Surviving in lean times for environmental managers

I came across an excellent articleon this topic written by my friend Richard MacLean. It was published in the 2009 summer issue of The Environmental Quality Management Journal. Richard touched on a number of corporate staff reduction issues and offered some common sense recommendations. It is a must read for all environmental managers.

The best part of his article was hisCase Study. Here is a recap. A corporate EHS director was facing an order from senior management to cut staff by 25% across the board. The across the board cut is a somewhat cowardly way of doing it as Richard intimated and I fully concur. The director – with Richard’s help – was able to make a case for a LARGER budget to an influential corporate attorney and garnered her support. She went to bat for the director before the management board and needless to say there was a happy ending.

As someone who has worked in the corporate world for many years, I can attest to the wisdom in the approach described in the Case Study. As an environmental manager, you ALWAYS want to have the corporate legal department on your side. ALWAYS.

It is really not that hard to do even though you may not have a Harvard law degree. Why? Because environmental managers deal with liability every day. Attorneys understand liability. Senior management fear liability. So if you have those attroneys on your side, senior management will start to fear you too.

To be successful, you have to do your homework and be MORE knowledgable about environmental issues than your attorney colleagues. That’s not too hard to do either because many corporate attorneys are not environmental attorneys. But they do know liability! It is their job to minimize corporate liability. So get to know these folks. Do not be afraid of them. Do not let them treat you like a “janitor in a suit”. Take them to the plants. Keep them updated on any on-going environmental issues.

When you are traveling with them, stay at the SAME expensive hotels as they do. Hell – If that hotel is good enough for them, it is good enough for you. The reason you must stay at the same hotel is that it will give you more time to offer them environmental advice. Some call it bonding. That was my excuse and my boss (a vice president) never once questioned my expensive hotel bills. Take them out to expensive dinners on your expense account. They love that. A side note: First year law school teaches law students how to spot expensive restaurants in any town.

In more ways than one, survival in the corporate world is like jungle survival. If you look and act weak, you will be eaten or cut. Try to maintain a certain level of mystique about your work. The Vice President of Manufacturing does not need to know or understand everything you do. No more than you need to know in excruciating details how he makes his widget. All he has to know is that you are helping his plants stay in compliance or save money AND you are the go-to person when something bad happens with the environmental agencies or when he needs an environmental permit in a hurry.

A true story: A newly promoted vice president once asked me to give him an engineering book on waste water treatment design because he wanted to be an expert on it overnight. Those were his exact words and he was a fool. And he did make a fool of himself the next day at the management board meeting. He had one of those MBA degrees.

On a slightly political note: My friend Richard stated in his article that “the George W. Bush era only deepened the assumption that environmental concerns were “under control” and represented a low business priority”. There are no truer words written than those. But then Richard ended his otherwise excellent article by saying that the (regulatory) “demands will only become more difficult in the future, especially if the Obama administration fulfills its promise to enact additional environmental mandates.”

Well – could it be that the Obama administration is simply trying to reverse 8 long years of neglect and delusion? What do you think, readers?

How to work with your plant folks

This blog gives you some practical ideas on how to interact with your colleagues at the plants. Let’s start by taking a hard look at the plant manager. The degree to which your plant maintains its environmental compliance status depends largely on the attitude of the plant manager.

There are basically two types of plant managers. The first type understands the need to stay in compliance and will work with you to achieve that goal. The plant managers in this group understand the legal aspects of environmental compliance and will make sure that his staff works with you to make sure that the plant stays in compliance. Fortunately, most plant managers fall into this category. The second group of plant managers is made up of those people who consider environmental compliance a nuisance.

With the first group of plant managers, your work is fairly straightforward. All you need to do is to make sure that the plant personnel get the necessary corporate support to fix any deficiencies. Make sure they have the necessary resources to stay in compliance. As you go thorough the facility and notice a non-compliance situation, you should sit down with the plant manager or person in charge and go through what needs to be fixed. Your immediate focus should not be on preparing a plant visit or audit report that details all the environmental problems. The focus should be on getting the problems fixed as quickly as possible. For example, one of your central roles may be to help the plant prepare a capital appropriation request in order to obtain the necessary funding from corporate to get the issue resolved. If your financial resources are not sufficient to tackle all the problems, prioritize them and work on the ones with the most significant human health or environmental impact first.

By the way, once the problem is corrected, make sure you document the efforts your company has undertaken to resolve the issue. It never hurts to document your good faith efforts.

