FATAL FLAWS & MYTHBUSTERS [aka Truth or Consequences]

If you think education is expensive, try ignorance.   – Will Roger

Since Vanguard is a national company that manages compliance for more companies than any other organization in the U.S., we hear the same myths and misconceptions over and over, which often yield disaster as a result of enforcement inspections.  While the symptoms vary, almost all of them expose their company to great risk to enforcement penalties which run as high as $32,500 per day on environmental issues, and $70,000 per violation on occupational safety and health matters.  We are continually shocked at how many EHS Managers, Compliance Officers, Sr. Management, and Company Stakeholders, assigned to such serious matters as regulatory compliance, appear to be complacent about arguably their greatest corporate risk, mostly by simply failing to find out the least they need to know about regulatory compliance.  It would appear they’d prefer to wait the fate of enforcement penalties, steep attorney fees, 1-3 years of litigation, and the onslaught of government intervention by getting stuck on so many inspectors’ hit lists.  This can’t be true, can it?    Here is a sampling of those most oft-heard, but misguided excuses for taking no action whatsoever.  

·         Our insurance company covers our compliance;

·         Our hazardous waste disposal firm covers our compliance;

·         Our corporate office back east / out west (wherever) covers our compliance;

·         The local university covers it, so we’re fine.

·         We use the state’s free OSHA consulting program, so we’re exempt;

·         We’ve got it covered as far as we know.

Myths and Misconceptions, as below, are also prevalent.  They are generally used as a means of denial, but without confirming such responses through the slightest bit of research.  A sever dose of reality (referred to as stun gun compliance) is more than most companies can withstand when an inspector comes on the scene.  This relegates one's Sr. Management to being blindsided with enforcement penalties they never fathomed were coming.  Such flawed thinking toward regulatory compliance generally turns Sr. Management into the proverbial "canary in a coal mine."

MYTH: We have no hazardous chemicals (when their MSDSs reveal otherwise);

MYTH: We don’t exceed the thresholds (without knowing which thresholds would trigger compliance activities, especially when the Aggregate Total Ruling is applied to the 10 laws requiring its execution);

MYTH: We only fabricate metals, so we don’t have anything to worry about;

MYTH: We’re a Small Quantity Generator, so we’re exempt;

MYTH: We use water-based paints (or inks), so we don’t have anything regulated;

MYTH (or generalizing): We believe in good safety and health practices, so we must be in compliance;

MYTH: We run a clean operation, so we must be in compliance.

MYTH: We’re too small, so we’re off the radar (without knowing the minimum employee requirements of each of the laws imposed upon Industry);

MYTH: We’re not a manufacturer, so we’re exempt (without knowing that most of the laws require compliance of manufacturers and non-manufacturers alike; 

TRUTH OR CONSEQUENCES
(COMMON MYTHS & MISCONCEPTIONS IN EHS/RISK MANAGEMENT)

Unlike the Lord…

Enforcement Inspectors do not forgiveth those who know not what they do.

The information here comes from over 15 years of field work in the Environmental, Health, & Safety (EHS) Compliance field through visitation of over 100,000 companies in business and industry in the U.S., Canada, & Mexico.  It is hoped that it provides a bit of assistance in eliminating myths and misconceptions or resolving issues in the minds of individuals who are making an effort at keeping their companies in a proactive posture when it comes to their own compliance. 

These “myths” are generally bandied about by someone operating from a very limited framework of knowledge about compliance.  This is surely not to imply that such an individual is stupid, because usually the comment in the mind of the speaker is based on something that just might sound or seem logical from his perspective, especially if it’s the kind of statement that could possibly keep him from complying with a given law or laws. Every businessperson would love to be relieved from compliance (tax relief and compliance relief are always good news, right?), so he might say anything to avoid compliance. But, how about that inspector who’ll visit someday?

If accurate information is not provided to rid us of  “stinkin’ thinkin’” (as Zig Ziglar has so aptly puts it), we’ll only be left with a false sense of security, only to have it blow up in our face someday upon the inspector's arrival.  Isn’t the heading of this chapter appropriately named…Truth or Consequences?  That says it all, huh?

