Environmental, Health & Safety –
Regulatory Compliance
Snehal R. Patel, Counsel
ExxonMobil Law Department
1
Overview
• Who’s the Client?
• Rules of Professional Conduct
• Code of Ethics and Business Conduct
• Compliance Expectations
• Roles and Responsibilities
• Compliance Scenarios
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Who’s the Client?
• Texas Disciplinary Rules of Professional
Conduct:
• Duty to the Entity overrides Individual
Constituent
• Rules on Protecting the Entity
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Ethics Policy
"The policy of Exxon Mobil Corporation is to comply with all
governmental laws, rules and regulations applicable to its
business.
The Corporation's Ethics policy does not stop here. Even where
the law is permissive, the Corporation chooses the course of
highest integrity. Local customs, traditions, and mores differ from
place to place, and this must be recognized. But honesty is not
subject to criticism in any culture. Shades of dishonesty simply
invite demoralizing and reprehensible judgments. A well-founded
reputation for scrupulous dealing is itself a priceless corporate
asset."
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Compliance Expectations
• Compliance with all laws/regulations
• Choose the course of highest integrity
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Roles & Responsibilities
Role as a Counselor/Advisor/Negotiator
−Responsible for providing advice on legal
compliance issues
oAnalyze laws and facts
oEvaluate legal options
oEvaluate potential legal exposures
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Compliance Hypotheticals – For Discussion
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Hypothetical 1
Fuel Quality Standards
Severe weather disrupted regional commercial activity and led to
government concerns about motor fuel shortages. The government
encouraged fuel producers and suppliers to ignore certain
environmental standards in order to facilitate the production and
distribution of an adequate supply of fuels. The government did not
have the legal authority to suspend the requirements, but pledged
that it would not prosecute violators. What advice do you give?
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Hypothetical 2
Release Reporting
A provision of national law requires the immediate reporting by
telephone of certain air emissions, to determine whether a
government emergency response was necessary to protect public
health or the environment. The government makes a mistake and
sets the reporting threshold for one substance so low that a large
number of telephone reports are generated for circumstances that
would not normally require an emergency response. The
government asks companies to refrain from reporting these types of
releases during the lengthy period required to change the reporting
threshold, Without the legal authority to waive or suspend the
requirement, it could only promise not to enforce against the
specified violation. What advice do you give?
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Hypothetical 3
Discovery of Spills at a Site
During some routine maintenance at a small barge cleaning
company, a worker finds evidence of spills from cleaning solvents in
the soil. There are regulatory requirements for reporting spills “upon
discovery” within 24 hours. The plant manager is new to the job and
would like to quietly handle the matter in-house. The plant manager
also tells you that the release is finding its way into a nearby
waterway that is a source of drinking water. What advice do you
give?
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Hypothetical 4
Natural Disaster
In response to a natural disaster, a regional governor lawfully issues a
proclamation suspending all laws and regulations of the regional
government that would impede responding to the disaster.
The regional environmental agency issues guidance that all
"reasonable" actions that are "necessary and prudent" to "facilitate,
maintain, or restore" the production and distribution of fuel were covered
by the proclamation. It offers "enforcement discretion" for
noncompliance with specified fuel vapor pressure rules.
The national government exercised its legal authority to suspend certain
fuels-related environmental requirements under national law.
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CLASS STUDY
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Clean Water Act
• Judicial Review of Jurisdiction
Determinations
• Post-Sackett v. EPA, some plaintiffs have
argued that the Army Corps’ jurisdictional
determinations (JDs) are subject to
immediate judicial review
• Historically, courts have found that JDs
are not subject to judicial review, but will
the Sackett decision change that?
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Clean Water Act
• Judicial Review of Jurisdiction
Determinations
• Sackett v. EPA held compliance orders
issued by the agency under CWA are
subject to pre-enforcement judicial review.
JDs routinely held to be not final agency
action but post-Sackett, parties testing the
waters
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Clean Water Act
• Hawkes v. EPA (8th Cir.)
• Company sought Jurisdictional Decision
(JD) from Army Corps of Engineers that
its property was not a jurisdictional
wetland under CWA
• Army Corps ruled that the property was a
jurisdictional wetland
• Company challenged JD in federal district
court but court held that the JD was not
final agency action. Pending before 8th
Circuit.
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Clean Water Act
• Hawkes v. EPA (8th Cir.)
• Oral argument for Hawkes was held on
12/11/14; the judges seemed inclined
to agree that JDs are subject to
immediate judicial review
• A decision could come in the next few
months
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Clean Water Act
• Another federal appeals court recently
ruled that JDs are not subject to
immediate judicial review:
• In Belle Co. v. U.S. Army Corps of
Engineers, the Fifth Circuit ruled that
JDs are not final agency action.
Despite being the “consummation of
the agency’s decision-making process,”
JDs don’t give rise to any independent
legal consequences
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Clean Water Act
• One of the plaintiffs in Belle petitioned the
U.S. Supreme Court to review this case
• (The case name on appeal is Kent
Recycling Services, LLC v. U.S. Army
Corps of Engineers, reflecting the name
of the remaining plaintiff in the case)
• Potentially significant Supreme Court case,
if review is granted
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