Do We Really Need Regulators?

In the news recently:

The [EPA] will lose $1.6 billion as part of a deal between President Barack Obama and congressional leaders to produce $38 billion in spending cuts for the rest of the 2011 fiscal year, according to legislation made public today. (1)

That, by the way, is a 16 percent cut to the EPA's overall budget.  And if you don't think that will not seriously impact what the EPA does, well you are living in a land of denial.  For starters, a lot of money goes out in the form of grants and loans to States to pay for things like drinking-water projects and sewer projects. (2)

But maybe Representative Mike Simpson is right when he states: “The Obama administration has dumped money into the EPA over the past two years, and what the American people have seen as a result is a slew of new regulations pouring out of the agency,” (1)

But has 1.6 billion been wasted?  Has there been a "slew" of new regulations that are inappropriate?  Make no mistake, The EPA under President Obama takes a much different tone than what was set under President Bush (see my post for one example).  But let's not throw the baby out with the bathwater.

Actions are predicated on perception, and perception can be easily manipulated.  That's one of my goals for this blog, to force perception to base itself on the data, not the dogma, the rhetoric, or the agenda.

Agendas are set based on the dominant thought of those pushing it.  Right now, that thought takes one of two predominant tracks that are equally detrimental to the common good - public health and protecting the environmental.  Business is not the problem, neither is regulation.  The problem is lack of empathy regarding each other's concerns and needs.

This is not a Democrat/Republican battle, but a battle between those who dominate the conversation within each.  Each side uses Saul Alinsky's tactic number 11, as described in his book, "Rules for Radicals."

"If you push a negative hard and deep enough, it will break through into its counterside"

The EPA is not the bad guy, neither are the factories, refineries, constructions sites, and industries that give us the products we use and employment we need.  Stop painting them with the brush of "job killer" or "polluter,"

Now I can say this emphatically: My EHS cohorts, my profession, the people I teach, and the businesses that employee them, take the topic of environmental health and safety seriously.  They are not afraid of OSHA, EPA, DOT, or any other agency coming to visit.  They do what is necessary to keep their people safe, protect public health, and minimize their Impact on the environment.

We're not talking just a handful here.  My fellow EHS professionals that I know, meet, and teach, work for all the major corporations, as well as government.  I know them and I know what effort they and their employers put into not just compliance, but into making EHS work.

Now that's not to say that when a regulator comes to visit, they are all giddy with excitement that they are there to inspect them.  There is a reason why I call this blog the "Wacky World of Waste."  Compliance is often difficult and puts the EHS professional between a rock and a hard place.  Sometimes it is outright impossible to comply.  Most investigators understand this, but they cannot look the other way by ignoring it.  Making sound law and regulations is an art and one I champion for constantly.

So are the rules enforced and promoted by the EPA as bad as Representative Mike Simpson makes them out to be?  Are they really inappropriate?  Do they impact business to such a degree that we should de-fund the EPA by 16 percent?

Lets look at air pollution, since this seems to be the driver for this perception: (3)

• In 1970 we got the Clean Air Act, signed into law by Richard Nixon, a Republican (and not what one would call a moderate).  This law regulates six six air pollutants under the National Ambient Air Quality Standards (NAAQS).  In 1971 the EPA is created to administer this.
• In 1977 we get the Clean Air Act Amendments which brings forth Prevention of Significant Deterioration (PSD). Signed into law by President Carter (a Democrat) 
• In 1990 we get another amendment to the CAA which requires a program to control 189 toxic pollutants (called Hazardous Air Pollutants (HAPs).  Signed into law by the first President Bush (a Republican)

Now lets look at the history for two of those pollutants of concern, sulfur dioxide and nitrous oxide. (4)

Now ask yourself the question: Has obtaining cleaner air negatively impacted US business?  Yeah, I know, the air is cleaner because we lost a lot of heavy industry (e.g. steel, metal plating) to foreign destinations. But our population has increased significantly and many of the industries in existence in 1970 are still with us today.

