Category Archives: Environmental Management System

In this category, we discuss how and why people set up an EMS.

Demystifying “Environmental Sustainability”

There has been much talk over the past few years about enviornmental sustainability. Everyone is talking about it. Even people with degrees in French Literature are talking about it! Conferences are held on environmental sustainability. There are hundreds of definitions of sustainability and yet no one seems to understand what it really means. So-called experts are coming up with “metrics” and “indices” as new ways to measure sustainability and none has universal acceptance.

Sustainability is the new environmental buzzword of this decade.  What exactly is it?

According to EPA, sustainability is based on a simple principle:  “Sustainability creates and maintains the conditions under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic and other requirements of present and future generations”.

What this definition says is that as we make our products, we should make sure that there is as little net negative impact on the environment as possible. A good example to illustrate this concept is to look at our savings account in the bank. If we have $1000 in the bank and its pays 3% interest a year, the sustainable way to manage this bank account would be to spend no more than $30 a year. On the other hand, if we were to draw down the principal amount by spending more than $30 a year, we would deplete the account over time and there will be nothing left for our children. It would not be a sustainable account.

Think of nature as one gigantic bank account. As we make our products, we need to make sure that the rate at which we take something away from nature is no faster than nature’s own rejuvenation rate. For example, if we discharge too much pollutants to a river, the river may not be able to assimilate the pollutants in time and the net results would be a depletion of dissolved oxygen in the water and fish kill. The river in this example is not being sustained and the practice of discharging pollutants into this river is not sustainable.

This concept of “sustainability” is not new at all. Regulatory agencies’ permitting programs have been taking sustainability into account for years. In fact, the entire premise behind permitting is sustainability. The amount of pollutant you are allowed to discharge into a stream under a permit is entirely dependent on the assimilative capacity of that stream. Your permit conditions demand that.  If there are too many sources of pollution going into a particular water body that is under stress, the Clean Water Act requires that a waste load allocation scheme be set up to regulate how many sources can discharge how much pollutants into that body of water.

On the air side, if we wish to build a new power plant in a non-attainment area (i.e. where the National Ambient Air Quality Standards are not being met at the time), the agency will require us to “offset” our new pollutant by removing more than the new amount from an existing source under the Clean Air Act’s New Source Review Program. For example, if we wish to emit 1000 tons of new soot into the atmosphere in Los Angeles, we would have to either purchase an existing plant that is currently emitting 1500 tons of soot and shut it down or purchase emission credit in the open market. That’s the Clean Air Act’s way of ensuring sustainability. You must remove from the existing inventory more than what you plan to emit.

If we plan to build our new power plant in a city where the air is clean (an attainment area), we would have to get a PSD (Prevention of Significant Deterioration) permit from EPA to demonstrate that our new power plant will not jeopardize the attainment status under the Clean Air Act. We will have to put in the most advanced pollution control equipment to do that and demonstrate through computer modeling that the new plant would not cause the area to be re-classified as non-attainment. That’s another example of sustainability.

The above examples also illustrate the two main approaches to environmental sustainability, namely, “waste minimization” and “pollution prevention”. These concepts have been around for years as well! Every manager knows that if he can find a way to make his products by generating less wastes and causing less pollution, he will save money in the long run.

Years ago, the canning industry converted from making three-piece cans with lead soldered side seams to making two-piece cans with water-based sealing compound for the same sustainability reasons. The water-based sealing compounds generates no hazardous wastes and the whole process causes a lot less pollution.

If you are doing a decent job in waste minimization and pollution prevention, you are well on your way to environmental sustainability. You don’t need any fancy three-dimensional charts or metrics to tell you that.

So the next time someone asks if you are practicing “environmental sustainability”, tell him about what you are doing in waste minimization and pollution prevention.

Or ask him: What else is new?


Prosecutorial discretion – a tale of 2 companies

In my last blog, I discussed the factors an agency such as EPA would use to determine if it wants to proceed with criminal investigation. That’s step one of a two-step process. Once an agency completes its investigation, it may then refer the case to the prosecutors for prosecution.

Will the prosecutor exercise its prosecutorial discretion? That’s the second step.

