect your company, facility, or operation from a 3rd party environmental group's lawsuit.
Ever since the great financial disaster of the late 2000s, everyone's been crying 'budget cuts'. Private sector, public sector, it doesn't matter, everyone is looking at every dollar, for right or wrong, under a microscope anymore. No matter how you spin it, money isn't being allocated like it used to be.
This is a double-edged sword and a constant issue for a lot of people we talk with. We've found that because of decreased budgets, environmental compliance has taken a backseat to more profitable ventures and expenditures at their operations. Simply put, folks are finding it harder to stay in compliance, due to things like lack of qualified personnel, lack of financial commitment for site upkeep, and lack of time to adequately address environmental issues.
Fortunately, this hasn't (traditionally) been a huge issue, because when everyone's budget got cut, a lot of various regulatory agencies budgets were cut as well. That means less folks enforcing regulations, less field work, and less chances of an impromptu inspection of your operation.
The problem is, because of some increased attention on regulations and their level of enforcement in this country, a "3rd parties" are taking advantage of the opportunities these regulations present to make sure these environmental regulations are being rigorously enforced. They're suing companies of all shapes and sizes. They walk away with a load of cash, you're forced to get your facility in complete environmental compliance with the applicable law, and they often retain the ability to spot check your compliance levels at any time going forward.
That "3rd party" is usually some form of environmental group, and they're not holding back.
3rd Party Groups - Know Your Threat
For many, many years, permit holders have rightfully assumed that their biggest "threat" in terms of enforcement action was a regulatory agency. Either the USEPA, their state environmental agency like a DEP or DEQ, a local county regulator, of if they were located in a metropolitan area, a city regulatory agent.
Due to a multitude of reasons, this probably isn’t the case anymore. Yes, these folks are still the ones in charge of enforcing regulations, but because they're all blaming their lack of enforcement abilities on budget cuts, they might just be the least of your worries.
Here's where it gets interesting. Most major environmental regulations have provisions included in them for lawsuits to be filed by 3rd party groups. Meaning, any 3rd party group can sue you if you're not complying with regulations. I've read reports of lawsuits from all types of environmental groups, not just crazy tree-huggers.
I've read of lawsuits from hunting & fishing clubs, wildlife groups, various community organizations, powerful attorney-backed environmental groups, clubs, associations, etc. The list goes on and on.
Any and all 3rd party group can sue you. It could be the Girl Scouts! It could be one single person. Any outside entity who may think you're not following the rules & regulations applicable to your operation can sue you (technically, there are some requirements for who can sue, but they don't seem to be holding these groups back).
And they're not suing for a couple hundred or thousand bucks. There's potential penalties in the 5, 6, and 7 figure range. Imagine getting a Notice of Intent to Sue that could cost your business a half a million dollars or more. I'd probably have a heart attack on the spot.
Why are 3rd party environmental groups doing this?
I've heard numerous times from folks in various agencies they don't have the funds or manpower to get out and really enforce regulations anymore. I don't know if that's really the case or it's BS, but regardless, regulatory enforcement doesn't seem to be what it used to be.
Especially considering it's never been easier to access public records (like your permits, approvals and monitoring data) and find out who's doing what (cough, cough, USEPA's Echo Database), you would think more folks would be feeling the sting from enforcement, but right now, they're not. So, 3rd party groups are stepping up and saying, we'll do the enforcement using our given lawsuit capabilities.
They're often using the internet to find out what you should be doing, they're using public records to determine if you're in compliance, and they might be a lot smarter, faster, and savvier than regulators. In short, they're getting the job done quickly and efficiently, and businesses are starting to feel the squeeze.
I can't say the position of these groups is unwarranted. I spend a lot of time outdoors. I live in New Jersey, a highly industrial, and very populated state. I want to be able to go to the lakes, take a hike, or go for a surf without wondering what the water quality is like, or what air quality is like that day. These groups, for right or wrong, are making sure people are just following the law. They're not suing you for not using electric cars or a plant-based grease or for not becoming sustainable.
It's like if the PTA could set up a speed trap in front of the local school because the police weren't enforcing the speed limit. They're not stopping you because they don't like you, they're stopping you because you're breaking the law.
The other thing to take into consideration is that these groups don’t typically play by the same rules that government agencies do. Historically, some agencies might be more willing to look the other way, or at least be somewhat “business friendly” and cut you some slack. That's not always the case, but from what I've seen, heard and read, 3rd party groups usually want you to follow the letter of the law to a T.
And don't think you're alone. There are numerous instances of the government agencies themselves becoming the victim of these 3rd party lawsuits, for allegedly not enforcing or appropriately implementing the environmental regulations they’re charged with administering under Federal law.
Imagine if the PTA was stopping speeding traffic in front of a local school because the police weren't enforcing speed limits. Now imagine the PTA also sued the police department. That's sort of how these 3rd party groups are functioning.
Common 3rd Party Environmental Group Lawsuits
From what I've been seeing, reading, and hearing, these groups are following a fairly similar strategy across the country. They're more or less looking into the same areas of non-compliance, which are:
Clean Water Act Enforcement
Many of these groups are centered around water quality issues. So, they're naturally going after NPDES permit issues, particularly NPDES stormwater discharge issues. Since so many facilities have NPDES stormwater permits, and so many of them have problems, it's easy pickings.
Clear Air Act Enforcement
Same as the CWA above. They're targeting folks who have air permits because the data's out there, and it's easy to figure out who should be doing what, and complying with what law.