The Clean Air Act worked.  The air in Los Angeles, for example, is much cleaner then when I lived there.  This was brought about by a Law and then industry's compliance with that Law.  Did it cost business?  Yes.  Did it hurt some business? Yes.  Is the air healthier? Yes.  Did our GDP increase in spite of it?  Yes.

So now the question that needs to be asked is this:  Will reducing the EPA's budget by 16% help the cause of EHS?  I say no.  Without a strong watchdog, the predominant business model will always swing towards the lowest common denominator.

That's going to make it more difficult for the EHS profession and the corporate attitude that is needed to support what we do and the costs associated.

Time will tell.


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Beyond Compliance: Part 4 - A basic scale for deciding on how to act

Like I said in the last post - cheap graphics will be used to (hopefully) illustrate a point.

Performance Track was an EPA program designed to get businesses to look at how they impact the environment and to look at their day-to-day activities not solely on a compliance mindset but instead on a because it's the right thing to do way of thinking.  By adopting Performance Track a business pledged to go "beyond compliance" and in return they got some rewards in terms of marketing themselves as environmentally aware as well as a lighter hammer used by the EPA in case of a violation.

So when looking at anything that is designed to foster a behavioral change to accomplish a goal, you need to understand the mindset - or dynamics - in play of the individual(s) that can make it happen or work against it.  This, in my opinion, is where we have missed great opportunities to make real environmental, safety and health change in how we behave.  We fail to see how doing the "right thing" is decided, assuming that everyone should come to the same conclusion.

In the case of Performance Track - it was geared to change the behavior of a business.  Now you may have arguments on the mechanics and perception of Performance Track, but I am wanting to address the goal - that is - to foster an attitude that moves away from do the minimum to do stuff that actually makes a difference.

I hope in my last three posts on this subject I was able to show how being in compliance with a regulation does not necessarily mean you are doing what is best for the employee, public health, or the environment.  That's what Performance Track was trying to overcome.

So lets look at my first cheap graphic.

Figure 1

Figure 1: I use the term "harmony" to denote that perfect place, that Nirvana where the 'right thing' is actually the right thing.  That place will never be found since two people will have different takes on just what 'right' means.  So in this first graphic what I want to show is how a person (regulator, business owner, public, employee) can view an action, such as climbing a radio tower or reducing their carbon emissions.

Figure 2

Figure 2:  Some where on the scale is how the person will value the risk of the action to be undertaken.  It is here that we must understand that risk is looked at much differently between two competing entities, such as the EHS Manager and the CEO.  The same goes for a regulating agency and Industry.  Where, in my opinion, we fail is that one side does not value the other sides risk concern.  It sounds reasonable to say "but fall protection would prevent the climbers death" so risk reduction in terms of death is worth the cost.  But how much real dollars should be spent on cleaning up dioxin contaminated soil when a fence would reduce exposure to zero (excluding that pesky trespasser or an act of God)?  A particular action - right or left on the scale - always will have a cost associated with it.

Figure 3

Figure 3:  Depending on the mindset of the regulators - their dominant thought - regulations and policy will be set based where on the scale that particular dominant though falls.  From there it can move to the right or the left by influencing it before it becomes implemented, but it will not move to far away from its original starting point.  A bottom line manager is as hard to convince to spend money as a regulator who thinks a big hammer with teeth is the only way to get the end result sought.  The goal is to bring a balance to  the mindset of the two forces in play and come up with a regulation that achieves real results.

Figure 4

Figure 4: The problem with regulations is that they often want more than can actually be obtained,  or capture more than what was intended.  Does one drop of oil in the river really necessitate reporting to the NRC?  On the other hand, should notification be made if a business has a release of 4999 pounds of MEK regardless of whether it was released "into the environment?"

Figure 5

Figure 5: The benefit of a program such as Performance Track far out weighs the negatives in that it fosters a new mindset that moves closer to harmony.  Holding to close to your own perception of the cost associated with an action will often times lead you away from doing what is right both in terms of actual benefit and the related cost. Too much focus on a zero of anything leads to environmental impact and health and safety problems because the focus is not on what is to be achieved but instead on how it is to be done.  Telling the family of the dead climber "we complied with OSHA requirements 100 percent!" will not go over very well with the exception of in court where you will most likely end up.