The best way to demonstrate how a prosecutor decides whether to prosecute a case or not is by the following example of a tale of two companies.  The US Department of Justice issued a memo some time ago outlining the factors a US Attorney should consider in targeting a company for criminal prosecution of environmental crimes.

The memo gives the examples of two companies – Company A and Company Z. A tale of two companies.

Here is what Company A does:

1. It regularly conducts a comprehensive audit of its compliance with environmental requirements.

2. The audit uncovered as information about employees disposing of hazardous wastes by dumping them in an unpermitted location.

3. An internal company investigation confirms the audit information. (Depending upon the nature of the audit, this follow-up investigation may be unnecessary.)

4. Prior to the violations the company had a sound compliance program, which included clear policies, employee training, and a hotline for suspected violations.

5. As soon as the company confirms the violations, it discloses all pertinent information to the appropriate government agency; it undertakes compliance planning with that agency; and it carries out satisfactory mediation measures.

6. The company also undertakes to correct any false information previously submitted to the government in relation to the violations.

7. Internally the company disciplines the employees actually involved in the violations, including any supervisor who was lax in preventing or detecting the activity. Also, the company reviews its compliance program to determine how the violations slipped by and corrects the weakness found by that review.

8. The company discloses to the government the names of the employees actually responsible for the violations, and it cooperates with the government by providing documentation necessary to the investigation of those persons.

According to DOJ, Company A would stand a good chance of being favorably considered for prosecutorial leniency, to the extent of not being criminally prosecuted at all.

At the opposite end of the scale is Company Z, which does the following:

1. Because an employee has threatened to report a violation to federal authorities, the company is afraid that investigators may begin looking at it. An audit is undertaken, but it focuses only upon the particular violation, ignoring the possibility that the violation may be indicative of widespread activities in the organization.

2. After completing the audit, Company Z reports the violations discovered to the government.

3. The company had a compliance program, but it was effectively no more than a collection of paper. No effort is made to disseminate its content, impress upon employees its significance, train employees in its application, or oversee its implementation.

4. Even after “discovery” of the violation the company makes no effort to strengthen its compliance procedures.  For example, If the company had a long history of noncompliance, the compliance audit was done only under pressure from regulators, and a timely audit would have ended the violations much sooner, those circumstances would be considered.

5. The company makes no effort to come to terms with regulators regarding its violations. It resists any remedial work and refuses to pay any monetary sanctions.

6. Because of the noncompliance, information submitted to regulators over the years has been materially inaccurate, painting a substantially false picture of the company’s true compliance situation. The company fails to take any steps to correct that inaccuracy.

7. The company does not cooperate with prosecutors in identifying those employees (including managers) who actually were involved in the violation, but it resists disclosure of any documents relating either to the violations or to the responsible employees.

Under these circumstances, leniency by the DOJ is unlikely.

The only positive action by Company Z is the so-called audit, but that was so narrowly focused as to be of questionable value, and it was undertaken only to head off a possible criminal investigation. Otherwise, the company demonstrated no good faith either in terms of compliance efforts or in assisting the government in obtaining a full understanding of the violation and discovering its sources.

Which company are you? Company A or Company Z?

A Blueprint for Environmental Compliance

Have you ever wondered why some companies never seem to get into trouble with the EPA or OSHA? You never see any bad press about them on TV or read about them in the newspaper. And then you see some other companies that seem to be constantly in trouble with the agencies for environmental violations. What sets these companies apart? Simple. The good companies do things that that bad companies don’t.


Here are some practical tips on how to avoid compliance nightmare.