It might also be wise to submit a basic disclaimer here that says, in most cases, the content below is factual, but it is not implied that the information presented here would be true in every single case, for every individual, given every law, and every jurisdiction.  The intent is to provide some basic information that could help someone understand compliance issues to a greater degree, thus helping them avoid non-compliance and the unnerving mishap of an enforcement inspection in which a company’s progress in “bottom line” issues suffer a major financial setback due to a lack of awareness on compliance matters.  Such a so-called “knock-out punch” happens everyday somewhere in America. Let it not be you that hears the oft-repeated phrase, “Ignorance is no excuse for the law.”  Simply stated, you can get in compliance, or you can rationalize it away with excuses, but you can’t do both.  Incidentally, the myths below are not offered in any order of priority.

1. MYTH.  I DON'T HAVE ANY HAZARDOUS SUBSTANCES (CHEMICALS) IN MY FACILITY.

MYTHBUSTER: You're probably referring to OSHA's definition of a hazardous substance in which they make a distinction between a hazardous and non-hazardous chemical. OSHA makes a distinction between "hazardous" vs. "non-hazardous," whereas the EPA considers practically everything "hazardous." The objectives of EPA laws are much broader and entirely different from the intent of OSHA.  OSHA's objective is one of safety and health for employees in the workplace, while EPA's objectives goes far beyond that to one of environment - air, land, and water - the community, the region downwind, plant and animal life, and even future generations.  So, the EPA defines a hazardous substance as almost "anything reflected in a Material Safety Data Sheet - Liquid, Solid, or Gas.”  The chemicals you have in your facility are definitely hazardous, depending on which of the some 50 federal compliance laws come into play.  But then you must also consider state, county, and local regulations, as well.  This gives new meaning to the term “regulatory maze.” 

2.  MYTH: WE DON'T EXCEED THE LEVELS (THRESHOLDS).

MYTHBUSTER: First of all it’s important to remember that virtually all the laws are based on chemicals, thresholds, and the mandates that govern them. It’s important to know just which law you’re referring to when making such a statement. Many laws have thresholds that go as low as 1 lb. and then the thresholds can change from one law to another, even on the same chemical due to the objectives of each law.  There are actually millions of variables when it comes to thresholds.  For example, there are 4 categories of thresholds:  1. Inventory thresholds...maximum amt. on hand any given day;  2. annual usage...how much chemical did you go thru over the course of an entire year;  3. emissions...how much did you release to the environment over the period of a given time - generally a year, but can be weekly, monthly, or quarterly;  4.  permissible exposure limits (pel's)...expressed in parts per million (ppm's).  The latter usually refers to Indoor Air Quality in which you must monitor for the action level which is exactly half of the PEL.  When you reach the action level on one or more chemicals, then you must develop an entire program to manage that problem in your facility.  In conclusion, it’s difficult for a facility to have any kind of chemical inventory as reflected in their MSDSs and not be exceeding some kind of threshold.  Be extremely cautious when you hear yourself saying, “We don’t exceed any thresholds.”

Two more things really important to understand about thresholds would be these:  1. the initial quantity that would require your accountability;  2. the aggregate total ruling.  The universal regulatory language says, "If you use, store, process, produce, manufacture, distribute, or import a chemically-oriented product, then you're accountable for all federal, state, county, and local laws  - as long as you have it in excess of household quantity or in concentrate form.  Household quantity would be like having a couple cans of W-D 40 at home in your garage.  But when you get a case of it and bring it into the workplace, you are required to have an MSDS and accountable for any and all EPA, OSHA, DOT compliance laws.  Concentrate Form, on the other hand, is a bit more obscure to understand.  Let's say you buy just a quart of Methyl Ethyl Ketone (MEK) and bring it into your facility.  Because it's really hazardous (aka a bad actor), this is what the EPA refers to as the "0 Threshold Amount.”  Now you are automatically accountable for executing the necessary due diligence for all the laws that relate to MEK.

