The Role of EMS in the Legal Field
The Environmental Management System (EMS) is a framework that organizations use to manage and monitor their impact on the environment. At its essence, EMS is a tool for achieving compliance with environmental regulations. It comprises structured and systemic processes for assessing an organization’s current environmental impact, setting goals for improvement, creating a plan to meet those goals, implementing the plan and tracking performance against the goals.
Most regulations requiring environmental impact review—for example, OSHA, RCRA and SARA—recognize EMS as a valid tool. Typically, these regulations require a facility to have compliance plans and programs in place to minimize environmental impact . In fact, the International Organization for Standardization (ISO) has developed a standard for EMS (ISO 14001) that can be used as the basis for third-party certification of EMS. Certifying an EMS can be a very useful marketing tool. It can also reduce liability to some extent, because thousands of facilities have been certified. Courts are generally reluctant to hold a facility liable that has developed an EMS that incorporates hundreds or thousands of other EMS of facilities. The court could be holding all other facilities liable for the same issue.
EMS can be a cost-effective solution to facility environmental issues. It forces a facility to prioritize its actions so as to focus resources where they are needed most. Unfortunately, many companies implement an EMS solely because it is required by law in order to avoid liability for any environmental violations.
Legal Obligations for Effective EMS
To ensure legal compliance, organizations must navigate a range of fundamental requirements when implementing an EMS. Multiple international standards such as the ISO 14001 series of environmental standards for EMS, can influence a region’s national laws. Many countries have adopted standards based on ISO 14001 within their national legislation, and others have adopted ISO 14001 as the standard. Other requirements may include environmental permits, approvals, and controls relating to activities with the potential for adverse impacts. Current legal requirements and compliance can serve as a useful "positive" means of understanding the issue of legal compliance. Legal compliance normally involves meeting requirements relevant to regulatory bodies, permits, registries and other related decision-makers. Legal compliance also can serve as useful "negative" tool, providing compliance information about possible difficulties encountered by organizations who have failed to comply with legal requirements. Section 3 introduces the concept of legal compliance, Appendix A offers examples of relevant legal requirements, and "Legal and Other Requirements-A Self Audit" Checklist is offered in Appendix B of this chapter.
The Advantages of Compliant EMS
Legal compliance can significantly reduce the legal risks that businesses face. By understanding and complying with environmental statutory and regulatory requirements, businesses can mitigate the chances of increased expenses or criminal liability. Non-compliance can not only lead to financial penalties and increased costs of liability insurance but can also result in criminal liability for you and your team. An example of this was seen last year when Volkswagen was hit with a $2.8 billion fine for its environmental violations. With stricter regulations coming into effect, the timeframes for compliance are becoming shorter and the penalties harsher.
It is not just legal risks that can be reduced, environmental laws can help to improve corporate reputation. Competition in this current business climate has become fierce so having an eco-friendly reputation can give business a competitive advantage which could mean gaining new customers. Environmental certifications such as ISO 14001 show customers that you are taking environmental issues seriously and by following the guidelines, you have developed a clear plan to improve your impact on the environment. These buyers are looking for businesses they can trust and certifications show that you have invested time and money into your environmental commitments. Citibank and BeautyBank, a beauty trend tracking service, gained positive publicity when they marketed a carbon offset campaign through their company wide carbon footprint calculator.
Environmental legal compliance can also lead to cost savings. Although EMS certifications do require an upfront investment, once the system is implemented, it makes the process of managing a business’ environmental impact much more efficient. Annual reviews should be performed to look at areas that can be improved. Setting objectives and targets to reduce resource use and waste will be required so set in place any reports you require including electricity or water bills. The first year will be a learning curve but by the time it comes to the review, you should have plenty of data for the board to witness the savings that can be made through EMS legal compliance. A green association can be positive for businesses as one study showed that green business policies boost a businesses’ bottom line.
Challenges to the Implementation of EMS Legal Standards
Understanding EMS Legal Regulations and Compliance
Many challenges occur during the implementation of EMS within any legal structure, among them is the quality of implementation of rules and principles, resource allocation to meet to the organizational goals, regulatory changes and cross-border legal compliance. Fortunately, most of these challenges are manageable if an organized approach (i.e., procedure) is used to address them.
The interference of personal interest of individual stakeholder in the process rather than ensuring overall organizational benefits is a key issue that needs to be monitored. This could be easily avoided through consultative meetings at all levels and ensuring that information on progress on regulatory compliance, successful filings etc. is communicated to all parties. Even when technology resources are made available, it is often seen that some of the interested parties use the system but do not communicate the information to be entered into the system. This challenge is met with routine reporting on status of information availability for compliance.
Insufficient or improper allocation of financial resources is a major problem within organizations. In extreme cases it could lead to a loss of organizational ability to meet its obligations. To address shortage of funds required for compliance (i.e., fines), new sources of revenue generation are needed on an emergency basis. A more profound approach would be to streak forward with the development of the business case for compliance. A proper business case for compliance contains a cost-benefit analysis, for example, an organization considering relocating its operation to another location with less regulatory burdens. Over the long term, pursuing a business case for compliance will allow savings to be used for establishing proper compliance.