A few words of caution here. Try not to do everything for the plant even though it will make you real popular at the plant. You want to make sure that the plant personnel have ownership of any plans or documents that are specific to their operation. Support them by all means – but don’t do all the work for them. For example, you want to make sure that they are involved in the development of their Spill Prevention and Control Countermeasure Plan (SPCC), their hazardous material inventory form (Tier II report), their Stormwater Pollution Prevention Plan, or their hazardous waste contingency plan. Most of these plans contain plant-specific information and documented inspections. Unless the plant personnel are involved in the development of these plans, they are not likely to have ownership and nothing will be done by way of follow-up or implementation.

For example, the RCRA contingency plan requires the facility to identify an on-site emergency coordinator and to list where hazardous wastes are accumulated. Tier II report requires the plant to show where they store certain hazardous chemicals. Since they know where they store their own chemicals, it makes sense for the plant to prepare its own inventory. It is fine to have outside consultants come in to assist the plant personnel in preparing their hazardous waste contingency plan or spill prevention plan. Just make sure the plant personnel are involved in the process. Otherwise, the plan will end up being just a nicely prepared document prepared by some outside consultants that sits on the plant manager’s bookshelf. No one will ever look at it, update it or implement it because there is no ownership at the plant. And when the agency inspectors come by to inspect the plans, they look for evidence of implementation. For example, if the plan calls for weekly inspections, the agency wants to see log book entries that demonstrate that. The inspectors will always check to make sure the plans are current and up-to-date.

The second group of plant managers looks upon environmental compliance as a hindrance to meeting their production goals. These folks are totally focused on numbers – meeting their production quotas and getting their bonuses – and they will do just about anything to circumvent environmental regulations. Worse yet – some of these managers also take an adversarial approach to the regulatory agencies. They see everything as “us versus them”. If you sense that the relationship between the plant management and the local agency staff is somewhere between antagonistic and hostile, you need to bring that situation to a halt as quickly as possible. Let senior management at headquarters know about it as well. It is a sad but true fact that many major enforcement actions can be traced back to a poor working relationship between the regulator and the regulated.

Interestingly enough, very often you will find these same plant managers pay a lot of attention to workers’ injuries while totally ignoring environmental compliance issues. The reason is quite simple. The monthly costs of safety non-compliance can be easily tracked by senior management through incident rates and workers comp costs. Environmental non-compliance costs, on the other hand, are much harder to track. These costs are often hidden in overhead and maintenance. As a result, senior management at the corporate level often set safety goals for their plants and reinforce them with safety performance bonuses for the plant managers. Lower incident rate translates to a larger year-end bonus. The attitudes of many of these plant managers are then shaped by such financial incentives and that explains why they pay much more attention to safety concerns than environmental issues. If you find yourself faced with such a situation, what you want to do is to work closely with safety manager. Try to incorporate some environmental training at the same time when you or your safety counterparts do safety training. For example: When you are doing OSHA’s hazard communication training, tack on at the end a session on emergency response training for those employees who handle hazardous wastes.

With this second group of plant managers, you will also need to make sure that the plant manager’s supervisor is informed of all non-compliance issues and extra efforts must be made to ensure follow-up. You want to find someone up the management ladder – above the plant manager’s level -who is cognizant of the need to stay in compliance. You will need the support of this senior corporate officer to help you put your program in place at the plant. In other words, you need a “champion” who can overrule the recalcitrant plant manager.  If such a person does not exist within your organization, you may want to think about moving on to another company.

You also need to be vigilant in making sure that you don’t become party to a “bad decision” making process. For example, if a plant manager should ever suggest to you or his staff in your presence that they “alter” or falsify a wastewater Discharge Monitoring Report or ship hazardous wastes to an unlicensed facility, you need to make your objections known in a highly visible and documented manner to everyone involved –  including the plant manager’s supervisor. The worst thing you can do for yourself and your company in this case is to “go along in order to get along”. In a highly regulated industry, silence on your part can be easily interpreted by the law enforcement agencies to mean acquiescence.

After all, you are supposed to be in charge of the environmental programs, aren’t you?

Working with your attorneys

As an environmental professional, due diligence should be an important part of your activities. Due diligence inevitably involves legal liability issues. You will need to work with your attorneys on this. Attorneys can be your best friend or your worst enemy – depending on the approach you take with them. 

Do not let anyone tell you that because you are not an attorney, you cannot talk intelligently about environmental liabilities. You do not need a degree from Harvard Law School to understand that falsifying records under the Clean Water Act is a crime – big liability there! You also don’t have to be an auto mechanic or mechanical engineer to drive a one-ton SUV. 