It's extremely difficult to have a chemical inventory in a company where everything is maintained at household quantity and all chemicals are so watered down that they wouldn't require any accountability. 

3.  MYTH: WE DON'T HAVE ANY CHEMICALS.

MYTHBUSTER: It is common that people don't fully understand how a "chemical" is defined.  Many people think of a chemical as some form of "liquid in a pail."  But the U.S. Government establishes a "chemical" as ALL the constituents - liquids, solids, gases - that comprise a product utilized in a facility.  Since most people think in terms of products, rather than chemicals, they are unaware that there are an average of 3 chemicals for every product utilized as a part of the facility's operation.  A good regulatory guideline for projecting how many chemicals must be analyzed and tracked is:  MULTIPLY THE NUMBER OF MSDSs MAINTAINED WITHIN THE FACILITY BY THE FACTOR OF THREE.  THIS GIVES A FAIRLY ACCURATE PROJECTION OF THE CHEMICALS PRESENT IN THE FACILITY, AND THEREFORE, MUST BE ANALYZED FOR COMPLIANCE.  FOR INSTANCE,  3 CHEMICALS X's 75 MSDSs = 225 PROJECTED CHEMICALS THAT MUST BE ANALYZED AGAINST THE VARIABLES OF REGULATORY COMPLIANCE LAWS.  [Exception to guideline…Plating companies will have a factor of 1 ½ per MSDS and  cultured marble mfrs. will have a 2 : 1 factor;  and chemical &/or paint mfrs. will have raw materials (different from their finished goods) that have just about a 1 : 1 ratio because they're mixing pure chemicals together for the purpose of manufacturing a finished product. 

4. MYTH:  WE’RE NOT A MANUFACTURER, WE’RE ONLY A DISTRIBUTOR (WAREHOUSE – OR OTHER FORM OF NON-MANUFACTURER)

MYTHBUSTER:  This is actually good news, to a degree.  Your compliance responsibilities will be reduced because you’re not a manufacturer.  However, the government regulates EHS compliance by chemicals, processes, and human exposure to hazards in the workplace, rather than the nature of your business activity.  For instance, EPA’s SARA Title III (1986) established compliance requirements for manufacturers to begin by March of 1987 reflective of the previous calendar year.  Then, the same requirements, with very few exemptions, were established for NON-MANUFACTURERS to begin by March of 1988 (the very next year) for the previous calendar year. 

But also, please remember the regulatory umbrella phrase, “If you USE, STORE, PROCESS, PRODUCE, MANUFACTURE, DISTRIBUTE, OR IMPORT a chemically-oriented product – as reflected in your facility’s MSDSs – then you’re definitely accountable for many EPA, OSHA, & DOT laws.  Frankly, there are not many OSHA laws that will carry any compliance relief for non-manufacturers.  But true, the hazards will probably be less which, in turn, probably reduces your overall compliance responsibilities.

5. MYTH: EXCEPT FOR A FEW PAINTS AND FUELS, WE DON'T HAVE ANY CHEMICALS.  WE JUST FABRICATE METALS.

MYTHBUSTER:  Ah! METALS, one of an inspector’s favorite words, as in “GOTHCA!” In the metals industry alone, Vanguard serves over 200 clients across the country, so we've run into this misconception before. All metals are recognized as mixtures of chemicals, too.  They contain such chemicals (many of which cause cancer) as CHROMIUM, NICKEL, MANGANESE, MAGNESIUM, CADMIUM, COPPER, ZINC, LEAD, VANADIUM, ALUMINUM, AND MANY OTHERS.  All metallic chemicals are required for analysis, tracking, and reporting, except in the case of an "article of commerce" which removes some requirements from the facility.  As one EPA's top administrators shared with us when we were in Wash., D.C., it is not uncommon, for example, for an entire "battleship being repaired at dry dock" to become a part of a facility's requirements.  The American Institute of Steel Construction is an excellent source for this topic as they have published some helpful information for their membership regarding compliance issues regarding metals.  You may want to contact them directly or call Vanguard to secure a copy of an announcement about reporting metals under EPA’s Toxic Release Inventory. Also, you may want to locate a copy of EPA's list of metal chemicals and how they're regulated under Form R Reporting, which are also regulated under the Storm Water & Air Permitting laws, too.   Or, if you’re a movie buff, try renting, A Civil Action, starring John Travolta – or Erin Brockovich, starring Julia Roberts - for a jolt of compliance reality on metals.  Both movies will get you to thinking.

