Third, both federal and increasingly state governments are offering compelling incentives for the development and implementation of an EMS. EPA’s Project XL, the National Environmental Performance Track and the Design for the Environment are just a few of the many programs that EPA offers to reward companies that develop and implement EMSs. Increasingly, states are offering compelling rewards to companies that implement such programs.

Finally, vendor preferences are changing the way companies do business. Corporate giants like General Motors, Toyota, Ford and others are using their market influence to spur companies who offer their services to these giants, but neglect to implement EMSs. Because these companies are large and influential, their decision to decline to do business with entities that do not have EMSs is having a market impact on the business practices in the U.S. and elsewhere. 

• Routinely Assess Compliance – One of the best ways to stay ahead of the compliance curve is to assess on a routine basis compliance with applicable requirements. The regularity with which this should be done largely depends upon the nature and complexity of operations, staff turnovers and related site-specific considerations. Although not inexpensive, routine assessments can be done efficiently and thoroughly. Their costs are far less than non-compliance.
• Monitor EHS Developments – Routine monitoring of federal, state and local regulatory developments applicable to facility operations is imperative to compliance. Membership in trade associations or local business groups can greatly facilitate sharing essential information, providing a heads-up on enforcement initiatives, and related “must know” information pertinent to plant operations.
  
• Work With Government Regulators – Developing a solid and positive working relationship with federal and state regulators is essential to ensuring compliance. In a perfect world, regulators know your operations and respect your commitment to compliance and stewardship. Being on the same page with your regulators goes a long way to ensuring your company gets the benefit of the doubt in the event compliance issues arise and the regulators could go either way.
  

Regularly Review the Regulatory Files on Your Operations – Under the Freedom of Information Act (FOIA) and state analog “sunshine” laws, entities are entitled to review records on any company, including their own, subject to claims of confidentiality. To ensure you are aware of what others are saying or writing about your operations, it is a good idea regularly to “FOIA” your own records to make sure allegations of non-compliance or other “competitive” issues are not overlooked. The process is inexpensive, and standardizing a process is urged.

Ahead of the Curve
Staying ahead of the compliance curve is an entirely manageable task provided companies have the systems in place to do so, and the resolve to stay in consistent compliance. Although not cost-free, the costs to remain compliant are likely to be far less than defending your operation against claims of non-compliance. The measures noted above will go a long way to saving your company money, time and aggravation.

Lynn L. Bergeson is a managing director of Bergeson & Campbell P.C., a Washington, D.C., law firm focusing on chemical, pesticide and other specialty chemical product approval and regulation, environmental health and safety law, chemical product litigation and associated business issues. She is also president of The Acta Group LLC and The Acta Group EU Ltd. with offices in Washington, D.C., and Manchester, UK. Bergeson is legal counsel to the American Chemistry Counsel Nanotechnology Panel. She can be reached at 202-557-3800.