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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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:
- Environmental policy.
- Organization, personnel and oversight of EMS
- Accountability and responsibility
- Environmental requirements
- Assessment, prevention and control
- Environmental incident and noncompliance investigations
- Environmental training, awareness and competence
- Environmental planning and organizational decision-making
- Maintenance of records and documentation
- Pollution prevention
- Continuing program evaluation and improvement
- 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.
The US Chemical Safety Board (CSB) conducts chemical accident investigations and issues findings and recommendations. Several years ago, it conducted an investigation on a refinery explosion in Texas that killed 15 and injured 180 persons. Here are some of its findings:
- “Cost cutting, failure to invest and production pressures” from senior management impaired process safety performance at the refinery.
- “Reliance on low personal injury rate” as a safety indicator failed to provide a true picture of process safety performance.
- There was a “check the box” mentality at the plant where people simply just checked off on safety procedures even though they had not been completed.
- “Personnel were not encouraged to report safety problems and some feared retaliation for doing so.”
- There were “numerous surveys, studies and audits identifying deep-seated safety problems” but management’s response was often “too little, too late”.
We can all learn from these fatal mistakes.
The issue of reward structure at manufacturing facility is a tricky one. Many companies offer bonuses to middle managers for meeting production deadlines. Fewer companies offer similar rewards for excellence in safety. And when they do offer reward on safety, it often pertains mainly to personal safety and not process safety. That is understandable since it is harder to quantify process safety. There are lots of safety indicators for personal safety.
One of the findings by the CSB was that the refinery relied too much on its low personal injury rate as a false indicator that the process was safe. Just because people are not getting injured working next to a building that is about to collapse does not mean that the building will not collapse.
Measuring the wrong thing is worse than not measuring anything at all.
Another fatal mistake this refinery made was that it failed to act on the findings of its own numerous studies and audits. What is the point of doing all these audits if you are not going to fix the problems?
The “check the box” mentality at this refinery is most likely a result of the lack of ownership and training on the part of the employees. If an employee does not feel that he is part of the safety process and does not understand the rationale behind a long check list that he is given to complete, he is likely to just check them off. That’s just human nature.
We can all learn from these mistakes.
In my earlier posts, I wrote about the perils of cut-and-paste emergency response plan and the feelings that BP workers were cutting corners before the accident happened. Facts have since proven me right.
Watch this video from a Congressional hearing where it was discovered that the regional emergency response plans for many major oil companies (Exxon, Chevron and BP) look eerily similar and they all have identified walruses as an animal that would be affected by an oil spill in their Gulf of Mexico Plans. So there was a lot of cutting and pasting going on among the companies.
In another hearing, emails from BP engineers obtained by Congressional staff show there was evidence that they were cutting corners because the production well was behind schedule and the delay was costing the company thousands of dollars a day. The big irony is that the delay cost turned out to be a chum change in comparison to BP’s eventual financial liability.
Here is a video of a BP employee’s sworn testimony before Congress on what happened before the explosion.
What are the lessons we learn from this: Don’t cut-and-past your emergency plans. Don’t cut corners to buy time and “save” money and don’t write emails if you don’t want the world to read them.
The massive oil spill from BP’s offshore drilling rig began on April 20, 2010. It is now officially the worst environmental disaster in U.S. history.
There will be government investigations into what caused the accident and how it could have been prevented. The federal government has initiated a criminal probe into the accident and a Presidential Commission has been formed to look into the root causes of the incident. Someone will probably end up in jail.
What can we learn from this environmental disaster now? Here are some things that we know for sure at this point.
There is no such thing as a fail-safe system. Engineers and experts have assured the public repeatedly that an accident of such magnitude could never happen or are extremely unlikely to happen. Well it happened. The experts have been proven wrong. In fact BP’s 582-page emergency plan entitled “BP Gulf of Mexico Regional Oil Spill Response Plan” dated June 30, 2009 does not contain specific plans to deal with an accident of this magnitude. According to the plan, the TOTAL worst case discharge from an uncontrolled blowout from an exploratory well off shore was 250,000 barrels. The low estimate from the federal government on the amount of oil spilled is around 20,000 barrels per day. That’s 600,000 barrels per month and the spill began on April 20 with no end in sight.