6. MYTH:  WE'RE A "SMALL QUANTITY GENERATOR" (or CONDITIONALLY-EXEMPT SMALL QUANTITY GENERATOR – KANSAS GENERATOR, if in KS) SO WE DON'T HAVE TO DO ANYTHING.  THIS STATUS MAKES US EXEMPT.

MYTHBUSTER: Now we know we can really help you.  We know that you don’t necessarily want to hear that you’re out of compliance; but we know you’d rather hear it from us than an inspector that just walked through your facility’s door.  The fact that you are any kind of generator states that you are using chemicals so hazardous, they happen to be regulated for hazardous waste disposal under EPA's Resource Conservation & Recovery Act (RCRA).  Here's the way people become mystified on this topic.  The word "small" is misleading. It just means your facility, as an SQG, is disposing of between 220 lbs. and 2200 lbs. of hazardous waste in any one month.  Unfortunately, if you're satisfying disposal regulations as a part of RCRA, it doesn't mean other laws don't apply to your facility.  It means exactly the opposite in most cases.   Actually, a typical SQG may have to comply with as many as 15 different laws from EPA, OSHA, and DOT.  It's important to know that hazardous waste generation is a key indicator that your facility will be regulated under many other laws.  If you even so much as whispered this myth to an inspector, you just told him you're out of compliance on at least a few laws because you've misinterpreted the definition of the word "small" in your generator status.  But don't feel bad about it, you're not the first or the last that will make that mistake.  The fortunate thing is that you discovered this through Vanguard.

7. MYTH:  OSHA (OR AN INSPECTOR FROM SOME OTHER LOCAL, STATE, OR FEDERAL AGENCY) WAS OUT HERE RECENTLY, AND THEY DIDN'T SAY ANYTHING ABOUT OUR OTHER COMPLIANCE REQUIREMENTS, SO WE MUST BE OKAY.

MYTHBUSTER:  You know, it’s upsetting the way inspectors come in and, by not saying anything, they leave the company with a false sense of security.  I believe strongly that inspectors should have to carry a written statement with them that informs people about what the scope of their visit entails and what its limitations are.  For instance, OSHA inspectors are generalists - they'll inspect for almost anything regarding a safety and health issue, but they have no authority on EPA or DOT matters, so they don't say anything about that since that's not the purpose of their visit, or even an area of their expertise.  EPA Inspectors, on the other hand, are very specialized and only inspect for their area of authority or assigned expertise.  An inspector from the EPA will come in on just one specific issue, and in many cases, cover a specific subsection of a law.  They won't delve into the other 12-15 laws from their very own agency, nor do they even let you know that the purpose for their visit does not somehow imply that you're either in or out of compliance on everything else your company may have to do.  One important thing, though, enforcement agents may compare notes about your facility with their colleagues in other levels of regulatory agencies (EPA and OSHA signed a "tipoff" pact in early 1991 in this regard), since they do not perform a one-stop inspection status report on all regulatory issues.  Remember, to assume your compliance is okay on several laws, just because an inspector found no flaws in the one area for his inspection, is faulty thinking.   