TRI Reporting & Tier II Community Right-to-Know Enforcement
Both of these regulations are ripe for enforcement, and 3rd party groups know so. They're using industry averages and looking into various industrial operations across the country. This is becoming a hot topic, especially in the wake of things like the Flint, MI water crisis. People are looking into hazardous materials & chemicals, and they want to know where they're coming from. Even that British guy on HBO the other week was talking about where things like lead are coming from in our environment.
Tier II Reporting & TRI Reporting enforcement is only going to get worse as times goes on.
Resource Conservation and Recovery Act Enforcement
Mostly groups are looking into waste issues, including the disposal of solid and hazardous waste. Again, as folks focus on where hazardous chemicals and materials are coming from, RCRA enforcement is going to be the next logical step for these groups.
My legal team can handle any 3rd party group.
Good luck. I hear folks say who cares if I'm sued, I've got a legal team! Trust me, you don't want to go there. I've been involved in several 3rd party lawsuits, on the side of the facility being threatened with a lawsuit. You don't want to be in that position, ever.
To state the obvious, you don’t want to go there. Your company's time and money is far better spent elsewhere. Get your head out of the sand and wake up. You need to follow the law. It's no different than paying taxes or following traffic laws. You're supposed to follow the regulations, so save yourself the hefty lawyer fees and just follow the law.
And honestly, you're not going to court. You'll settle outside of court. You or your legal team will hire an environmental expert and they'll come in and go it's 2016, of course you're supposed to follow the rules & regulations. You're out of compliance. You're in the wrong. You won't have a leg to stand on if it does go to court.
Here's the big kicker that you're not thinking about. Once the lawsuits are over, these 3rd party groups often demand (and virtually always get by the way) the right to dictate how certain aspects of your operation is run.
You heard that right. When the dust settles, these groups will have a lot of power over your operation. You’ll be doing whatever the environmental group dictates.
They want operational changes? Chances are pretty good they'll get it.
They want a donation to their group? They'll definitely get it.
They want you to donate time, staff, or your product for a public works project or something else that will benefit the community? Yup, they'll get that.
They want the right to check into your operation at any time to ensure you're still in compliance? They'll get that too.
In short, you’ll be playing their game, and they’ll be holding all the cards. Your legal team can't help you.
How to protect yourself from a 3rd party environmental group's lawsuit.
Folks, this is a no-brainer. Be in compliance. Period, end of story. Just do it.
From our experience, these environmental groups are looking for the low-hanging fruit. Simple things, obvious things. The kind of problems that can be spotted by reviewing public records, such as your failure to take your samples, or do your reports, or meet your permit benchmarks or limits, or sample for everything you should be. It’s usually not rocket science.
And while you’re probably sitting there right how saying “good, I know we’re okay with that stuff”, are you? Do you have everything covered? Are you doing everything you need to?
Stop complaining. If your regulations are that awful, get in touch with your trade association or a politician or something. Don't ignore the rules because you're waiting for them to be enforced.
That's like saying you're not paying taxes until the IRS comes knocking. Have you ever talked to anyone from the IRS?? Those guys are brutal! The USEPA can also be pretty bad to deal with, and 3rd party groups are still worse than that!
Stop procrastinating, stop living in the 1960's, stop doing business like your grandfather did. Follow these steps and you should be alright.
Be in complete environmental compliance.
Don't half-ass it. Complete compliance. Close only counts in horseshoes and hand grenades. Don't think you're in compliance, know it.
Every law, every regulation, anything that applies to you on a federal, state, or county level needs to be addressed. All permits, approvals, plans, etc. that you should have, you need to have.
If you're in over your head, contact an expert, get an environmental audit done from an outside expert, talk to your trade association, do something! Don't let anything slip, slide, or be ignored.
Stay ahead of environmental regulations.
Yes, regulations can be tricky. Yes, they can be confusing. Get educated. Get trained on your permits, plans, approvals, and whatever else you need. If you need site modifications, personnel changes, training, equipment, outside help, or anything else that will help.
You need to make sure you understand and can handle this stuff. Don't just kinda get it, or sort of do it right. Stay ahead of regulations, and you'll be fine.
Don't be an idiot.
Don't do anything stupid. If you have a stormwater discharge, then only discharge stormwater. If you conduct TRI Reporting every year, don't miss a year. Don't forget any inspections or reports, don't neglect required training.
And most of all, keep your site clean. I've been to so many industrial facilities that look like hell. No wonder your neighbors / the town / regulators / 3rd party groups don't like you.
Ever heard the term looks can kill? That's true for your operation too. If your facility looks like a dump, then it's going to kill your chance of getting any sympathy from anyone.
Clean up, don't do dumb things, and you won't invite trouble.
You can be completely safe from 3rd party environmental group's lawsuits.
Look, I don’t want you to become the next victim of a lawsuit filed by a 3rd party citizen or environmental group. But it’s really not that difficult to avoid that lawsuit – just get it together, get into compliance, and do what you have to. And if you don’t know what that means, then get help. Now. Before someone knocks at your door with that Notice of Intent to Sue.
If you’re cynical, you’ll say that these 3rd party environmental lawsuits are only about money, and furthering the group’s agenda. Maybe that’s right, but what’s the agenda? A better environment? A higher level of compliance? Getting folks to follow the law? A level & equal playing field for businesses who are already in compliance? Are any of these really that bad?
We're on your side, and we're here to help. If you're worried about 3rd party groups, want more information, or just need to voice your concerns, click here to contact us or give us a call at 609-693-8301 anytime.