“At Coca-Cola over the years, a parade of self-styled experts came and went both as inside employees and outside consultants, and sometimes we let them persuade us to do things that our better judgement, our gut instincts, warned us not to do – but like all fallible human beings, we had a week moment or two.”[1]
The quote above is from “The Ten Commandments for Business Failure” by Donald R. Keough who was the former president of the Coca-Cola Company. Mr. Keough’s seventh commandment is to put all your faith in experts and outside consultants[2]. I am not judging the use of outside experts: I was a consultant and I have used outside experts. However, after I read Mr. Keough’s book, I paused to think about how I used them since Mr. Keough obviously knew more about business than I did. The following sections discuss a little about when you might need to use some outside experts and general information on those groups.
9.1 Contractors
I am assuming most facilities will need to use contractors for some work on their site. Even if the work is not EHS-related, these activities could result in EHS issues at your site. Section 7 discusses contracts and agreements that you might want to put in place with your contractors so that they conduct their operations in a safe and environmentally friendly and compliant manner. This does not guarantee that they will operate in this manner but provides you a mechanism to require them to operate in the appropriate manner or seek injunctive relief.
Some companies will conduct an evaluation of their contractors to see if they have a history of operating in a safe manner. The Occupational Safety and Health Administration’s (OSHA) Process Safety Management and Environmental Protection Agency’s (EPA) Chemical Accident Prevention Program (CAPP) regulations require this for contractors working on or around covered processes[3]. These evaluations, whether required by regulation or not, might include requesting Total Incident Rate (TIR) and Days Away, Restricted or Transferred (DART) numbers, copies of health and safety and sustainability programs and possibly required certifications. You can pay companies to gather this information and evaluate it for you. I found this to be common in the oil and gas industry, but in other industries, it might not be common, and some contractors may not be used to these requests.
9.2 Consultants
In Section 6.2.2, I discuss how I used consultants for audits because they provide an outside and unbiased perspective. I worked to build in-house expertise but would leverage consultants to assist with issues that we had not built-up our expertise. When we had too much work (e.g., the company had a lot of projects), I would use consultants to handle overflow since I did not want to hire someone and then potentially run out of work for them.
Some EHS activities require certifications, licenses or background that your company does not have, so you need to use a consultant to assist you if you lack that in-house. Examples include asbestos sampling, well installation, Spill Prevention Control and Countermeasures (SPCC) plan certification and Phase 1 Environmental Site Assessments (ESA). Other EHS activities do not legally require certifications, licenses or backgrounds, but it may be a good idea to use consultant. Examples include industrial hygiene monitoring, air construction and operating permit applications, remediation system installation, and soil and groundwater sampling. Some state agencies will provide a list of consultants that may have qualifications or certifications. I am not certain if these lists are vetted by the state agency and I know that most state agencies do not recommend consultants.
Section 7 addresses proposals, contracts and other agreements that you might want to implement with your consultants. I liked to have a master services agreement in place with consultants so they would only need to provide a proposal that references the master services agreement. This prevents having to review a legal document every time you want to use the consultant. The proposal would identify the specific task activities and associated costs. The consultant would provide a rate schedule with hourly rates for their services and equipment. This rate might change from year to year, and they may provide you a new rate schedule periodically.
I also liked to have a general services task that would allow me to task the consultant with miscellaneous activities without requiring a proposal. Some consultants will do this if the general services task was under a certain cost or number of hours. This would allow me to call a consultant with a question that might take fifteen minutes to answer, and the proposal could take just as long. This saves the consultant’s time and allows them to maximize their chargeable time (i.e., time writing proposals may not be charged to a client, so consultants do not want to spend a lot of time doing this activity).
9.3 Lawyers
Although you may have in-house counsel, you may need to solicit outside assistance since labor and environmental law can be specialized. Section 5 discusses attorney client privilege and work product and why you might want to engage an attorney. Section 18 discusses regulatory agency inspections which might also be a reason why you want to engage and attorney.
Lawyers will typically send an engagement letter as a contract for their services that will identify their hourly rate and it may specify the minimum reporting timeframe (e.g., they will charge in 10-minute increments).
[1] “The Ten Commandments for Business Failure” by Donald R. Keough, The Penguin Group, New York, New York, 2011, page 99
[2] Ibid, Page 97
[3] 29 Code of Federal Regulations (CFR) 1910.119(h)(2)(i) and 40 Code of Federal Regulations (CFR) 68.87(b)(1)
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