8. MYTH: WHY DOESN'T THE GOVERNMENT TELL ME THESE THINGS? THEY'VE NEVER CALLED ME OR WRITTEN ME.

MYTHBUSTER: Actually, they do, but probably not in the way you'd prefer.  The government can make a strong case it has told you all you need to know in the way the U.S. Congress and state agencies require them to tell you.  True, they probably haven't called you personally on the telephone.  But they have communicated in a number of ways.  The only one that really matters, though, is the Code of Federal Regulations (or the Canada Gazette for our friends in the North), and you're required to know the laws that affect your business if you're going to operate a company in the United States.  The 1947 Supreme Court decision of Federal Ins. Corp. v. Merrill states, "Everyone is charged with knowledge of the U.S. statutes at large."  This was the landmark case, which everyone now recognizes as: "Ignorance is no excuse!" In addition to the above, the three U.S. regulatory agencies - EPA, OSHA, DOT - and their state and local jurisdictions commonly and consistently do seminars and conferences to keep you abreast of the variables of the law.  They even consistently send you correspondence and publish their conference dates in newspapers and trade magazines.  Most associations have regulatory affairs managers and departments that assist their membership with regulatory compliance updates. Frankly, you'd probably have a rough time proving that the government hasn't informed you of the laws.  It would be unwise to use “the gov’t didn’t tell me” defense.

8. MYTH: THAT'S JUST FOR THE........."BIG BOYS" (BIGGER COMPANIES, OIL COMPANIES, MANUFACTURING COMPANIES, CHEMICAL COMPANIES, ANY KIND OF COMPANY OTHER THAN THAT OF THE PERSON DOING  THE TALKING).

MYTHBUSTER: This is one of those things that's relative.  For instance, a millionaire and an average wage earner both have to pay taxes…just to different degrees, right?  Well, companies both large and small have to comply with EHS laws, but the large ones are probably going to have to do much more.  It's important to understand that many of the regulatory compliance laws have no minimum limits on size or number of employees.  Here's a cardinal rule of compliance laws.  For any company that has a chemical inventory of any consequence, reflected in the facility's MSDSs, there are probably at least three laws holding the company accountable for due diligence and compliance - 1. EPA Environmental Compliance Reporting under SARA Title III, Sec. 301-312;  2. OSHA Hazard Communication (Employee Right-To-Know);  3. DOT's HazMat Employee Training.

9. MYTH: WE'RE NOT DOING ANYTHING WRONG!  WE'RE NOT POLLUTING OR DUMPING OR POURING THINGS DOWN THE DRAIN!  THE GOVERNMENT CAN'T BE CONCERNED ABOUT US!

MYTHBUSTER:  If this strikes a chord with you, then you’re probably a good corporate citizen.  But, unfortunately, that's not what drives EHS laws, even though it's certainly good you're not dumping, etc.  You see, if it all came down to "dumping" or out-and-out environmental crimes, the government's job of environmental protection and occupational safety/health would be a lot easier.  Virtually all the laws are based on chemicals in industry and almost all companies have chemicals.  The crux of the problem goes deeper than you think, and the government's scientists have been studying it for well over 50 years.  They've got more "significant studies from leading universities" than anyone could count.  Here's the challenge.  The U.S. is the strongest industrialized nation in the world.  Business and industry has become dominant in the U.S. for the past 125 years (that thing called the Industrial Revolution, you know?).  The manufacturing and non-manufacturing sectors of industry are actually polluting the environment through STANDARD OPERATING PROCEDURES every single day.  Well, you don't just shut this industrialized power down, but you've sure got to manage it - and this is what the government is doing through regulatory compliance laws.  Just the Standard Industrial Classifications, 2000-3999, alone are emitting as much as 10 Billion Pounds of TOXIC (not all chemicals - just toxic) CHEMICALS to the environment EVERY SINGLE YEAR!  So, no one said you’re committing environmental crimes.  But, you’d be breaking the law if you’ve read this far and you don’t think EHS laws somehow apply to your facility.

10.  MYTH: I THINK WE'RE IN COMPLIANCE. 

MYTHBUSTER:  The problem word is “think.”  As stated before, you don't necessarily want discover you're out of compliance, but I know you'd rather discover it through Vanguard than through an inspector, right?  We've found that well organized due diligence, backed up by defensible documentation, sends an enforcement agent on his way in the shortest time possible.  If your documentation is intact, the inspection should be a 10-15 minute coffee break for you and the inspector.  But, if you can't back up those deadly words "I think," he will exhaust much time building a case against you that will probably stick.  It's rare that a penalty is not forthcoming, once it's been placed before the Administrative Law Judge. 

