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Watch for EPA Compliance Gaps

December 2016

By Megan Schneider

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With the Environmental Protection Agency’s recent fines for higher education institutions’ noncompliance, it’s time to review comprehensive efforts to close the gaps in compliance processes.

All colleges and universities are subject to Environmental Protection Agency (EPA) regulations and must manage their compliance efforts in one way or another. While campuses vary greatly in both the amount of regulation they are subject to and the efforts they have in place to ensure compliance, many business offices may be leaving gaps in their compliance efforts that put their institutions at risk for potential fines.

In 2016 alone, three schools have been hit with major EPA violations, with fines ranging from $11,233 on the low end to $275,000 on the high end. While an extra $11,000 expense may not be a huge cause for alarm at some colleges and universities, as operating budgets become increasingly tight across the country any unplanned expense has the potential to become concerning to campus administrations. Following are a few key areas your business office may be overlooking in its EPA compliance efforts.

Complacency Dangers

The largest and most common room for error in EPA compliance is that of an institution becoming too complacent in conducting regular compliance checks and maintaining already established compliance efforts. Most colleges and universities have strong systems in place to ensure compliance with regulations from agencies with which they frequently deal. Ask most business officers to describe their Department of Education or IRS compliance efforts and most can give detailed descriptions of which offices and what employees are responsible for different areas of compliance.

However, it is dangerously easy to become lax, over time, in regard to rigorous compliance with regulation from the less-active agencies. Because the EPA isn’t regularly, or even annually, inspecting every single college or university campus, there is a temptation for business offices to push EPA compliance checks far down on busy to-do lists, but as the most recent higher education EPA fines have shown, such oversight can sometimes result in budgetary disaster.

Assumptions and risks. Jack Voorhees, executive director of the Campus Safety, Health, and Environmental Management Association (CSHEMA), says he’s seen some ongoing trends in many business offices: leaders either (1) assume that their campus is EPA compliant, or (2) more dangerously, in lieu of ensuring compliance, they play the odds and bet against the likelihood of EPA inspection. Voorhees cautions that: “On paper, it’s easy to assume that it will be more likely than not that an incident won’t happen on campus, but in most cases (as we have seen recently) that gamble is extremely expensive and potentially damaging for an institution.”

What’s more, according to other industry experts, EPA’s recent regulatory actions represent an early signal of the agency’s intention to ramp up inspection efforts at colleges and universities.

Peter Reinhardt, director of the Office of Environmental Health and Safety at Yale University, New Haven, Conn., says “[EPA] doesn’t inspect very often, but when they do, they go big and tend to nail [institutions].” They like to make examples of people who are not compliant, notes Reinhardt, in the hopes of encouraging greater compliance; but there are concerns in some regions that that outcome hasn’t been the response at colleges and universities. Reinhardt, who has worked in EPA compliance for more than 30 years, adds, “EPA has recognized that colleges and universities tend to have compliance problems and will be increasing their focus on them.”

Paying the price. One of the biggest dangers in allowing EPA compliance efforts to become less rigorous is that without ongoing effective review, it is virtually impossible for schools to preemptively predict where their institutions may fall on the scale of fine amounts (or what reputational harm they may incur) based on particular violations. The difference in the budgetary impacts of an expense of $11,233 and one that is approaching $300,000 is significant, and yet the two schools on the receiving end of these fines were both cited for violations of the same law—the Resource Conservation and Recovery Act—which relates to hazardous waste generation and management.

While a perceived unlikelihood of an inspection may tempt business offices to gamble against continuous compliance reviews, ensuring complete compliance is the only singular way to prevent unanticipated and unpredictable expenses.

Processes and Pitfalls

Knowing the ins and outs of your campus’s compliance system is crucial for identifying what specific areas of trouble might befall your college or university.  All campuses attack compliance efforts differently: Some outsource and utilize independent compliance consultants, others prefer on-campus offices, and still others have come up with more creative solutions to try and tackle compliance in a cost-effective way. Regardless of your institution’s approach, knowing the ins and outs of your campus’s system makes it easier to identify potential gaps.

Decentralize at your own risk. A recent trend that may be adding vulnerability to compliance efforts is the transition some university systems are making from maintaining one compliance office on each campus to a  single environmental regulation compliance team responsible for all system campuses. While the shift to sharing a decentralized compliance team can be a great cost-cutting measure, CSHEMA’s Voorhees encourages business officers at schools that operate under such a system to also periodically undertake their own review of each individual campus’s compliance efforts. The lack of a permanent, on-campus office dedicated to compliance makes it more likely that minor violations will go unnoticed, which can rapidly lead to larger violations and greater potential for fines.

