Expert Opinion: Hazardous waste compliance is different in California
Davina Pujari and Samir Abdelnour, Hanson Bridgett LLP
In California, companies that generate or handle hazardous or "universal" waste face a unique enforcement risk. California prosecutors, including district attorneys (DAs), are adept at investigating and filing civil enforcement actions against businesses based on undercover "dumpster dives" and agency inspection reports. These cases, which follow a recognizable formula, have generated hundreds of millions of dollars in penalties over the last several years.
In most cases, a company will first learn about a DA investigation long after it has begun. The targeted company typically receives a letter from one or more DAs informing the company that it has been under investigation for hazardous waste violations, and inviting company representatives to engage in pre-filing settlement discussions.
At an initial meeting, the DAs present a detailed slide show with inspection reports, photographs of dumpster dives, and other selected evidence designed to portray the company as non-compliant with California's hazardous waste laws. The DAs will also request documents from the company, either voluntarily or through an administrative subpoena, relating to hazardous waste compliance. Before engaging in any meaningful settlement discussion, the DAs will then demand that the company come into "substantial compliance," measured essentially using a "we know it when we see it" standard.
Once the company demonstrates "substantial compliance" to the DAs' satisfaction, the DAs make a settlement demand based on alleged non-compliance across all company operations based on the selected evidence gathered. For companies that operate in multiple locations, these allegations can quickly add up to potential exposure in the tens of millions of dollars (or more).
Even after the company and the DAs enter into settlement negotiations, the DAs may, and often do, continue to gather evidence from dumpster dives and regulatory inspections, adding to the penalty exposure.
At the end of the investigation, either a settlement is reached between the company and the DAs, or the DAs file a civil enforcement action in court.
Variations on this formula may include the involvement of City Attorneys or the California Attorney General in the case, or the threat of criminal or quasi-criminal charges (such as false statements made in the regulatory context).
Retail Settlements Companies doing business in California that have been subject to these investigations and enforcement actions include retail giants such as Target and Walmart; automobile retailers and service providers such as O'Reilly Auto Parts and AutoZone; digital media companies such as Comcast and DirecTV; and shipping companies such as FedEx.
The settlements reached with these companies generally include a significant, often multi-million dollar penalty, payment of the government's costs of investigation, and credit for the demonstrable costs of new or enhanced compliance programs. They can also include injunctive provisions requiring the defendant company to take additional action and spend more money to comply (or go beyond compliance) with California's complex hazardous and universal waste laws and regulations.
Once a case is settled with the DAs and a stipulated judgment is entered by the court documenting the terms of the settlement, the settling company is still not free to proceed with business as usual with its new compliance program in place. Instead, the DAs often fight to extend the stipulated judgment beyond its own terms, as in the case of People v. Wal-Mart Stores, Inc. (San Diego Co. Superior Court Case No. 37-2010-00089145-CU-TT-CTL).
In the above case, Walmart filed a motion after the designated time period to terminate the stipulated judgment, but the DAs fought hard to keep the judgment in place. To support their position, the DAs presented evidence collected during undercover dumpster dives they had conducted during the term of the judgment and argued that regulated waste found in the dumpsters proved that Walmart's noncompliance had continued. The court agreed, and Walmart's motion to terminate the judgment failed.
Even if a company succeeds in terminating a stipulated judgment, another tactic of the DAs is to initiate a second investigation and threaten a new enforcement action based on the findings. Thus, companies may find themselves swept back up in the enforcement net a few years after the expiration of their stipulated judgment in an unpleasant case of déjà vu.
The lesson for companies doing business and generating or handling regulated waste in California is clear: Things are different here, and compliance programs must recognize and reflect that fact, or enforcement could be around the corner. And beginning January 1, 2018, civil penalties for violations of California's hazardous waste laws can now reach $70,000 per violation, up from $25,000.
There are concrete steps that companies may take to minimize the risk of a DA investigation and enforcement action. These include:
1. Carefully assessing internal compliance programs against evolving California regulations and initiatives (i.e., a "gap analysis"), preferably though the use of an objective outside consultant;
2. Preparing and implementing detailed plans to continually improve compliance programs based on the gap analysis conducted and critical feedback from affected employees;
3. Using the best available technology to manage training and compliance assessments; and
4. Providing meaningful incentives for compliance to employees whose primary job duty is not environmental compliance. There is also an element of creativity involved – the days of compliance binders and packaged training programs are behind us. The complexity of the regulatory regime and the enforcement exposure simply demand more.
The good news for companies is the availability of data and resources to inform the compliance improvement process. Stipulated judgments filed in numerous cases (from small to complex), which outline specific requirements imposed on the defendants, are publicly available for review by engaged EHS managers. Several talented consultants work in this space, offering sophisticated "plan, do, check" style services tailored to a specific company's needs and challenges.
Companies need not reinvent the wheel when assessing and improving compliance efforts, although unique challenges may call for uniquely developed solutions. The critical point is that doing nothing, or doing the minimum that is required in other states, simply does not fly in California.
Davina Pujari is co-chair, and Samir Abdelnour is a senior counsel, of the environmental & natural resources group at Hanson Bridgett, a full-service California law firm with more than 150 attorneys.