11.  MYTH: NOBODY ELSE IS COMPLYING:

MYTHBUSTER:  Since Vanguard runs in these circles, we find a lot of companies making great effort on their compliance and, yes, quite a few that aren't.  But to say that nobody is complying is a stretch.  We know one thing: there are enough companies out of compliance that every 10 minutes, on the average, a company somewhere in the U.S. receives an enforcement penalty from the EPA, OSHA, or DOT.  So, if you've discovered a bunch of companies out of compliance, you can be assured they're going to get nailed, sooner or later.  But don’t use this as a rationale for non-compliance on your part, or you’ll become an unenviable recipient of the same Notice of Violation (NOV). 

12. MYTH: WE USE STATE UNIVERSITY FOR OUR COMPLIANCE.  WE GET IT FOR FREE.

MYTHBUSTER:  Be extremely careful in thinking you’re getting the entirety of  something so vitally important as your EHS Compliance covered for free.  Remember, too, academic professors and college students have very little, if any, experience in industry.  Can you imagine using an intern for heart surgery because it was cheap so he can get the practice?   Be cautious about getting something cheap or free, especially if it’s something that carries the repercussions of such massive enforcement penalties as EPA / OSHA laws.  Would you hire a college student to oversee your IRS / financial matters, even to the point of assigning him the task of filing your tax returns? Many innocent people in Industry are enamored with the good name of an institution, but never realize their compliance is being overseen by someone his other employer has forced to “moonlight” due to being paid low wages. Who is accountable for monitoring the efficacy of their managing our risk to enforcement penalties?  What is their benchmark for comparison in order to assure you that your EHS compliance is totally covered?  Are they giving you the complete scope of your site-specific compliance program and then backing their findings up with defensible documentation? Would such a 3^rd party organization be available in 3 yrs. for whatever regulatory obstacle or enforcement inspection may come or would they have graduated?  How credible would a 20 year-old college student appear on a witness stand as a part of a civil action against your company?  Does such an organization have professional liability (errors and omissions insurance)?  [Remember, there are four issues in which quality must not be compromised:  aircraft, heart surgery, IRS/tax matters, and EHS compliance.  Like the first three areas, EHS Compliance is not an area where “cheap equals quality.”]  In the final analysis, 

13.  MYTH:  IF THEY COME IN, THEY CAN HAVE THE KEYS TO THE COMPANY!

MYTHBUSTER: People generally make that statement when they're frustrated about the government.  The fact is that's exactly when you'll need your revenue-producing strength the most, because they don't come in and try to shut you down unless you're willfully threatening life - or dumping.  They'll only fine you relative to the amount they think you can painfully afford.  It's the litigation that gets you down after awhile when it drags out for 1-3 years.  So then, more than ever, you’ll need your cash flow-producing company to generate revenue to fund the system in which you got trapped.  After all, it’s the law.

 14. MYTH: WE'VE NEVER BEEN BOTHERED UP TILL NOW – WE’VE NEVER BEEN INSPECTED OR VISITED - WHY SHOULD WE BE CONCERNED?

MYTHBUSTER:  Actually, that sounds like a decent perspective, flawed as it may be.  All these laws have crept up on industry in just the last 7-8 years.  And during that time, we don’t figure you’ve been going home every Friday night to read the Code of Federal Regulations by the fireside.  So, if someone, like you, has been staying busy doing what they do best for that long or more, they can easily be oblivious to the laws and the penalties that go with them.  Since the late 80's and early 90's, a “fuse” for each law enacted began burning as a matter of when, rather than if, an inspector is going to pay you a vist.  Vanguard’s job, of course, is to douse the fuse.  If you’re not aware of all the laws, it doesn't mean they disappeared.  It means you're in jeopardy, perhaps unknowingly, but vulnerable just the same.