There was no detailed discussion on how to stop a deep water blowout in the response plan. There were no Plan A, Plan B or Plan C outlined in the plan to address this magnitude of a spill. There was no mention of “Top Hat” or “Top Kill” in the plan. That’s why it has taken BP so long to stop the blowout. In fact, the Financial Times of London quoted BP’s CEO on June 3 as saying it was “entirely fair” to criticize the company’s preparations. The CEO went on to say that “what is undoubtedly true is that we did not have the tools you would want in your tool kit.”
The second thing we know is that too many emergency response plans contain a lot of fluff and extraneous material just to make them look substantive and impressive. One would have thought that a 582-page document would have the room to cover ALL possible worst case scenarios – including a blowout of a size that matches what actually happened. But that was not the case.
The 582-page plan was prepared by outside consultants. There is evidence that parts of the BP plan contain boilerplate languages used by other plans elsewhere. One example that has been cited by the media and much to BP’s embarrassment is that the BP plan actually lists walruses as among the Gulf of Mexico’s sensitive biological resources (see section 11 of the report). We all know that walruses live in the Arctic and sub-Arctic regions. They simply do not live in the balmy waters of the Gulf of Mexico. The fact that no one has caught this glaring mistake in the plan during the review process should be a cause of concern. The consultants who prepared this plan has offices in Alaska. A reasonable person could reasonably infer that the reference to walruses came out of a spill response plan that had been prepared for the frigid waters off Alaska. Cutting and pasting did not work this time around. It seldom does, It also tells us that the regulatory agencies responsible for reviewing the BP plan missed the mark by a wide margin.
So what else does this 582 page plan tell us? Size does not matter. It is the content and specifically local contents that really count. Despite its massive volume, the plan contains none of the different remedies that BP has actually tried out since the spill. One valuable lesson we learn from this disaster is that next time when we prepare a spill response plan or a contingency plan we need to focus on site-specific environmental conditions and not pad those plans with boilerplate cut-and-paste languages and fluff. All that flowery language in its 582-page has not helped BP plug that hole. Another valuable lesson we learn is that if we engage the services of an outside consultant or contractor to write our plan, we need to READ it carefully before sending it on to the agencies.
One final lesson we have learned is that if we spend a lot of money to develop a new manufacturing process to make a new widget, we need to also spend some money on how to control the pollution coming out of this new process. That’s one thing the oil industry has failed to do. It spent billions of dollars developing new deep water oil drilling technology without considering new technologies to deal with spills at such great depths.
Have you ever wondered why we never wash our rental cars before we return them to the rental company?
Because we don’t own the rental cars!
The same goes with writing environmental plans. If the employees who are responsible for implementing the plan (SPCC, stormwater, RCRA contingency, etc.) have not been involved in the development and preparation of the plans in any way, they are not going to have ownership of the plans and they are not likely to implement them.
Remember: Many of these plans (especially SPCC) are perfromance-based. That means if they are not implemented as written, you can end up with a violation.
Get your employees involved in some fashion before you finalize your palns. Have them review the draft. Get them involved.
Here are nine things you need to keep in mind about the Spill Prevention Control and Countermeasure Plan – commonly referred to as the SPCC Plan.
1. If you have more than 1320 gallons of oil (any kind of oil) and you have the potential to impact navigable waters of the United States, you must prepare an SPCC plan. For example, if your facility is anywhere close to a storm water drain, you have the potential to impact navigable waters.
2. Recent changes to the EPA regulations require you to only count containers that are 55 gallons or larger in capacities towards the 1320 gallons threshold.
3. Plant management must sign its Plan indicating it is prepared to commit financial resources to implement the plan. If your plan is not signed by management, you do not have a plan. EPA inspectors will always look for the signature.