  1. Make sure you have an environmental policy that is signed by the CEO and communicated to all your employees. You should post it on your company website. An environmental policy is a simple declaration by senior management on how it plans to conduct its business in the context of the environment. The latest buzz word is “sustainability”. It means do no harm to the environment and save it for the next generation.
  2. You should have a designated senior company officer whose job it is to oversee environmental and safety compliance. This person should have the confidence of senior management and can muster the necessary financial resources and institutional commitment to implement the company’s environmental policy and plans.
  3. Make sure that you have a simple and straightforward emergency response plan. The main purpose of such a plan is to tell your employees what they need to do when something goes wrong. It must be concise, realistic and easy to understand. Do not make the same mistake that a major oil company did with its Oil Spill Response Plan in the Gulf of Mexico that failed to identify the worse case scenario and was lacking in realistic responses. None of the efforts made by the company following a massive oil spill was contained in the original plan even though it was over 580 pages long.
  4. Make sure that your employees have ownership of your company’s environmental plans. In other words – the employees who have been charged with the responsibility of implementing an environmental plan should have been involved in some manner in the development of the plan. That is the only way they will have ownership of the plan and without ownership, nothing will be done.
  5. Be sure to perform environmental due diligence prior to shipping your hazardous wastes to your Treatment Storage and Disposal Facility (TSDF). Check up on their compliance history by going to EPA’s Environmental Compliance History Online (ECHO) webpage. Never cede this responsibility to your transporter. If you ship wastes to a site that turns into a Superfund site, your company could be responsible for the entire cleanup cost of that site.
  6. If you are planning on leasing a piece of property, make sure you perform a baseline environmental study on the site to identify any pre-existing conditions. In this way, when you return the leased property back to your landlord at the end of the lease, you only need to return it in the same condition that it was in when you started the lease.
  7. Always maintain a good, cordial and professional relationship with the regulatory agencies. Do not waste your limited financial and human resources in constant battles with the agencies. Always negotiate with them in good faith.
  8. Train and retrain your employees. The companies that stay in compliance are the ones that make sure their environmental professionals receive the necessary training to do their job. The companies that are constantly having environmental violations are in that situation because their employees are not trained and equipped to do the job.
  9. Never automatically go with the lowest bidders when hiring vendors or consultants. Always go with the most qualified contractors to ensure compliance with environmental laws and safety standards.
  10. Designate an employee whose job is to review Material Safety Data Sheets prior to storing any new chemicals. Many chemical accidents are caused by mis-placement of new chemicals that are not compatible with existing ones.
  11. Stay on top of emerging new environmental regulations by subscribing to agencies’ free e-mail services. You can also subscribe to commercial services to keep abreast of the latest regulatory developments.
  12. Always know your chemical spill reporting requirements before the actual spill occurs. Many states have additional spill reporting requirements that are more stringent than the federal requirments. Do your homework. You should match your inventory of chemicals against EPA’s List of Lists and determine the reportable quantities of each of these chemicals. So when you actually do have a chemical spill in the middle of the night, you will know exactly if the reportable quantity has been exceeded thereby triggering a reporting obligation.
  13. Instruct your employees to never lie to an agency inspector. Tell them they should always be forthright with an inspector. Answer all questions truthfully when asked but never volunteer any information or speculate.
  14. Be very careful with your e-mails. Always assume that your e-mails will appear on the front page of your local newspaper the next morning. If you do not want people to know about something, don’t put it in your email. For example, if you have just conducted a mock inspection of your facility in anticipation of an actual inspection and you have found a number of violations, it is absolutely not necessary for you to send out a broadcast e-mail to everyone stating that you have uncovered contained violations. What you want to do is to focus on fixing the problems you have uncovered rather than broadcasting your problems to the world in writing. The same strategy should apply after you have had a bad inspection. Instead of sending out an e-mail to everybody stating that the inspector has found numerous violations during the inspection, you should send out an e-mail to everybody reminding them of all the things that they should be tending to without making any reference to the inspection. In that way you achieve the same goal-getting people to improve their performance-without admitting to those violations.
  15. Always follow up on your internal audits. Never perform an internal audit unless you have the financial resources and management commitment to fix any problems that might come up during the audit.
  16. Voice objection as soon as you are made aware of potentially illegal activities within your organization. If anyone within your organization – especially at the senior management level -should suggest any kind of illegal activities, you must speak up against it forcefully. Remember: silence means acquiescence.

If you follow the above suggestions, you should be able to avoid environmental compliance nightmare.

How Green Do you Want to be?

As we all know, there are hundreds – if not thousands – of environmental standards out there. Every environmental group has its own idea of what is good for the environment. And every group wants its own standards to be adopted by as many companies as possible.

If a company does not act now, the great danger is that some one may end up defining a set of standards for the company. Your competitors may define it for you.

