To reify non-compliance issues, I have grouped non-compliance into various categories and then produce ideas on how to address those issues.  I identified two primary causes for non-compliance with regulatory requirements:

• Failure to identify a regulatory requirement
• Failure to properly implement a regulatory requirement

When I investigated the failure to identify and implement regulatory requirements, I realized that the reasons and potential corrective actions were different depending upon the responsible party.  Therefore, I divided the potential issues further into the following responsible parties:

• Company level issues (e.g., EHS personnel, administration)
• Operators or personnel responsible for implementing EHS requirements

In the following paragraphs, I discuss some of these issues and how to address them.

19.1 Company Level

19.1.1 Ignorance

The company did not know about regulation or requirement.

19.1.1.1  Examples

EHS personnel were not aware of an EHS requirement, so a change was made without required EHS permits (e.g., an air construction permit, construction stormwater permit, etc.) or was not built to meet EHS requirements (e.g., no emissions controls, fall protection, guarding, toe board, etc.).

19.1.1.2 Potential Reasons

Poor Hiring

I once interviewed for a position that I was the only person at the company with environmental and process safety experience (i.e., the previous EHS manager had left prior to my interview).  Although I had a recommendation from the previous EHS manager, no one that interviewed me knew anything about EHS and obviously could not vet my experience.  I like to think that they made a good decision when they hired me, but I could have been completely wrong for this position, and they likely would not have known.

Atypical Projects

If a company embarks on a project outside their normal project types, locations or magnitudes, the project may have different regulations or requirements and the company lacks the expertise to know and understand.

Applicability Change

Although the facility may have evaluated the requirement and determined that it did not apply, someone made a change to the facility and/or its operations and changed the applicability.

Assumed Historic Compliance

If nothing changes at a facility, or a new facility is built like other facilities, it is not uncommon to assume that the facility follows the regulation.  This inertia can be difficult to overcome especially if no EHS regulatory issues were ever identified by regulatory agencies.

I have encountered several situations where a site was inspected numerous times and no violations noted.  Unfortunately, this resulted in an uphill battle to get the facility in compliance since facility personnel argued repeatedly that they had been inspected and no violations were noted.  I had to explain that inspectors may not know or be tasked with inspecting against all EHS regulations.  EHS inspectors are often specialized and have a particular area of focus. 

One facility I worked with had provided a copy of the recordkeeping form to the inspector for their review and comment.  After receiving neighbor complaints, a different inspector came and noted numerous violations several of which involved the recordkeeping forms we had provided to the previous inspector.  When we were negotiating a settlement for the violations, I mentioned that we had provided the recordkeeping forms to the inspector in hopes of getting out of the violations or at least demonstrating that we had made a good faith effort to comply.  The regulatory agency did not reduce the settlement.

A well-known historic example was the Union Carbide facility in Institute, West Virginia.  It was inspected by the Occupational Safety and Health Administration (OSHA) several months before an Aldicarb Oxime release, and after a historic and deadly release at their facility in Bhopal, India[1].  The Occupational Safety and Health Administration (OSHA) did not identify issues[2].  After the release in Institute, Occupational Safety and Health Administration (OSHA) conducted another inspection months later and cited Union Carbide for hundreds of violations and $1.4 million dollars in monetary penalties[3].

19.1.1.3 Potential Solutions

Poor Hiring

The company that hired me could have asked for outside assistance such as a consultant or attorney to ask technical and EHS-specific questions.  Accurate position descriptions serve as a good guide for hiring replacements, which is why it is advisable to have employees periodically update their position descriptions when they change.

Atypical Projects

For atypical projects, you may want to hire consultants or contractors with experience in that project type or location.  You can use their expertise to help build your in-house knowledge without letting a regulatory requirement slip through the cracks.  If you are uncertain who to hire, distributing a request for qualifications (RFQ) will allow you to vet consultants and contractors that have experience with the atypical project.  Section 9 addresses using consultants and contractors.

Applicability Change

The applicability of an EHS requirement can change because you made a change at your facility, the regulation changed, or an interpretation changed.  A powerful tool for tracking and addressing changes at a facility is a Management of Change (MOC) process, where facility personnel alert or seek approval from EHS personnel prior to making changes at their site.  If you do not have a system like this, you may need good communication with facility personnel and/or you may need to train facility personnel on what changes might require EHS facility personnel input.

