Climate Change Litigation – Are your Plans Living Documents or Door Stoppers?

This is not a climate change discussion. Please don’t use my blog to voice climate opinions or other venomous rhetoric climate change seems to bring out in some. Today’s conversation is purely meant to remind people regulatory documents are living documents, not documents to be just filed away and never looked at again.

Now that we have that out of the way, this week’s blog stems from an article by JD Supra that popped up on one of my feeds titled, New Wave of Climate Change Related Litigation Focuses on Industry. If you haven’t read it yet, it’s a good summary of ongoing litigation the oil industry is facing from environmental groups.  The author’s ending note jumped off the page to me, as it ties directly to the theme I’ve been posting about all September, “Post Incident Mindset.” Here’s the ending statement:

“There are thousands of facilities that are subject to NPDES permits, either storm water (e.g., construction, industrial, municipal), industrial wastewater, municipal wastewater, animal feeding operations, etc. If the courts accept CLF’s arguments, this could open the floodgate for environmental groups nationwide to file more actions, including similar claims that RMPs prepared under §112(r) of the Clean Air Act must also consider the potential impacts of climate change. If so and to minimize the potential of becoming a target of litigation, companies would need to develop and certify new SWPPPs or RMPs in order to account for the impacts of climate change.” 

Taking out the somewhat politically hot-topic, “climate change,” the article’s conclusion holds sound logic; we must continue to reevaluate our operations and written plans based on actual real-life events. As a consultant, I’ve seen thousands of plans created to meet a rule, to then be placed on a shelf to be completely forgotten about until an inspector shows up, or similar event. Plans may have been perfectly correct when they were initially developed; however, possibly new construction has happened around us, site conditions may have changed, events that had never happened in the past have now happened, etc. All these justify an honest review of our plans and documents for possible edits and updates.  

One of the items that really grabbed my attention after reading the above article was how the environmental groups were trying to make their cases off the backs of Storm Water Pollution Prevention Plans (SWP3) and Spill Prevention, Control, and Countermeasure (SPCC) Plans. Ironically, in my 17+ years as a consultant, I’d say these manuals are frequently just shelved documents, which isn’t the right way to manage them. Furthermore, a lot of consultants use very generic templates for these unfortunately. “Wink, wink,” – it may be time to start paying a closer eye to these.

During Harvey, I saw my old home under water on the news. I bought that home after Allison in 2001 specifically because that area didn’t flood during Allison. While there, I never had flood insurance.  Guess what?  If I still lived there today, I’d be getting it now.  Why did that happen? Conceivably, due to the huge explosion of growth in the area – reduction in permeable areas compounded with vast changes to the natural water patterns in the area. What’s the point to this story? Things change with time, so we must continue to adapt and update our plans and policies.

The key thing here to remember, generally speaking, regulatory documents are meant to be evergreen, i.e., living documents, that are regularly updated and reviewed. These documents should be detailed, and reflect your actual property, not just generic fluff documents. With recent events, it’s a good time to go back into your plans and reevaluate – establish polices to address these post events in the future too.

Coming up soon on a blog, SPCC Plans and Facility Response Plans (FRP) training myths and actual requirements.

Additional Reference/Resource Material Blogs:

• OPA90/Contingency Plans Post Harvey/Irma - Have your Facilities/Operations Changed?
• Is Your Contingency Plan Compliant and Mindful of Current Industry Conditions?
• Common FRP and SPCC Plan Maintenance Mistakes?
• Keeping Mindful of Submission Timelines - Mergers/Acquisitions

For a complete listing of past articles and resources, click here.

Need compliance or planning assistance or just have a question? Email John Carroll ([email protected]), Associate Managing Director - Compliance Services at Witt O’Brien’s or reach him by phone at 281-320-9796.

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