Geologists and Regulatory Compliance
Jan Horbaczewski, CPG-09369
Many geologists find themselves drawn into the growing area of environmental regulatory compliance in their jobs. They may be required to prepare reports for permits, partici- pate in regulatory inspections, deal with enforcement actions, or testify as “Subject Matter Experts” at hearings and audits. The transition from scientific training to regulatory compli- ance is not always automatic.
Here are some observations based on four decades of expe- rience:
The burden of proof is on the permittee. Regulatory compliance is not an exchange of information and inter- pretations between equals in a collegial setting. The burden of proof is always on the permittee (the entity which has been granted a permit by a regulatory author- ity) to demonstrate, to the regulator’s satisfaction, that a particular regulatory requirement has been met.
Choose your battles. A determination of non-compli- ance by an inspector or permit reviewer may be subjective and can prompt a typical response: “That doesn’t make sense – we need to fight it.” Such determinations can be challenged but appeals require a tremendous amount of preparation and expense, often including legal sup- port (which at several hundred dollars per hour quickly mounts up). They only make sense if there is a good chance of prevailing; otherwise they become an unneces- sary diversion of resources. Sometimes, it is simply more cost-effective to comply.
Common sense does not always factor into regula- tory compliance. What may appear to the permittee to be “common sense” may be of little concern to the regulator who is charged with protecting the public and the environment. In the eyes of the regulator, business concerns, such as: cost, productivity, reliability, pay-back period, or return on investment, are considered to be “costs of doing business” which should have been taken into account at the outset of the project.
The regulator has to check the boxes. Regulatory compliance is concerned with ensuring that all sections of the regulations have been addressed. The regulator is often literally checking boxes – has this section of the regulations been addressed or not? The permittee’s best approach is to address all the sections as directly and briefly as possible, so that the regulator can check the box and move on to the next one. Lengthy dissertations on the merits of the permittee’s case provide little added value and may confuse, or worse frustrate, the reviewer.
The regulator may not have discretion. In some cases, enforcement action has to be taken as soon as a case of non-compliance is seen (“on sight” enforcement). In those situations, the regulator is required to imme- diately issue a citation (usually in the form of a “Notice of Violation”), and does not have the discretion to offer the permittee an opportunity to remediate the situation.
Process is more important than substance. Regulatory compliance is often more about process than substance – have all the forms been properly filled out, have deadlines been met, have certifications been signed by authorized officials? Many citations are issued for not following the process rather than for actual impacts to the environment. That is why record-keeping is so critical to regulatory compliance. This includes not straying from procedures. Notices of Violation are regularly written for failing to follow an organization’s own procedures even when there has been no violation of a regulation.
Professional conduct is essential. Interaction with regulators may, by its very nature, be adversarial and even frustrating, but there is no room for emotions. The regulator has a job to do and has been given the author- ity to do it. Arguments are unhelpful but respectful requests for clarification are allowable. One technique is to summarize a question in your own words and ask the regulator to confirm.
Conduct in formal situations. Professional conduct becomes even more important at formal occasions, such as hearings or audits. The proceedings may be recorded in transcripts for review by a Hearings Examiner or Judge. It is essential to provide the correct answer and to resist the temptation, under pressure, to provide a quick retort. It is permissible to request time to confer with the attorney or with colleagues
Role of personal ethics. In the final analysis, interac- tions with regulators may be boiled down to personal ethics. The best guide on how to act is to put yourself in the other party’s shoes and to treat the regulator as you, yourself, would want to be treated.
Jan K. Horbaczewski graduated from the University of Durham in northern England with a
B.Sc. in Geology (1972) and a Ph.D. in Soil Science (1976). From 1976 to 1983 he worked on agricultural development projects in the Middle East and Central America. From 1984 to 1998 he was employed by Morrison Knudsen Corporation on lignite mine reclama- tion projects primarily in Texas. In 1998 he joined the Texas Municipal Power Agency where he currently works as the Regulatory and Compliance Manger. Jan is a naturalized U.S. citizen since 1999, and is licensed as a Professional Geologist in the State of Texas.
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