Chapter 3 discusses how to get alerts on regulatory changes so you can evaluate if the applicability of a regulation changes.  Generally speaking, regulatory agencies should not be modifying formal interpretations in a manner that affects the applicability of the regulation[4]: This should be done through a formal rule-making process, but I have seen this occur.  You may have legal recourse to fight this change of interpretation, but it may not be easy and inexpensive.

I have seen different inspectors with different interpretations of regulations, and this can be very frustrating.  Documentation of previous inspections, where no issues were identified, may be used to avoid potential fines and violations, but may not be enough to change the inspectors mind regarding their interpretation.

Assumed Historic Compliance

Assuming your company is compliant because you have not had issues identified previously may be the most frustrating to me especially because of the inertia it can take to get others to realize we need to change.  Obviously, if a regulatory agency identifies an issue, it is more obvious that change is needed.  However, when you do not have that impetus, it can be more difficult since you often hear the “If it ain’t broke, do not fix it” motto.  Unfortunately, you may need to get an outside consultant to evaluate the situation and determine if a change is needed, typically through an EHS compliance audit.  I have done the audit myself in the past and tried not to be insulted that my opinion was not strong enough by itself: No one is a profit in their own country.

19.1.2 Misinterpretation

The company knew about the requirement but did not understand how it applied.

19.1.2.1 Examples

I started working for one company shortly after they were spun off from a larger company.  When reviewing the permit files in one state, I noted that they thought all our agricultural-related facilities were exempt from air permitting.  I researched this exemption and only farms were exempt in that state, not agricultural processing facilities.  Misinterpreting the scope and applicability of a regulation is likely one of the biggest issues and carries a significant risk since it could mean that you are not complying with any of the requirements.

19.1.2.2 Potential Reasons

The size and complexity of the EHS regulations makes misinterpretation easy if not common.  You could assume misinterpretation would be due to inspector variability, poor hiring or assumed historic compliance, but truly misinterpreting a regulation would involve knowing about the regulation, but not understanding it. 

Lack of Guidance

When I first started in the EHS business, the regulatory agencies did not seem to have as many guidance documents and even if they did, they were not readily available without the internet.  This has greatly improved, but now almost has the opposite issue that there is too much data to identify the specific information you need.

Lack of Research

Sometimes the requirement information is available, but applicable personnel do not research the issue extensively enough. 

19.1.2.3 Potential Solutions

EHS personnel may not have much available time and resources, but I would consider matching the time spent with the risk.  If I am uncertain about a requirement, in addition to researching guidance, I might seek additional opinions including from outside the company, such as consultants, attorneys or even regulators to help eliminate misinterpretations.  Documenting the basis for your conclusion (e.g., a memorandum that you file) might protect you from citations or minimize the penalty since it will show you put a sincere effort into evaluating the requirement.

19.1.3 Failed to Address

The company knew about regulation or requirement but did not address it or addressed it late.

19.1.3.1 Examples

The classic example of a company failing to address a regulatory requirement is for air and stormwater construction permits: the company knows about the requirement but fails to plan ahead.  An air construction permit can take six months to years to issue, and you typically cannot start construction until you receive it.  Not wanting to delay a construction project, a company may decide to either not submit for a construction permit or start construction before they receive the permit (i.e., address it late).

19.1.3.2 Potential Reasons

A company may simply choose to ignore a regulation or requirement.  I do not have data to show when and why a company would do this, but I would assume this would be due to a lack of resources or time.

Other potential reasons for not addressing a known regulation could be due to poor internal communications or failure to assign a requirement, but these are addressed under Section 19.2 Operator and Personnel Level.

Lack of Resources

EHS requirements may require money to pay consultants and buy equipment.  To work safely in a trench (e.g., an earthen excavation that is taller than it is wide and is less than 15 feet wide), you either need to have a competent person evaluate the soils for potential cave in hazards and/or provide some type of shoring or sloping[5].  Both can cost you money. 

Lack of Time

In addition to waiting for a permit, some other EHS requirements, like performing a confined space entry take additional time.  Conducting this work without waiting for the necessary equipment (e.g., hasps, air monitor, harness and lifeline), personnel (e.g., attendant) and notifications (e.g., emergency personnel, nearby operators, etc.) could be fatal.  Sometimes this is a personal level decision, like when someone enters a confined space without appropriate precautions to rescue someone, or a company level decision when someone tells a group to conduct a confined space entry without taking necessary precautions.