 15. MYTH:  NO ONE IS IN COMPLETE COMPLIANCE BECAUSE THAT'S NOT POSSIBLE.

MYTHBUSTER: You’re probably right.  But, boy, is that dangerous thinking? It's Vanguard's objective to help our clients on those laws that can deliver the "knockout punch."  That would be on those laws that would cost several thousand dollars in fines, attorney fees, too, and then would litigate for 1-3 years.  I think you can handle the $75 frayed wire kind-of-fine.  I just have a feeling you don't want to have to deal with the kind of setback that would ruin your financial progress or ruin everyone's Christmas bonus for the next 5 years.  Take care of the majors and don’t sweat the small stuff; but take care not to rationalize too quickly and be totally out of compliance on the majors.  Be proactive.  Don’t forget the line at the introduction of this piece…you can get in compliance, or you can rationalize, but you can’t do both.

 16. MYTH: WHEN A PERMIT IS GOOD FOR 5 YRS., WHY DO YOU HAVE TO REVIEW THIS COMPLIANCE ISSUE ANNUALLY?

MYTHBUSTER:  Now that's an excellent question!  You're exactly right.  Some permits are good for 5 years.  But an inspector expects all documentation to be no older than 1 year.  This represents current compliance.  Anything older than 1 year is considered obsolete.  So, Vanguard executes annual updates at a discounted price so you're never knocked out by an inspector because you had not kept your compliance up to date.  But there are other matters here.  We understand it is the essence of business to grow as a part of its success, which means change.  This change can come in new equipment, new processes, new chemicals, adding 2^nd and 3^rd shifts, bringing on a paint line (paint booth), and so on.  Any one of these changes can easily impose modifications of a facility’s permit.  And when you’re planning to double your sales due enhanced productivity and technical capability, who really thinks about EHS compliance implications other than Vanguard?  Can you imagine an inspector coming in and saying, "I'm sorry, Sir, but I'm going to have to ask you to close the plant down every Thursday at Noon for the next 18 months because you've exceeded your permit conditions."  If you're exceeding the conditions in your permit, you'd want us to let you know so we can modify your permit under voluntary revision.  The best way to do this is through, at the very least, annual review.

17.  MYTH:  WHAT INFORMATION CAN YOU PROVIDE THAT TELLS ME I HAVE TO DO THIS & WHY?

MYTHBUSTER:  That's a fair question if I ever heard one.  I trust that you’re not asking for a copy of the Code of Federal Regulations covering 60 laws.  Fact sheet publications are available from the government on practically every law.  So ask and you shall receive.

 18. MYTH:  OUR INSURANCE COMPANY TAKES CARE OF THAT.

MYTHBUSTER:  Oh! You're referring to your workers compensation insurance company.  Your workers compensation company is an insurance company that deals in risk and monitors your safety issues from time to time so as to know how much to charge you in annual premium costs.  But, you've got to know they won't implement your compliance for you, except on an advisory basis.  Of course, you should take advantage of any free services as a part of your insurance company’s benefits.  But, please don’t form a false sense of security in thinking all your compliance among the 50 EPA, OSHA, DOT laws is covered on top of insuring your work force against workplace injuries and fatalities.   The best way to understand just what is being provided by your workers compensation company, above and beyond insurance coverage, is to ask them to write you a letter on everything covered and IMPLEMENTED on anything related to EPA, OSHA, DOT compliance.  And then, for that which they say is covered, ask them to show you where they’ve provided your company with site-specific documentation to the specs of each law, all to be maintained on your site.  Now, if you’re so naïve to take their word for it (and not get it in writing), you probably will come to a moment in your business life when, like all of us do from time to time, you don’t feel as smart as you thought you were.  After all, do you really think that a workers comp company can provide EHS compliance services, even if they had the expertise and manpower to do so, for no extra fees beyond the premiums they’re charging for the INSURANCE they’re providing.  Here’s a simple test if you’re not yet quite convinced.  Just pick up the phone and ask your agent, “Could you tell me what my storm water coefficient is for my TRI issues?”  Now time the silence with the second hand on your watch.