Another key issue that affects business of many organizations is the frequent changes in regulations. Most importantly, this often leads to unforeseen costs . In some cases, it would drastically affect financial stability of an organization or even shut down an organization with no notice. New regulations require considerable investment in training, planning for compliance, hiring of new staff, setting up compliance programs etc. At the same time, an organization’s ability to absorb these changes is limited. Towards addressing this issue, keeping up to date with changes within the industry and the country can be invaluable. In addition, contingency planning for unforeseen future developments within the industry may be useful for complying to unforeseen regulations. It is also advisable and helpful if organizations create a separate business case for compliance. This will ensure that the cost for implementing environmental management systems, having a well-planned process for overcoming unforeseen events are allocated in advance and have the financial reserve set aside.
Cross-border legal compliance can be a challenge for some organizations. In some cases, rather than keeping business to the local region, organizations have global recognition and their offices all over the world. Each country has a different law, norms and regulations that need to be followed. The key here would be to follow the strictest regulation that would be applicable to all business across different regions. Having consulted professionals on environmental laws globally will be helpful. For example, ISO 14001 requirements for other regional offices should be sufficiently explained to staff and owners in order to handle regional differences better. Also, having a compliance program that maps out all the laws, requirements and sustainability policies across all regions will save time and cost during the process. This will also serve as a reference point for all regional offices on what the organization’s sustainability goals are.
Successful implementation of EMS within legal framework takes a reasonable amount of time, commitment by top management, considerable effort and creativity in finding means and ways for achieving compliance.
Analysis of EMS Case Law
Numerous companies have effectively implemented an EMS in compliance with legal regulations. Two notable examples can be found in Chubb de Colombia S.A. (Chubb) and Sofasa Honda, S.A. Chubb de Colombia S.A is a company dedicated to the manufacture of safety and insurances boxes for cash transportation. The company produces in seven productions plants where, with the aim of maintaining its environment protected and ensuring safety of its internal team, the company decided to certify in ISOTS16949 (ETI) and ISO 14001-2004 processes. This is the reason why the Organization maintained a continuous improvement with the implementation of an Environmental Management System (EMS) according to the ISO 14001 standard, the management of all their suppliers, in order to make them efficient in the implementation of an EMS and the implementation of a system to monitor, seek for improvements and measure the energy consumption of each plant. The Chubb organization has established different strategies as: In connection with the high use of Energy in the seven productions plants, a study of the intervention of energy certification was made, in order to identify low, medium and high potential. In addition, energy audits were held to identify the information of all the energy consumption of each plant. On the other hand, the organization established a non-permanent committee, in charge of encouraging the workers to seek for improvements in the processes, through the development of an action plan, to induce a culture that seeks for the best use of resources. Finally, training processes were developed to management in each plant, as well as the implementation of an action plan to keep track of the best equipment utilization practices. Sofasa Honda, S.A, is a company dedicated to manufacture motorcycles, which in 2008 certified their HSE management system EHS (Environmental, Health and Safety) and focused on the development of integrated solutions to improve their security, health management and the protection of the environment in an effective way. Some of the actions to achieve this goal were: One of the strategies was to surround the organization with entities interested in reducing accidents in the working environment, so Sofasa became part of a network of agencies formed by users, suppliers, clientele, public agencies, community leaders and unions. They also created a committee called "circuit safety", composed by employees and union leaders, whose aim is to promote safety and health among workers. Furthermore, aimed to help employees in their emotional integrity, they implemented a program called "the circle of happiness", in which the organizational climate is monitored. During 2009 the organization evaluated the risk in 60% of their work activities while they projected to evaluate the rest (40%), during the first semester of 2010. A major challenge for the company today is to achieve the increasing motivation of employees in the health and occupational safety management exercises.
Emerging Trends in Legal Requirements for EMS
Future trends in EMS-related laws are likely to focus on compliance with environmental sustainability principles, particularly in line with the commitments made by various countries under the Paris Agreement. Countries will need to align environmental and economic strategies towards a more sustainable future for these EMS systems. The increasing frequency and severity of natural disasters ranging from floods to droughts is pushing governments and non-governmental organizations alike to reevaluate their EMS preparedness and response plans. We can expect further international cooperation between governments on EMS preparedness and response as well as between governmental and private companies. The more disasters occur, the more likely private companies will be relied upon to combat these disasters or provide goods and services supporting affected populations. The rapid pace of technology development , including the ubiquity of information and communication technologies and the growth of increasingly autonomous infrastructure will drastically influence EMS legislation. The development of connected vehicle technologies will allow for real time tracking of traffic and weather, enabling unprecedentedly sophisticated methods of resource allocation. As technology continues to evolve we expect a real push towards digital EMS, including everything from remote medical monitoring, to complex infrastructure that can autonomously close off water mains in the event of an earthquake to minimize flooding and catastrophic infrastructure failure. Governments will need to allocate resources to upgrading and maintaining infrastructure to protect these digital systems.
Leave a Reply