4. You can do self-certification – without the signature of a professional Engineer – if you have less than ten thousand gallons onsite and you have not spilled more than a thousand gallons within 12 months in the last 3 years.
5. You must have an SPCC plan if you store more than 42000 gallons of oil in underground storage tanks.
6. SPCC plans must be implemented by July 1, 2009.
7. You must have secondary containment for your oil storage area. Containment can take the form of a dike, berm, or natural contour. The idea is to contain any spilled oil and keep it from reaching navigable waters.
8. Do not count oils that you do not own or control For example, do not count transformer oils in a substation on your property IF you are neither the owner nor operator of that substation.
9. Keep your plan simple and do what you say you are going to do. Never make commitment that you cannot keep. EPA inspectors will always look for evidence of implementation. For example, if you say in your plan you are going to do weekly inspection of your facility, the EPA inspector will be looking for a weekly inspection checklist from you.
There are a couple of things to keep in mind about your environmental plans.
The first thing to remember is that many plans are “performance based”. It means that it is not sufficient to say what you are going to do in a plan, you must actually do it! The SPCC (spill prevention control and countermeasures) plan is a classic example. If you – or the consultants who prepared your plan – say you are going to do weekly inspection of your oil storage area, you are expected to have a weekly inspection checklist to show the EPA inspector. The agency will always look for “evidence of implementation” on your part. So if you can’t do it, don’t put it down in your plan. The same goes for RCRA contingency plans, and storm water pollution prevention plan.
The second thing to remember is that you must sign and date your plans and keep them current. Many facilities have been cited for not having their SPCC plan signed off by their plant management. They also get a citation if the lists of personnel in the plans are not current.
The third thing to remember is to keep your training records up to date. Regulatory agencies have this saying: “If there is no training record, the training never happened.”
These are the most commonly cited violations because they are easy for the inspector to uncover.
Every business that stores hazardous wastes on site are required to have an emergency response plan. If you are a small quantity generator – one that generates less than 2200 lbs (approximately five 55-gallon containers) each calendar month – you do not need to have a WRITTEN plan. But you still have to have a plan.
An emergency response plan provides answers to the following questions:
- Who is in charge?
- Who are you going to call?
- Where can you find the emergecny response equipment?
- Do you know how to use the equipment?
Here is a short video clip from the California Department of Toxic Substances Control (DTSC) on this topic. Very instructive and straight forward. Enjoy the video.
EPA Region 9 and the Los Angeles Regional Water Quality Control Board conducted on-site audits of City of Los Angeles’ and City Long Beach’s municipal storm water programs and conducted 55 individual storm water inspections of port tenants in May 2007.
As a result of this effort, on November 9, 2007, EPA issued an audit report and 20 Administrative Orders to facilities at the Ports of Los Angeles and Long Beach for being not in compliance with California’s Industrial General Permit.
One of the facilities was cited for:
Not identifying a pollution prevention team in its storm water pollution prevention plan (SWPPP)
Not maintaining sampling records of monthly visual storm water discharge observation
Not adequately implementing Best Management Practices (BMP) as identified in its SWPPP. In this case, the facility lists good housekeeping as a BMP. And yet the EPA inspectors observed significant amount of trash and white
material on the ground at a location that drains toward the storm drain. There were also evidence of tank overfilling and spillage of glycol and latex paint.
These are common violations for many SWPPPs because facilities often ignore the written plans and fail to IMPLEMENT them. It is very easy for an inspector to look at the written plan and compare it to reality. More often than not, the written words and reality fail to match.
The issuance of 20 Administrative Orders by EPA is convincing proof that the agencies always LOOK for evidence of implementation when it comes to environmental plans such as SWPPP. It is NOT sufficient to just hire some consultants to prepare a nice looking plan for you. You have to actually do what the consultants have put into the plan.
So always manage your consultants and make sure they don’t put something in your plan that you can’t implement. Remember: they get paid whether you implement the plan or not. Work with the consultants and your staff who will be implementing the plan to make sure your staff has ownership of that plan.
Without ownership, it is likely no one will implement the plan.