Additionally, business offices operating with a shared compliance team arrangement need to keep in mind that it can be difficult for such systemwide teams to track the unique regulations applicable for each individual campus. For example, a single state university system could feature both a large research university with a population exceeding 50,000 students and a smaller, liberal arts–focused school with a student population in the 20,000s. The difference in both size and mission of these two schools means that they’ll almost certainly trigger different EPA regulations, to say nothing of the potential for regulation variation depending on the location of each school (e.g., an isolated school adjacent to a large body of water will assume EPA regulations that a landlocked urban campus will not, and vice versa). New updates to the Hazardous Waste Generator Improvements Rule, for example, feature three distinct enforcement regimes based on waste production, with more stringent requirements for the largest generators.

In such cases it can be more difficult for a single compliance team to ensure compliance on each individual campus, and additional periodic review by a campus business office can help to identify and resolve violations before they result in fines.

For those schools that do maintain dedicated on-campus compliance offices, there are still risks that business offices should keep in mind. Reinhardt, who runs such an office on the Yale University campus, cautions: “There are not a lot of people like me on campuses, and it’s easy for us to get distracted by a lot of other things—OSHA, biohazard rules, and so forth—because there haven’t been a lot of EPA enforcement actions.”

Voorhees seconds this concern and also mentions the trend that CSHEMA has seen for environmental compliance positions to be among the first cut, when budget shortages arise. While such cuts aren’t always avoidable, it’s important for business officers to keep in mind that these reductions limit the ability of campus offices to effectively monitor all areas of compliance and may necessitate greater involvement from other business areas to ensure compliance.

Review reporting structures. Indirect reporting lines in compliance systems are another potential vulnerability. EPA regulation is incredibly broad and can touch on janitors, labs, construction sites, waste management plants, and myriad other areas. While most business officers typically have direct responsibility for facility operations, they should also be aware of everything outside their direct reporting lines that may trigger regulation concerns.

Some areas presenting the most challenging compliance issues are campus labs, research facilities, university-affiliated teaching hospitals, and the like, which can often report up through research offices or even separate administrations. Areas like this that may fall outside the purview of traditional business office oversight still leave a campus open to liability. When EPA regulators inspect a campus, they go into any and all areas, and the bill for any resulting fines will reach the business office even if the violation occurred outside one of its areas of supervision.

It is imperative that business officers work with faculty, departmental chairs, or fellow administrators to ensure a strong system is in place for ongoing compliance in all campus areas, even those for which they are not directly responsible.

While there is no singularly correct compliance system, taking the time to understand the nuances of your campus’s policies and procedures is one of the best ways to pinpoint what you may be overlooking.

Don’t Skip the Small Stuff

Even though EPA is often slow to move on introducing regulations that have widespread impact or to make broad, sweeping, regulatory changes, its smaller, detail-oriented regulations can be no less impactful than more-comprehensive rules when it comes to amassing fines.

Section 608 of the Clean Air Act, which deals with managing refrigerant in stationary refrigeration and air-conditioning equipment, is an often overlooked rule on campuses but can apply to areas as diverse as labs, campus dining halls, residence halls, and athletic venues. While a rule dealing only with managing refrigerant may seem steeped in minutiae, EPA is authorized to assess fines of up to $37,000 per day for violations of this rule, so seemingly minor shortfalls can quickly add up.

The National Emission Standards for Stationary Reciprocating Internal Combustion Engines (RICE MACT), which deal with combustion engines used in association with compressors, water pumps, generators, and so forth, are another good example of a series of somewhat unknown regulations that have slowly been expanded in recent years. Expansion of and changes to this rule mean that schools not previously subject to its guidelines could have unknowingly triggered and subsequently violated seemingly minor new guidelines.

Also, while the recently promulgated Hazardous Waste Generator Improvements Rule intends to provide much-needed updates and greater management flexibility in the hopes that compliance will become easier, the implementation of any new rule should trigger a procedural compliance review to ensure processes comply with the new regulation.

It’s the nature of EPA to promulgate regulations that are generally much more nuanced and detail oriented than that of other federal agencies. While this large collection of minor regulations may seem less important than say, Title IV or Title IX of the Higher Education Act, they leave an institution just as open to potential fines or reputational harm as any other regulation. While keeping aware of and in compliance with a large number of seemingly trivial regulations can be daunting and costly, the potential cost of noncompliance is undoubtedly greater.

In summary, establishing and maintaining a strong EPA compliance regime can be both difficult and time-consuming. EPA regulations are numerous and complex, and there are undoubtedly plenty of campuses still struggling to keep on top of their compliance efforts. Luckily, many free and cost-effective tools are available to campuses.

While every individual campus should enjoy the freedom that comes with structuring a compliance scheme that best meets its own unique requirements, ever-growing EPA regulation and inspection means that noncompliance should never be the choice of the prepared business office.

MEGAN SCHNEIDER is assistant director, federal affairs, NACUBO.


Related Topics

It is imperative that business officers work with faculty, departmental chairs, or fellow administrators to ensure a strong system is in place for ongoing compliance in all campus areas.