19.1.3.3 Potential Solutions

Culture

If a company makes a decision to move forward with an activity that violates and EHS regulation, it may be a sign of a poor compliance culture.  Section 8 addresses cultural issues.

Make it Easy

Sometimes we build programs and policies that are overly cumbersome.  When we have a choice, we can consider simplifying the system to make it easier to comply and less likely for others to try to subvert the system.  Making it easy to conduct operations in a safe and environmentally protective manner, could help compliance.  Examples include:

• Keep equipment (e.g., lockout tagout equipment, harnesses, lifelines, ear plugs) in a convenient location.
• Try not to make the internal permitting process difficult and time consuming.

Training

One way to avoid timing issues is to inform applicable personnel about potential delays due to EHS requirements.  If you fail to appropriately train individuals on potential EHS responsibilities, you could face increased penalties if the Department of Justice (DOJ) is involved since their organizational sentencing guidelines require:

“The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program … by conducting effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities.”[6]

19.2 Operator and Personnel Level

19.2.1 Ignorance

The operator did not know about regulation or requirement.

19.2.1.1 Examples

A janitor goes into a room with a running electrical generator without hearing protection to clean up a spill and gets exposed to noise levels above acceptable levels (e.g., 115 decibels for over 15 minutes).  The janitor does not normally work in this room, or the generator is not normally running (e.g., it is an emergency generator).

When operating a volatile organic compound-emitting device, an operator fails to start up a flare resulting in excess emissions to the air.

19.2.1.2 Potential Reasons

Some of the reasons why operators and personnel may not know about an EHS requirement include:

• The operator may have been trained on the requirement but forgot it.
• The training was unclear or did not properly address the requirement.
• The operator is new and has not received training.
• The procedures do not mention what EHS requirements are necessary when conducting the operations.
• Alarms, signs or other warnings are missing, not working or unclear.

19.2.1.3 Potential Solutions

Better On-Boarding or Training

The requirement may simply not have been addressed when the personnel were trained or on-boarded, may have addressed but they might have forgotten, or it was not clear.  Improved training may be needed, or the training may not be frequent enough.  Section 20.1 Effective Training addresses ways to improve training effectiveness.

Checklists or Operating Procedures

A checklist, operating procedure or other guide that personnel can use to walk them through a process may help eliminate missteps.  It’s also possible that you have a checklist, and it was not used, in which case this could require training on use of the checklist or it could be a cultural issue (e.g., they feel they do not need to follow the checklist).

Poor or Improper Signage

You may rely on signage to inform personnel about a requirement.  The effectiveness of a sign could be impacted by any of the following:

• Colors used: Using recognizable and familiar colors can aid in comprehension[7]. However, it’s important to note that color blindness can negatively impact that comprehension, so colors should not be the only recognizable part of the sign.  For example, 7 to 10% of men cannot tell the difference between red (stop) and green (go)[8].
• Images and symbols used: Familiar symbols or symbols that physically convey the hazard are effective[9].
• Positioning or orientation of the sign: If the physical arrangement of the sign makes it difficult or unlikely to be seen, it will not be impactful.   Lighting on the signage may also impact the effectiveness (i.e., if the lights are off or do not illuminate the sign).
• Training on signs: Informing potentially impacted personnel on the meaning (e.g., hazards) can improve comprehension[10].
• Standardization: Using recognizable and familiar signs aids in comprehension[11].
• Verbiage used: Text on signs may have positive and negative impact on comprehension: Text can help attract attention to signs, but the text can take up space on the sign and, if not large enough will not be readable[12].

Remove the Requirement

Two of my favorite EHS concepts are the hierarchy of controls and the waste management hierarchy.  Both of these concepts can be summed up by the old saying “an ounce of prevention is worth a pound of cure”.  The premise behind the hierarchy of controls is that you should use the control methods at the top preferably over those below[13]. 

