Monthly Archives: November 2007

Should you do regular formal internal environmental audits?

It depends. Unless you are sure that you have the financial resources andmanagement commitment to fix the problems you uncover in your internal audit, you probably should not be doing it. Why? From a compliance standpoint, there is nothing worse than having a long list of environmental problems that you have uncovered but uncorrected. They call that a smoking gun.

The purpose of your internal audit program should be to uncover small or festering environmental issues and fix them before they become too costly. Every time you walk through your plant, you are in effect performing an audit. When you say some problems, you bring it to the attention of palnt management and you make sure that they follow through with the corrective action.    

How to work effectively with the regulatory agencies

Being able to work effectively with the regulatory agencies is a critical element in any Environmental Management System. If you have a cordial and professional working relationship with your agencies, you are more than half way there. On the other hand, if your approach is to constantly maintain an adversarial or antagonistic relationship with the agencies, you will be spending much of your valuable time and limited resources on a rather unproductive endeavor. Here are some practical and “field-tested” pointers on how you can develop a professional and effective working relationship with the regulatory agencies. 

1.      Do your homework. You should always research the problem areas or issues that you want to get resolved with the agency. Check to see if there are any specific considerations that should be brought up. See if another company has resolved a similar problem with the same agency and find out what the solution is. You should also research any applicable precedents outside of your agency’s jurisdiction that may be pertinent to your case so that you can share them with the agency. What you are doing here is in effect giving the agency a certain level of comfort in knowing that other agencies have resolved similar issues. You are giving them coverage. 

2.      Make a point of meeting the agency staff before you submit your permit application. Lay out your preferred approach and get to know the “case worker” or permit writer who will be handling your application. Always try to make a point of paying a courtesy “get-to-know-you” kind of visit. At the very least, phone the person at the agency and introduce yourself. In many cases, you will be pleasantly surprised by how cooperative the agency staff can be. Keep in mind that it is also to the agency’s advantage to work things out amiably with your company. A professional working relationship with you can and will save them time as well. Try to deal with the agency staff from their perspective – try to put yourself in their shoes. 

3.      Never attack the agency’s regulations in front of the agency staff – no matter how you personally feel about the regulations. It does not matter how nonsensical you may feel about those regulations. Keep your personal opinion to yourself. Remember that it is the agency’s job to enforce the regulations. If you don’t like a particular set of environmental regulations, the time to make your point is during the promulgation (public comment) process. Attacking the agency staff will not enhance your working relationship one iota. All it does is antagonizes the staff and works against your final objective – resolution of a problem you have before the agency. Remember this one too – they have the laws that you don’t like on their side.  4.      You can (and often should) challenge the regulations and argue your case with your “case worker”. State your case clearly and objectively. And again make sure you don’t make it personal. Remember this – everything is negotiable (both sides can win in a negotiated settlement). But as soon as you make it personal, the issue rapidly degenerates into a zero-sum game (allowing one winner and one loser). You want to avoid that as much as possible because more often than not you will end up being the loser.  Here is a true story: One Fortune 500 company had a wastewater discharge permit issue before the regulatory agency.  The plant manager hired a local consultant who was very knowledgeable about the technical issues and the local regulations. Unfortunately he also held some very strong personal views about the regulations and he took it upon himself on numerous occasions to express his views about the regulations and the agency staff who enforced them. He told the staff that they were stupid and ignorant to be enforcing such bad regulations – at face-to-face meetings with the agencies! This went on for many months and the permit application went absolutely nowhere until this local consultant was eventually fired and replaced by a much more personable and equally competent consultant. The relationship between the company and the agency took a dramatic turn for the better. But the company lost many months in the permitting process. The moral of the story is this: Be very careful how you choose the consultants to represent you before an agency. Make sure your consultant has the right temperment  

5.      If there is a deliverable involved, you might want to bounce the draft off the agency staff informally (in a face-to-face meeting if possible) before you submit it formally. Some agencies like that idea – especially if you have established some sort of rapport with them. This approach gives them a chance to preview what is coming down the pike. Often times they will give you some timesaving suggestions that you can incorporate into your final application. 

6.      Always submit your documents to the agency on time. It is a matter of common courtesy to deliver what you promise in a timely manner. You expect timely delivery from your material suppliers  – so why shouldn’t the regulatory agencies expect the same from you? 

7.      Never miss a deadline that you have agreed to with the agency. Why? Because it makes the agency look bad if you fail to meet the deadline. More important, it makes the person who negotiated the agreement with you look very bad. For example, if you enter into some kind of consent agreement with the agency to do certain tasks, you want to make sure that the deadlines specified in the agreement are met. Make sure you have the resources to complete the tasks at hand and meet the deadline. The consent agreement is a contract between your company and the agency. Failure to meet the agreed-to deadlines means you have broken your promise with the agency.  

8.      Work across the table and solicit suggestions from the agency.  There have been instances when an agency official would go out of his way to help the regulated community by suggesting different approaches to the problem at hand. This happens only when there is trust and rapport between the parties.  

9.      Avoid getting caught between the federal EPA and your state agency. If your dealings require the approval of both agencies, say in the case of a federal wastewater discharge permit in a state that has not been delegated the authority to issue the permit, you want to make sure both agencies know what you are doing. Keep all parties informed by email or meeting notes. Don’t count on the federal and local agencies to keep each other informed of your progress. 

The bottom line of all of this is very simple. Treat agency personnel the same way you would like to be treated – with courtesy and professionalism. Experience shows that this common sense management approach goes a long way.

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.

SPCC plan is a performance-based regulation

Let me start the process by reminding everyone that the SPCC (Spill Prevention Control Countermeasure) program is a set of “performance-based” regulations. What that means is that your work has just started after you have completed writing your plan. You have to IMPLEMENT the plan as described. So it does you no good to have a nicely prepared plan sitting on your book shelf. Any thoughts? Comments?

“Small quantity Generator” status

Did you know that if you are a “small quantity generator”, you can store your hazardous wastes on-site for up to 270 days IF you ship your wastes to a site that is more than 200 miles away from you? That’s 90 days more than the standard accumulation time of 180 days! By the way, you will not find the term “small quantity generator” written anywhere in EPA’s regulations (40 CFR 262). The term “small quantity generator” refers to facilities that generate between 100 and 1000 kilograms (220 and 2200 lbs) of hazardous wastes in a calender month. 

Do they have an EMS?

The best way to find out if you or anyone has an EMS is to do an “environmental management audit”.  This is different from the conventional compliance audit where you ask the question: “Is anything wrong here TODAY?” That’s all you can hope for in a  compliance audit. You are trying to find out if the facility is in compliance on the day you perform the audit. It is just a snap shot of the compliance status of the facility. It tells you nothing about what the status will be the next day or next year.

When you do an “environmental management audit”, you are asking this question: “What will they do when something goes wrong tomorrow?” You look at people. You observe how they react to environmental problems. You look at the procedures that they have put in place to plan for emergencies. You ask open-ened questions. You find out how they interact with agencies. All of these questions will help you determine if they have an effective environmental management system.