As in the case of hiring consultants, don’t hire big law firms to work on small legal cases. If you do, you will end up paying $200 per hour for some young lawyer to learn on the job under the supervision of a $400 per hour law partner. In most big corporations, it is the in-house counsel who chooses which outside law firm to retain. But that does not mean you should cede your role and responsibilities entirely and turn your case over to your legal team. You should work very closely with the legal team since you are the environmental manager and you know all the underlying facts about the case. Insist that you be involved in the discussions of strategies. Remember – you not only know the technical issues, you also know the folks at the agency.  Since legal strategies inevitably involve relationships between your company (represented by you) and the agency, it makes good management sense that you be involved in the discussions. If you don’t insist, you will be relegated to a mere “technician” – a “janitor in a suit” in the eyes of your legal counsel. 

The best way to ensure a meaningful role within your legal team is to develop a professional rapport with your in-house counsel. You do that by keeping your company attorney up-to-date on pending environmental issues at your plants. Don’t call your attorney only when you have a big legal problem. Invite the attorney to visit your plant before problems arise. 

Allow me to relay a funny but sad story during my previous life with a multi-national corporation. I attended a meeting at a large law firm with several of my vice presidents. This was one of those law firms with inter-floor spiral staircases, marble flooring, mahogany panels and corridors that resemble a fine arts museum – all paid for by their clients. One of the VPs made the mistake of asking a law partner a simple environmental question. The law partner jumped on it right away and said:”Let us do some legal research on it and we will get back to you”. A month later we received an invoice from the law firm for 14 hours of “legal research” (at $300 per hour). I was horrified and faxed a short paragraph to the law partner requesting that he send us the results of his “legal research” and cease work on any further research. Not only did we not get the “research” results, we received an additional invoice for $75 (minimum charge unit of 15 minutes) for reading my fax.

A true story.

How to set up an Early Warning System for your own protection

If you are the person who is responsible for your company’s environmental management program, you carry certain personal liability. For example, if EPA were to find out or suspect that someone within your organization has falsified your Discharge Monitoring Report (DMR) under the Clean Water Act, who do you think will be the first person the agency wants to interview? What will be your response to the enquiry? What will you say to the FBI agents?  To minimize your own personal liability, it is important for you to understand all the requirements and the enforcement process. Try to look at enforcement from the agency’s viewpoint. In other words, understand how the agencies select their targets. And remember that your response to the agencies will often determine their responses to you. This is particularly true in the case of agency inspection. Always cooperate with the agencies while protecting your rights. A good place to start is to have a set of clearly defined environmental procedures sop that your employees know how to behave before, during and after an agency inspection. They also need to understand how to manage their records.

Understand that as an environmental manager, you do have certain specific responsibilities and the agencies expect you to carry them out lawfully.  If you are negligent in your duties and something bad happens, you may be held personally accountable. Let’s say you have personal knowledge that an aboveground storage tank storing some very hazardous chemical has some structural instability problems. The base of the tank is showing signs of severe corrosion. When that tank collapses a few weeks later and fatalities or sever environmental damage occur, the agency will want to know why you fail to take action. The agency will want to know if anyone within your organization directed you not to take action or perhaps you have decided upon yourself to keep this known defect secret. You may be held liable as a result of the investigation. If someone has falsified your DMR, the agency will want to know how that happened under your watch since you are the person responsible for the company’s environmental program. They will want to know if you played a role – directly or indirectly – in the illegal act. 

Early Warning System 

What you need to have is an Early Warning System to protect you.    The Early Warning System is very simple: As the environmental manager within your organization, you want to pay special attention to what your employees say and do when it comes to compliance issues. If someone within your organization – especially someone at a more senior level than you are – makes some suggestions to you that you know to be in violation of some environmental regulations, it is your responsibility to voice your objections forcefully and immediately. Let those around you know that you will not be party to any kind of “conspiracy” to commit an environmental crime. Let your supervisor know immediately. If your supervisor is the person suggesting such illegal activities, work your way up the organization until you find someone who will listen to you and will take action. Alert your organization’s legal counsel and make sure you have documented proof (with date and time) that you have raised such objections.  Remember this: your silence can often be taken to mean acquiescence. Pay close attention to emails and memo that come across your desk. If you see any evidence of diversion from compliance, you need to stop the illegal thinking process immediately and steer the ship back to the right course.  Ignore those people within your organization who tell you that you are “rocking the boat” or not being a “good team player” by being vigilant. These people are wrong and they do not have your best interests at heart.  One final piece of advice: When it comes to environmental compliance in the corporate setting, NEVER go along to get along. That is a recipe for disaster.  Here is an example from EPA’s website: “A plant manager at a metal finishing company directs employees to bypass the facility’s wastewater treatment unit in order to avoid having to purchase the chemicals that are needed to run the wastewater treatment unit. In so doing, the company sends untreated wastewater directly to the sewer system in violation of the permit issued by the municipal sewer authority. The plant manager is guilty of a criminal violation of the Clean Water Act.” If you are the environmental manager and you go along with this plant manager’s decision, you will very likely be prosecuted as well.