Monthly Archives: July 2010

Root Cause Analysis in an Audit – a simple example

When you perform an environmental audit and uncover anomalies, you should also do a simple root cause analysis. How do you do it? Here is a simple example:

Let’s say you are inspecting a hazardous waste storage area and you discover that one of the drums has no “hazardous waste” label on it. You do a root cause analysis. There are basically three possible reasons why the label is missing. One reason is that no one cares about the containers in the storage area. Another reason is that the label has simply fallen off. The third reason may well be that the plant personnel is not aware of the requirement to have a label on every container. You talk to the employees at the plant and you determined that the people there are pretty conscientious about the requirement and that they have received the necessary annual refresher training is required under RCRA. So the only plausible explanation is that the label had fallen off the container.

Then you ask the next question: Why did the label fall off the container? Once again there are several possible reasons. One — the container has been sitting around for so long that the adhesive power of the label has worn off. That does not seem to be a possible explanation since the plant personnel are quite conscientious about moving the drums off the premise before the 90-day time limit is up.

The other reason may well be that the label is of such low quality that it has very limited adhesive power thereby causing it to fall off the container after a short period of time. That seems to be the more plausible explanation.

Then you asked the next question: How did the plant end up with such low quality adhesive labels. In talking to the purchasing department, you discover that in an effort to save money, the purchasing agent decided to purchase the least expensive labels with the least amount of adhesive power.

Now you have the root cause of the problem-the lack of a hazardous waste label on a container. The remedy to this situation is for the purchasing agent to purchase a higher quality label.

By asking mostly open-ended questions, you should be able to find the root cause of most environmental problems.

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Is BP liable under the Superfund Law?

The short and quick answer is NO. BP is not liable for the spilled oil (petroleum products) under the Superfund Law because of the “Petroleum Exclusion” clause in the law.

Section 101(14) of the Superfund Law specifically excludes “petroleum, including crude oil or any fraction thereof” from the definition of “hazardous substance”. You can only be liable under the Superfund Law if you release hazardous substances to the environment.

Now – does that mean BP is off the hook completely? Not at all. BP is liable under the Clean Water and the Oil Pollution Act – just to name a few environmental laws.

Read my earlier blog on BP’s potential liability.

Writing your Audit Report

There is a disturbing trend in corporate America these days. Many reports are presented in the form of a PowerPoint presentation with 10 or more dreaded bullet points per slide.

If you are thinking of presenting your audit report in one of those awful PowerPoint presentations, DON’T!

Always present your audit results in a concise (not truncated bullet points) written format with full sentences. Why? Because you want your readers to understand your findings and do something about them.

A bunch of truncated and abbreviated bullet points will put your audience before you in a coma and when those awful bullet points are passed on down to the people who will be implementing your recommendations, they will not understand them.

Read this blog I wrote awhile back on presentations.

Is BP’s spilled oil a hazardous waste?

RCRA regulation 40 CFR 261.4(b)(5) states that “drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy” are solid wastes that are NOT hazardous wastes. In other words, they are exempt from RCRA regulations.

The key term is “associated” or “uniquely associated” as EPA later clarified. The rule of thumb EPA uses to determine if a waste is “uniquely associated” with oil and gas exploration and production is that the waste has to meet either one of the two following conditions:

  1. The waste came from down hole (brought to the surface during oil, gas or geothermal energy exploration, development or production operations).
  2. The waste was generated by contact with the oil, gas, or geothermal energy production stream during the removal of produced water or other contaminants from the well or the product.

Based on this interpretation, the crude oil that has been releasing from the BP exploration well a  mile beneath the ocean would be exempt from RCRA regulations. However, note that these are federal exemptions. Individual states are free to adopt more stringent regulations or reject the federal exemptions altogether.

Key Elements of an Effective Environmental Management System

In its “Compliance-focused Environmental Management System-enforcement Agreement Guidance” document dated December 2001, EPA outlines the 12 elements of an effective environmental management system.

The US EPA model includes 12 elements which are summarized below:

  1. Environmental policy.
  2. Organization, personnel and oversight of EMS
  3. Accountability and responsibility
  4. Environmental requirements
  5. Assessment, prevention and control
  6. Environmental incident and noncompliance investigations
  7. Environmental training, awareness and competence
  8. Environmental planning and organizational decision-making
  9. Maintenance of records and documentation
  10. Pollution prevention
  11. Continuing program evaluation and improvement
  12. Public involvement and community outreach.

Of all these 12 key elements, three of them are paramount. The first one is accountability. For an EMS to be effective it must have accountability. There must be a system within which bad behaviors by employees are penalized and environmentally proactive actions are rewarded. Without accountability on both end of the spectrum, employees may falsify reports due to fear of management retribution. There would be no incentive for employees to identify environmental problems and suggest solutions.

The second key element of an EMS is program evaluation and improvement. An effective EMS must provide for periodic independent auditing of environmental functions with well defined procedures to correct any deficiencies that are uncovered in the audit. It is pointless to go through an elaborate auditing process if there’s not going to be a well -defined set of procedures to follow through with remedial actions. Without follow through, the audit would just be a meaningless paper exercise. Read my earlier post on what happens when you fail to implement your own audit findings. By the way – do not use audits to establish an attorney-client privileged condition in order to hide environmental noncompliance. This will not work since only the actual audit report itself is protected under attorney-client privilege and not the underlying facts.

The third major key element is thorough investigation of any environmental incident in a timely manner. An effective EMS should immediately trigger a thorough investigation when an environmental incident occurs. Such investigation should be designed to find the root causes of the incident and to demonstrate promptness and completeness in your responses to the incident.

One last point:  Whatever environmental management system you may use, it needs to be enforced by management at all levels. Like all environmental plans, your EMS must be performance-based. Having a well written EMS document is just a start. It is meaningless if it is not communicated to all your employees and enforced throughout the organization.

Weekly inspection of your waste storage area

If you store your hazardous wastes at a central storage area (also referred to as central accumulation area) you are required by law to inspect it weekly. 40 CFR 265.174 requires the generator to “inspect areas where containers are stored, at least weekly, looking for leaks and for deterioration caused by corrosion or other factors”. You can set up a very simple weekly inspection log to keep track of your inspections. The key is to keep it SIMPLE.

The following is an excellent example of such a inspection log – taken from Cahill’s “Environmental Audits”:

Notice how the two incidents of problem were noted and actions taken in a timely manner. The acid waste found in a leaky drum on 5/3/93 was pumped into a new drum on 5/7/93. The missing bung found on 5/24/93 was replaced on 5/28.

This is the way it is supposed to be done.

New Mortal Sin!

Are you aware that polluting the environment is now officially a mortal sin according to the Catholic Church?

Bishop Gianfranco Girotti, head of the Apostolic Penitentiary, the Vatican body which oversees confessions and plenary indulgences, was quoted in the Vatican newspaper as saying the following:

“You offend God not only by stealing, blaspheming or coveting your neighbour’s wife, but also by ruining the environment, carrying out morally debatable scientific experiments, or allowing genetic manipulations which alter DNA or compromise embryos,” he said.

So think twice before you dump that 55-gallons of toxic waste in your neighbor’s backyard.

Other new mortal sins also included taking or dealing in drugs, and social injustice which caused poverty or “the excessive accumulation of wealth by a few”.