The sexual fantasies, desires and personal information of an estimated 32 million people using the marital infidelity website AshleyMadison were recently published on the internet due to hacking.
For a company that labels itself “the world’s leading married dating service for discreet encounters,” this data breach is a real awakening.
As noted in Wired Magazine:
The hackers appeared to target Ashley Madison over the questionable morals [the company] condoned and encouraged, but they also took issue with what they considered ALM’s [Avid Life Media, the parent company of the site] fraudulent business practices.
You’re likely wondering how this relates to your business …
… read on to find out. 🙂
A link exists between a website hack and your environmental compliance program.
The Wired Magazine excerpt states that Ashley Madison was targeted because of its questionable morals and fraudulent business practices.
But what connects the hack of the site to your environmental compliance program is the fact that the hackers were compelled by what Ashley Madison was doing on the outside—or at least the appearance the company gave itself.
And when it comes to environmental compliance, citizen suits under the Clean Air Act are close in nature to the hacking of a website.
Your company becomes a target when people don’t agree with your practices.
A group of people who don’t agree with the practices of a certain business, target that company and initiate such acts (website hacks or citizen suits) as a means to correct, or enforce, the problem on their own accord.
The promotion of marital infidelity via a website like AshleyMadison.com is morally questionable, which can then equate to the company having questionable business practices.
Questionable businesses practices made the company a hacking target, which is similar to when a citizen suit is filed against a facility under the Clean Air Act for the same reason.
What is a citizen suit?
A citizen suit is a lawsuit made by a private citizen to enforce a regulation.
The 1990 amendments to the Clean Air Act included provisions to encourage citizen suits as a way to supplement the EPA’s enforcement efforts. Such suits can be made against companies that don’t comply with the conditions of either an air permit or a specific regulation.
Therefore, similar to the hacking case of Ashley Madison, a company can become exposed and the subsequent target of a citizen suit based on its compliance history, which can reveal detailed information about the company’s practices in relation to its environmental compliance.
A company’s appearance, as well as its approach to identifying and resolving environmental compliance problems, can make it a target for a citizen suit because of how your businesses practices are perceived from the outside.
It’s what’s on the outside that counts.
A company that’s routinely in the news about its odors or problems will always have more of a presence in the public eye than one that has a “cleaner operation” and doesn’t cause problems.
With that knowledge, it’s important to keep your business as “clean” as possible and address problems quickly in order to lower any risk of a citizen suit merely because of , again, how your business practices are perceived from the outside.
The truth is in the details.
Environmental compliance data tends to be highly detailed information about the operation, layout and specific set up of a given facility.
And while it may seem hard to get hold of this information, it’s much easier than you think.
In the case of Ashley Madison, it’s evident, even without specific company data, that the hackers didn’t agree with the operations or the “product” the company was selling, which was marriage infidelity.
What a company does on the outside is a good indicator of what is going on inside.
But when it comes to environmental compliance, the “writing on the wall” may not be as clear. Identifying environmental problems sometimes requires the review of highly detailed information about a manufacturing process.
The compliance trifecta, as we call it, sums up at least 80 percent of what the environmental compliance department within a regulated entity does on an annual basis:
- Monitor a specific process (monitoring)
- Collect and maintain records (recordkeeping)
- Prepare reports (reporting)
It’s from this compliance trifecta that people get the detailed information that can be used for a citizen suit.
Your compliance reports can come back to haunt you.
Many, if not all, of the environmental compliance reports generated and submitted to a regulatory agency become part of the public domain. Therefore, anyone with knowledge of the facility can request or search for the information provided in the compliance reports under a Freedom of Information Act (FOIA) request.
Once these reports are obtained, these documents and data serve as the basis for which a citizen suit can be built against your facility.
For example, under the Title V program, the Clean Air Act requires that regulated facilities submit reports summarizing monitoring and recordkeeping efforts in addition to disclosing which rules a facility is complying with and which ones they aren’t.
More specifically, for facilities regulated under Title V, the regulations require the preparation and submission of compliance reports in which you must disclose any instances of non-compliance to the regulatory agency.
In terms of a citizen suits, depending on the content within these reports, these Title V reports can be used to make a point that your facility is not doing all it can to comply with the air quality regulations.
In another example, annual emission reports detail the amount of air pollutants being emitted by a given facility on an annual basis and for these reports, the information in them can be used to prove a point that your facility has excessive levels of hazardous air emissions.
Lastly, a Toxic Release Inventory (TRI) report can provide all of the data related to the amount of pollutants being sent to the land, water and air. Again, the data in this report can be used to make a point about the amount of pollutants that is being discharged to each media (i.e., air, water and land).
Your compliance reports make it easy to tell a story—one you may not even know is being told.
