On March 30, I attended the California State Water Board’s 2018 Water Board Data Fair organized by Greg Gearheart, their Deputy Director of Information Management and Analysis. Gearheart showcased the Water Board’s Open Data Initiative and explained how the Open and Transparent Water Data Act of September 2016 (AB 1755) triggered California’s water agencies to transition to an Open Data platform.
An online platform for Open Data typically allows users to quickly and easily search government databases for information. The Open Data movement was initiated by the Obama Administration in 2013 to “fuel entrepreneurship and economic growth while increasing government transparency and efficiency.” In his presentation, Gearheart explained that the Water Board collects, uses, and produces data to:
- Inform our data-driven management and planning activities,
- Inform the critical decisions regarding our mission(s) and water management responsibilities, and
- Provide transparency to partners and stakeholders for their use, interests, and purposes.”
If you’re regulated by the Water Board, this should make you sweat. A data-driven management approach streamlines the way regulators issue enforcement actions. The SMARTS online platform can already automatically detect whether an industrial facility has submitted its Level 1 or Level 2 Report and outputs a list of outstanding reports.
In other words, the State Water Board is upping their game. In an effort to provide transparency to partners and stakeholders, they’re rolling out detailed data systems with which the public can easily access permittee data. These tools better enable environmental groups and corporate watchdogs to hold facilities accountable for noncompliance and are a likely contributor to the 50% annual increase in citizen suits in California.
The federal EPA is also at the forefront of Open Data. Even with EPA Administrator Scott Pruitt rolling back regulations, the EPA still retains its Open Government webpage. In 2017, the Trump Administration held a Roundtable on Open Data for Economic Growth to praise the way Open Data has helped US businesses. Ultimately, all states will be required to make this transition due to 2015’s NPDES eReporting rule mandating all states to have a system in place by 2020 to enforce electronic submission of NPDES data.
So how does a company prepare for an open and transparent system when “there is no facility that is 100 percent compliant, 100 percent of the time”?
Most facilities are reactive about compliance. That means they keep doing what they’ve been doing until a triggering event forces the company’s hand – typically a fine from the Water Board or a citizen suit from an environmental group. A few companies quickly settle lawsuits without developing a compliance strategy, exposing themselves to additional fines and lawsuits; 5% of California facilities that were sued received multiple notices of intent to sue between January 2015 to December 2017.
While this approach may suffice for a small shop far away from a beneficial use receiving waterbody, reactive strategies are risky for larger enterprises. Fines and lawsuits often cost millions, and brand reputations can be permanently damaged. These days, environmental lawsuits and fines are public news:
- Sacramento Business Journal – Cemex settles lawsuit over alleged Sacramento River pollution
- KEZI 9, an ABC affiliate – DEQ fining Frito-Lay for stormwater monitoring violation
- Eureka Times-Standard – California Redwood Company, Humboldt Baykeeper settle bay pollution lawsuit
Five Steps to Proactive Compliance
Proactive compliance, on the other hand, strategizes to develop a compliance program that minimizes the risk of a violation. The following five steps will guide your compliance program toward a proactive approach:
1. Understand your risk
Understanding the deficiencies at each of your facilities is the first step in quantifying your compliance risk. Not sure how to determine the deficiencies at your facilities? You can get started today by using Mapistry’s free Stormwater Audit. Ask your facility managers to complete the survey questions, and the results will aid you in identifying gaps in your compliance program.
2. Make some goals
Now that you have an idea of your risk exposure, make some goals to minimize that risk. Many enterprises are moving toward the ISO 14001 standards. For example, Ingram Micro’s social responsibility webpage states “Ingram Micro’s Environmental Stewardship policy requires all facilities to implement site-specific environmental management systems (EMS) in alignment with the ISO 14001 framework . . . Our priority is to develop systems that are effective in minimizing our environmental impact.” I’ve also heard one company define their goal of a world-class stormwater program as ensuring that even their non-environmental facility staff know how to speak with an inspector, sample during a storm event, and react to a spill.
3. Take the necessary steps to meet your goals
Your site doesn’t have a SWPPP? Write one! Your samples are exceeding benchmarks? Install a new BMP! Don’t get caught in stormwater program ambivalence. Develop training and incentive programs designed to increase your employees’ proactiveness as well.
4. Get to know your Environmental Groups & Regulators
Earlier this month, the Harvard Business Review published an article entitled “The Right Way for Companies to Publicize Their Social Responsibility Efforts.” The article argues that taking a more targeted, proactive approach to social responsibility has better results than publishing an annual sustainability report. “Both regulators and NGOs want to be engaged as partners with the company in addressing the social and environmental issues they care about. Therefore, continuous communication, joint projects, and stakeholder engagement are what is needed to build constructive working relationships with those constituencies.” Identify which environmental group(s) may be monitoring you and consider engaging and joining in community-based projects with them. For example, check out these companies who’ve become corporate partners with Waterkeeper Alliance.
5. Track your online image
While a public agency website is not nearly as entertaining as Facebook, keep an eye on your facilities’ online presence. The public is monitoring eReporting databases, so it’s a best practice to routinely take a look yourself. Is your SWPPP up to date? Does your site map look professional? How do your sample results look? If your data is not flawless, make sure your online profile demonstrates that you’re improving.
Wish you could monitor all your facilities across multiple states in one place? Take a look at our enterprise dashboard below!
Early Adopters of Proactive Compliance
A few enterprises are already doing this well. Georgia-Pacific, for example, leaps ahead of Open Data Initiatives by posting their environmental compliance data on their website using interactive charts. What a great way to show improvement over time!
Georgia-Pacific has also partnered with regulators and communities to achieve their environmental compliance goals. In 2016, they partnered with the U.S. EPA to increase efficiencies in transportation through the adoption of technology with the SmartWay Program. Also in 2016, their facility in Modesto, California received an environmental compliance award from the city “for no violations and for its preparedness.” They also established the Georgia-Pacific Foundation to provide grants for community-based projects near their manufacturing facilities.
The countrywide transition to eReporting systems is changing the game. In California, it’s already enabling regulators and environmental groups to streamline enforcement. You need proactive approaches to protect yourself in this digital age.
Interested in learning more about citizen suit risk? Download our litigation briefing.