Figure 19.2.1.3-1: Hierarchy of Controls

In the noise exposure scenario above, we mentioned that the janitor should have worn hearing protection, which is the lowest control method.  An administrative control might be a policy that no one is allowed to enter the room when the generator is running.  You would probably enforce this policy with a sign on the door, which would likely have been just as ineffective as the sign requiring hearing protection. You could instead utilize an engineering control such as an automatic lock that would prohibit entry when the generator was running.  An even better alternative might be to substitute or eliminate the need to enter the room or generate the noise:  You could install a drain that would drain the spill eliminating the need for the janitor to enter the room or you could look at alternative power generation or storage systems that would eliminate the need for the generator.

The waste management hierarchy is like the hierarchy of controls: the preferred method of handling a waste is the top of the triangle.  I have seen a number of variations on this hierarchy and have provided a common example below.

Figure 19.2.1.3-2: Waste Management Hierarchy

Below are examples of waste management options for the volatile organic compound flare example provided previously.

• Treatment and Disposal: Burn the volatile organic compounds in the flare
• Recovery: Direct the volatile organic compound where you could burn it for its energy
• Recycling: Capture the volatile organic compound and have it treated or modified so it can be used in another process
• Reuse: Capture the volatile organic compound so it can be reused in the process
• Source Reduction: Identify a substitute material that does not emit volatile organic compounds and therefore does not require any of the other waste management options

The source reduction option is the most preferred because it typically requires the least work and/or energy to implement.

19.2.2 Misinterpreted requirement

The operator did not understand the regulation or requirement.

19.2.2.1 Examples

An operator enters a permit-required confined space mistaking it for a non-permit required confined space.

19.2.2.2 Potential Reasons

Some of the reasons why operators and personnel may misinterpret an EHS requirement are the same or similar to the reasons operators and personnel are ignorant of a requirement and include:

• The operator may have been trained on the requirement but remembers it incorrectly.
• The training was unclear or did not properly explain the requirement.
• The procedures do not provide sufficient detail on the requirement.
• Alarms, signs or other warnings are unclear or incorrect.

19.2.2.3 Potential Solutions

Better On-Boarding or Training

The requirement may simply not have been addressed when the personnel were trained or on-boarded or may have addressed, but the training may not have been clear.  Improved training may be needed, including an emphasis on key concepts, such as the difference between permit and non-permit required confined spaces.  Section 20.1 Effective Training addresses ways to improve training effectiveness.

Checklists or Operating Procedures

A checklist, operating procedure or other guide that personnel can use to walk them through a process may help eliminate misunderstandings.  It is also possible that you have a checklist, but the checklist excludes the applicable requirement.  Improving checklists and procedures, such as periodically reviewing for accuracy and verifying that it is up to date, can help avoid misinterpretations.  Using the checklists and procedures as an on-boarding or training tool may also help you identify missing information.

Poor, Improper or Missing Signage

Although signs can help warning of potential issues, if not properly made, they can cause misunderstandings.  Some of the factors that impact sign effectiveness include:

• Job experience
• Work duration and time
• Type of safety signs
• Background color of safety signs and
• Comprehension training[14].

19.2.3 Failure to address

The operator knowingly does not comply with a requirement.

1.2.3.1 Examples

Some examples where personnel knowingly fail to address a requirement include:

• Maintenance personnel do not complete a lockout tagout of equipment they are working due to the time required to implement.
• Operators run a process without the control device operating simultaneously

1.92.3.2 Potential Reasons

The operator or personnel:

• Has too much work and did not prioritize the EHS requirement
• Chooses to ignore the requirement because it interferes with operations or costs money

19.2.3.3 Potential Solutions

Lack of a discipline program

If a company does not have a program for ensuring personnel comply with EHS requirements, they may struggle to garner compliance.  Section 10 Discipline discusses strategies for emphasizing compliance.

Organizational Structure

The company reporting structure may not be ideally organized to optimize compliance.  For example, if the operations group oversees the EHS personnel, operators may not feel compelled to comply with the EHS requirements.  Section 4.2 Organizational Location of EHS staff discusses the appropriate location for EHS personnel.

19.2.4 Failure to Meet Deadline

Personnel do not complete a regulatory submittal on-time.