Within these data sets, it’s possible to piece together a picture of how compliance is addressed within a specific company, which again would paint either a positive or negative picture of the company’s systems and philosophy with regards to environmental compliance.
Nevertheless, because the fact that many of these compliance reports live in the public domain, obtaining these data has gotten easier, as has the use of such data to build a citizen suit become more prevalent.
Therefore, the appearance of your business, as well as the content within the environmental compliance reports, may reveal more about the inner workings of your business than you thought. In addition, these reports have the potential to make the operations of your business “questionable” and vulnerable to a citizen suit.
Considering your company can be targeted for a citizen suit based on your business practices, it’s best to know ways to protect your business from one of these suits.
Four key ways to prevent citizen suits (and improve your environmental compliance program):
1. Keep a clean image
A facility with trash everywhere, visible emissions or emanating odors paints a different picture than that which is painted by a “clean” facility.
Poor housekeeping, visible emissions and nuisance odors are the easiest ways to paint a picture that a company has some level of disregard to environmental compliance, which alone can cause people to further investigate that company’s inner workings.
To ensure that you keep a clean image, schedule regular housekeeping drills. If you have a process that smells, take added precaution to mitigate the odors.
Double check that all of the combustion devices are operating in a manner that prevents incomplete combustion and the display of visible emissions.
Finally, get to know your neighbors, and let them know in advance of things that will be occurring at your facility. This is especially important if you have a process that has the potential to generate odors.
2. Ensure that compliance reports are accurate
As I mentioned, the data used to prepare compliance reports are highly specific and contain a lot of details.
It’s therefore important that the information used to prepare these reports is properly annotated to explain deviations and excursions, and that a documented story is attached to the data to explain any anomalies.
Often when a data set is presented with no history, compliance determinations are done using the “black and white” approach. In other words, people look at the limit and find all of the instances where the data points in the data set are above the limit.
Once this is done, all of the data points above the limit are a deviation.
The problem with this approach is that it lacks context, which can lead to problems. For example, the data points above the limit could be due to the calibration of the system or a permit condition that allows for the exceedance.
When reviewing the data, it’s always recommended to annotate the data set to explain all of its anomalies. You can explain what went wrong or why the data is an excursion rather than a deviation.
You can also include any information associated with the event such as a breakdown or deviation report in order to demonstrate that the issue was reported and promptly resolved.
Without the necessary background, assumptions about the data are made, which are almost always initially defaulted to a deviation or non-compliance.
3. Know the requirements of your permit
The permits issued to your facility should always be the centerpiece of your compliance program.
This document or these documents specifically outline what’s allowed and what isn’t in order to comply with the rules and regulations of the regulatory agency in relation to your operation.
We cannot stress enough the importance of reviewing your permit and understanding all of its conditions required to comply.
We’ve seen many cases where permit conditions contain errors, which make compliance impossible. In such cases, a problem means that sometimes the only path toward resolution is to obtain a variance in the short term, followed by a permit modification to address it indefinitely.
In addition, the operators of the equipment in your facility should understand how the operation of the equipment affects the emission limits or conditions imposed by the permit.
Sometimes actual operating ranges for a specific piece of equipment can be outside the ranges listed on the permit. In such a case, the operator needs to know that the equipment must operate within the range noted on the permit.
In some cases, it’s best to simply set the operating level for a piece of equipment at 85 to 90 percent of the range listed on the permit to ensure that the level will never be exceeded.
4. Address problems quickly
Environmental compliance problems grow in both size and complexity the longer they are left unaddressed.
Addressing a compliance problem quickly, no matter how small it may seem, is the best way to ensure that repeat deviations don’t appear on your compliance reports and that problems are cheaply fixed.
Repeat deviations (same equipment, same condition) can make it seem that the condition has been disregarded and can paint a negative image of how compliance is managed.
As we said, it’s possible to build a picture about how compliance is addressed and managed in a regulated facility by simply looking at the outside and reviewing the data in the public domain.
With the abundance of information on the Internet, obtaining this data is easier than ever before. Along with this is the ease with which a company can paint a negative picture of itself as it relates to environmental compliance.
The Ashley Madison hack is one of many examples showing that the perception of business practices can motivate a group to target that company in a negative way.
Similarly, the business practices and outward appearance of a facility can result in the filing of a citizen suit under the Clean Air Act.
Helping companies comply with the EPA’s Title V program or air quality regulations is a core function of our air quality consulting services, and we can assist you with building the systems needed to promote positive business practices and prevent citizen suits.
Let’s take this over to you
Do you have a colleague who manages the environmental compliance program for a manufacturing facility?
If so, we recommend that you share this article so that your colleague is aware of the best four ways to not become a target of a citizen suit.
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