 19. MYTH: YOU’RE REALLY SET UP LIKE AN INSURANCE POLICY, AREN’T YOU?

MYTHBUSTER.  I understand what you’re saying. However, with insurance policies something bad has to happen before you get something in return.  For instance, you have to die in order for someone else to be able to collect on the insurance.  With environmental compliance, the fact that you’re complying with the laws as required simply prevents the disaster from ever happening.  On the other hand, if you do nothing, the disaster will certainly come sooner or later.  Getting your company in compliance is more like providing you with a “Get out of jail free card.”

 20. MYTH: WE HAD OUR FACILITY CHECKED FOR AN AIR PERMIT OVER 10 YEARS AGO, AND WE WERE UNDER 100 TONS.

MYTHBUSTER.  Careful, you’re walking through the gates of self-incrimination.  You just told me that your facility was screened against the 1977 Clean Air Act because the 1990 Clean Air Act Amendments did not make its way to Industry until 1997 at the very earliest.  Moreover, you’re using the terminology of tonnage from Title I.  There are three more title programs requiring the screening of your facility where the thresholds can go as low as .6 tons (1,200 lbs) under Title III (187 air toxics or HAPs –Hazardous Air Pollutants).  But don’t forget Title IV (Acid Rain Deposition) and Title VI (Ozone Depletion).

 21. MYTH:  WE’RE USING A SOFTWARE PROGRAM TO TAKE OF THAT.

MYTHBUSTER:  That’s really good!  You must have paid about $250,000 for the kind of starter software that would screen your facility against the 60+ laws.  If it’s any kind of published software, you’ll be sadly disappointed because no software package is comprehensive enough to cover all the laws and be site-specific to just one company.  Software publishers would have way too much upfront investment costs to provide the kind of software to accommodate each individual company.  If that’s not bad enough, just wait till the person you’ve gotten to enter the data resigns for employment elsewhere.  Or that same person voices the opinion, after your purchase, that the software is much too involved to be practical for your company’s needs.  So, the software goes up on the shelf unused, and now you’re looking for a compliance management company to take care of your compliance.  Glad you found Vanguard!

23.  MYTH:  WE GET OUR COMPLIANCE FOR FREE THROUGH STATE OSHA.

MYTHBUSTER.  If you think OSHA is satisfying your compliance, or that you’re getting a free ride through the state OSHA consulting program, you’ve misunderstood their program.  You’re required to maintain compliance with all OSHA standards at all times.  The OSHA consulting program is a good one.  It simply provides a free OSHA consultation to inform you about your compliance needs on safety and health matters.  If you satisfy the compliance issues by the deadline noted by the consultant, then you’re exempt from any enforcement penalties at the state level.  However, you are not exempt from federal OSHA inspections or penalties as a result of employee accidents or fatalities.  Don’t get lulled into a false sense of security by this program.  It would also be important to remember that this particular program has nothing to do with the some 20-25 environmental compliance mandates required by the EPA, as well as your state, county, and local environmental agencies.  You must comply with all laws applicable to your facility or face stiff enforcement consequences.
 

CRITICAL FACTS & THE PLAIN-ENGLISH GUIDE TO EHS LAWS  

Here’s a bit of education in hopes that the following information might provide you with a new regulatory framework from which to begin your due diligence.  Please don’t hesitate to discuss these matters with a Vanguard Regulatory Specialist as dealing with regulatory compliance presents a challenge similar to that of “theme and variations.” 

• FACT: 93% of all regulatory compliance laws (over 60 federal laws imposed upon Industry by EPA, OSHA, & DOT with further offshoots at state, county, and local levels) are based on 3 overriding elements:
  • chemical hazards;
  • thresholds assigned to those chemical hazards by gov’t agencies, and
  • regulatory mandates governing how a given facility’s compliance is to be satisfied. 

Except for the 7% based on iss