19.2.4.1 Examples

Some examples of deadline failures include:

• Not preparing and posting Occupational Safety and Health Administration (OSHA) 300a logs by February 1 of each year
• Not preparing and submitting annual air emissions inventory reports, Tier 2 reports, etc. by the applicable deadline

19.2.4.2 Potential Reasons

Some potential reasons for missing regulatory deadlines include:

• The company lacks a robust compliance tracking system
• EHS personnel do not have capacity to keep up with regulatory submittals

19.2.4.3 Potential Solutions

EHS Software Tracking Systems

EHS software tracking systems can assist with regulatory submittals.  Companies with less complex regulatory reporting requirements may use simpler business tracking systems (e.g., Microsoft® Outlook).

EHS Project Management

Although you may get pushback on costs, if EHS personnel do not have capacity, you can utilize consultants to help meet regulatory deadlines.  Section 9 addresses using consultants.

19.3 References

[1] “Normal Accidents: Living with High-Risk Technologies” by Dr. Charles Perrow, Princeton University Press, Princeton, New Jersey, 1999, page 358

[2] Ibid

[3] Ibid

[4] “Interpretive Rules of General Applicability and Statements of General Policy, Recommendation number: 76-5, Adopted on: December 10, 1976, Publication Date: December 10, 1976, Administrative Conference of the United States Website (https://www.acus.gov/recommendation/interpretive-rules-general-applicability-and-statements-general-policy#:~:text=Before%20an%20agency%20issues%2C%20amends%2C%20or%20repeals%20an,comments%2C%20with%20or%20without%20opportunity%20for%20oral%20presentation)

[5] “Trenching and Excavation Safety” by Occupational Safety and Health Administration (OSHA), Publication 2226-10R 2015 , Published 2015, Pages 1, 3 and 5 (https://www.osha.gov/sites/default/files/publications/osha2226.pdf#:~:text=Occupational Safety and Health Administration (OSHA)%20defines%20an%20excavation%20as%20any%20man-made%20cut%2C,is%20not%20greater%20than%2015%20feet%20%284.6%20m%29.)

[6] “United States Sentencing Commission Guidelines Manual” by Charles R. Breyer, Acting Chair Patricia K. Cushwa, Commissioner, Ex-Officio, Jonathan J. Wroblewski, Commissioner, Ex-officio U.S. Department of Justice, November 1, 2021, Page 518 (https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2021/GLMFull.pdf)

[7] “Ergonomic Guidelines For Traffic Sign Design Increase Sign Comprehension” by Tamar Ben-Bassat And David Shinar, Ben Gurion University Of The Negev, Beer-Sheva, Israel, Human Factors, Volume 48, Number 1, Spring 2006, page 190

[8] “Prevalence” Color Blindness Website accessed June 25, 2022  (https://www.colour-blindness.com/general/prevalence/)

[9] “Ergonomic Guidelines For Traffic Sign Design Increase Sign Comprehension” by Tamar Ben-Bassat And David Shinar, Ben Gurion University Of The Negev, Beer-Sheva, Israel, Human Factors, Volume 48, Number 1, Spring 2006, page 193

[10] “Evaluation of the Perception of Workplace Safety Signs and Effective Factors” by Amirhossein Davoudian Talab

, Mohsen Meshkani, Amirabbas Mofidi, and Mahdi Mollakazemiha, International Journal Of Occupational Hygiene, May 13, 2013, page 122

[11] “Ergonomic Guidelines For Traffic Sign Design Increase Sign Comprehension” by Tamar Ben-Bassat And David Shinar, Ben Gurion University Of The Negev, Beer-Sheva, Israel, Human Factors, Volume 48, Number 1, Spring 2006, page 190

[12] “Evaluation of the Perception of Workplace Safety Signs and Effective Factors” by Amirhossein Davoudian Talab

, Mohsen Meshkani, Amirabbas Mofidi, and Mahdi Mollakazemiha, International Journal Of Occupational Hygiene, May 13, 2013, page 118

[13] “Hierarchy of Controls” The National Institute for Occupational Safety and Health (NIOSH) website, Center for Disease Control, accessed July 15, 2022  (https://www.cdc.gov/niosh/topics/hierarchy/default.html)

[14] “Evaluation of the Perception of Workplace Safety Signs and Effective Factors”, by Amirhossein Davoudian Talab, Mohsen Meshkani, Amirabbas Mofidi, and Mahdi Mollakazemiha, International Journal Of Occupational Hygiene, by Iranian Occupational Health Association (IOHA), July 11, 2013, page 118.

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