The point is to minimize risk and minimize bottom-line costs.  You cannot do one at the expense of the other because the pendulum swings in both directions.  Change the mindset and you can achieve real results.

Beyond compliance is the road to Nirvana, a make believe place for sure, but one in which we would all like to live.


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Beyond Compliance: Part 2

In my last post, I left off with why it's the right thing to do using the only retort I have available - "says me..."

And here is why I says that.  Lets look at two scenarios where "beyond compliance" makes perfect sense.

The first one involves a situation in which an employee is tasked to climb a very tall radio tower to replace the beacon bulb at the top.  As the guy put in charge of employee safety, I am tasked with making sure two things happen.

1. All employees are not injured or killed
2. OSHA compliance is met

So I show up at the tower and I tell the employee "you must climb using 100% fall protection."

The employee says "Don't have to, I'm a  qualified climber and OSHA does not require fall protection when I am climbing."

Because I'm a "beyond compliance" kind of guy, I say - "I don't care what OSHA says, you use 100% fall protection or you don't climb."

It is at this point where one of two paths present themselves.  Path one is a company that understands the benefits of a "beyond compliance" philosophy as the maximum standard, and Path two is a company that accepts a regulatory requirement philosophy as the maximum standard.

As the safety guy, I am now stuck in a position of - will my company's management support my "because I say so" line in the sand?

Scenario two is a little less black and white.  When a training requirement does not mandate a set number of hours, who gets to decide on how much time is needed to meet the requirements of the standard?  In other words, who decides on what is an adequate amount of time?  Who decides the degree of quality necessary to be put into the class and the training?  Adequate and Quality are such subjective terms and convey different things to different people. 

As a trainer, I say it is up to me to decide how much time is necessary to convey the knowledge and information needed for a particular task to be performed.  If I am going to train employees on how to protect themselves in an IDLH situation or to enter a confined space, it will be taught for the number of hours needed for me to feel comfortable having them perform the task.

So how is this comfortableness decided?  For me, and I am not alone in this methodology, it comes down to answering two questions:

1. Is the length of time for the objectives needing to be met similar to what other competent training providers are offering (what is the industry standard)?
2. Can I sit in front of a Jury and defend myself, my company, and my profession regarding the class that I taught?

Number two is the most important factor here for me.  Because when it is all said and done, it always comes back to training, which means it falls back on the person who stood in front of the individual who was harmed, killed, or messed up.  It is all subjective when it comes to how well the training met the objectives.  And if I am going to have to defend myself, then it needs to meet my definition of adequate.

So what happens when the client says, I can only spare my guys for eight hours and not the 24 you want?  Or  someone in your own management questions why you are putting employees through a 24 hour class when she saw on the Internet the same class provided in only five hours?

The question both will ask is "what does OSHA require?", and you will have to answer "there isn't a set time" which is then followed by "why does it have to be 24 then?"

Because I say so...because it is me that is tasked with answering the question "is it safe", "is it adequate", "will it stand up in court".  Being only OSHA compliant has nothing to do with answering those three questions.

So if you do not accept a beyond compliance philosophy - if all you will accept is regulatory compliance only - at least have the courtesy of telling your EHS guy that before you hire him or her.

If the employee screws up because of inadequate training or the "qualified climber" falls, it doesn't make us feel better because we can now say "I told you so."  And if you change your tune after we are employed - buy us out so we will not have to put our well being (employment) over the ones we have been charged to look out after.  The fact that I kept the company in compliance does not make up for the indignity of knowing it could have been prevented and I was not provided the support needed to do so.

Bottom line: Choose one.  Regulatory compliance or beyond compliance.

Next post:  How the EHS Manger looks at achieving balance in a zero risk world controlled by a bottom line mentality.  The economy of safety.


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