There is an excellent article in the November 2010 issue of Harvard Business Review on this topic. It is entitled “Winning in the Green Frenzy”. In this article, the author talks about 4 basic approaches a company can take to survive in these uncharted water and uncertain climate.

A company can adopt existing standards if it finds that those standards are compatible with its own corporate culture and philosophy.  It can also co-op an emerging set of standards by working with the organization to influence the development of these standards. It is better to be part of the solution than having the solution ramped down its throat. Another approach is to define your own standards and make your competitors follow your standards. The fourth approach is to break away from existing standards and declare that yours is much better.

For example, if your gadget is very energy efficient and yet your industry does not seem to place a lot of emphasis on energy usage, you can break away from such standards and set new standards that emphasize energy usage. In that way, you are forcing your competitors to compete with you on your terms and against your strength.

Remember these four options: adopt, co-op, define and break away. How green do you want to be? It is up to you if you act sooner rather than later.

Check out our 2-day environmental seminars for 2011.

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.

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.

How to do an environmental hazard analysis

As environmental professionals, there is much we can learn from our colleagues on the health and safety side.

An essential part of an effective health and safety program is job hazard analysis. The purpose here is to identify safety issues that may be present during the performance of a specific task. The hazardous analysis takes the form of a series of five questions:

  • What can go wrong?
  • What are the consequences?
  • How could it happen?
  • What are other contributing factors?
  • How likely is it to happen?

For example, if you were to perform a job hazard analysis at a job where an operator is working with a stationary rotating blade, you would ask the question “What can go wrong?”. The operator’s sleeve could get caught by the rotating blade. What are the consequences? His arm or wrist could be amputated. How could it happen? There are no machine guard to prevent such accident. What are other contributing factors? The operator may be fatigued due to long working hours. He may be careless and not paying attention to the blade. Or he may be distracted by talking to his fellow employees while working. How likely is it to happen? Without machine guards or other forms of engineering control, such accident is likely to happen sooner rather than later.

You can apply the same job hazard analysis approach to your environmental program. Let’s call it environmental hazard analysis. Here are a couple of examples:

Example 1: You walk through the plant and you notice some severe signs of corrosion at the base of one of your aboveground storage tanks where you store some pretty hazardous chemicals.  You ask the five questions:

What can go wrong? The structural integrity of the tank can fail.
What are the consequences? The tank could rupture and cause a massive spill of hazardous chemicals.
How could it happen? The tank could fail if no action is taken to address the corrosion of the tank.
What are other contributing factors? Strong wind, minor earthquake or any external forces on the tank could contribute to its structural failure.
How likely is it to happen? It is likely to happen if nothing is done.

Example 2: You are reviewing your plant’s Spill Prevention Control and Countermeasures (SPCC) plan and notice that there is no record of any inspection being carried out even though the plan calls for weekly inspections. You ask the five questions:

What can go wrong? The SPCC plan is not being implemented as planned.
What are the consequences? Spills could have occurred without anyone noticing it. An EPA inspector may issue a citation against your plant for failure to implement it.
How could it happen? The inspection team was not made aware of the weekly inspection requirement.
What are other contributing factors? The people responsible for implementing the plan were not involved in its development. There is a lack of ownership. There is a failure of communication.
How likely is it to happen? The failure to implement the plan is likely to happen if employees are not properly trained and involved in the plan.

Example 3: You notice that there are drums of hazardous waste in your central storage area that do not have the proper labels on them. The ones with labels do not have accumulation start dates. You ask the five questions.

What can go wrong? You can exceed your maximum storage time limit without knowing about it.
What are the consequences? You could be fined for operating a hazardous waste facility without a permit if an inspector finds out.
How could it happen? The operator had not been told about the labeling requirements.
What are other contributing factors? There is no one individual responsible for making sure the label is on the container and it is properly filled out. The weekly inspection has not been carried out or it has not been done properly.
How likely is it to happen? It is very likely to happen.

This simple environmental hazard analysis can help you identify small problem before it festers into a much larger and more costly one. Once you have determined that the problem is likely to happen, you need to take immediate steps to stop it. It is like doing an internal audit. There is no point in doing an audit unless you have the commitment and resources to fix the problems you uncover.

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