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Ask Enhesa: Vol. 3

21 Apr. 2017 By Tjeerd Hendel-Blackford, Jade Kennedy, Gabriela Rodriguez and Wassila Nabourema

You asked and we answered!
Enhesa’s team of multilingual regulatory analysts are committed to providing quality insight and analysis around the latest EHS news and developments via our Enhesa Flashwebinar series, and blog posts. In response, our team often receives a variety of questions regarding the broad realm of the EHS topics we cover. To meet this demand, we are pleased to announce “Ask Enhesa”, a new reoccurring blog series where our senior thought leaders will take the lead in answering all of your most relevant and topical EHS questions.
Let’s get started…

Q: What are the most regulated topics in the world? and which have the biggest fines?

Tjeerd Hendel-Blackford: First, with regards to the most regulated topics, we have a good idea on which areas see the most regulatory activity as we cover around 4,000 developments across 270 jurisdictions every year! In our recent Global EHS Regulatory Forecast we pointed out that in the past five years the topics with the most regulatory developments (laws, proposals, policies, etc) largely related to climate-change issues such as air emissions; energy efficiency of processes and buildings; renewable energy, emissions trading etc,. We also saw a lot of activity in topics such as environmental permitting – which indicates a move to regulate facilities more using integrated permits, perhaps following the European model.

With regards to which topics have the biggest fines, this is perhaps a little harder to answer as there is a great variation in the amount of enforcement information that is published around the world. However, one thing we can say is that the U.S. tends to lead the way in terms of sizes of fines, and that fines for environmental infringements (pollutant discharges to air and water notably) tend to be higher overall than those related to safety. Other countries are also upping their game when it comes to enforcement though. In the UK for example, Health & Safety Executive (HSE) enforcement statistics show that the largest 20 fines to businesses for health and safety violations in 2016 were three times more than the largest 20 fines in 2015, and eight times higher than in 2014[1]. In China as well, there are more focused enforcement efforts. In one recent news release on 17 April 2017, it was reported that 239 out of 329 companies inspected in the Beijing-Tianjin-Hebei region, were to be charged with violations related to illegally producing pollutants and lacking pollutant reduction equipment[2].

Fines, of course, are only one piece of the enforcement puzzle. Criminal penalties (prison) and operational shutdowns are also penalties that we see on the increase. This is before we even touch on the less-definable consequences of non-compliance with EHS laws

 

Q: What is the status of GHS implementation in Australian States that haven't implemented the model WHS laws?

Jade Kennedy: The GHS (third revised edition) was introduced in Australia under the model Work Health and Safety laws on 1 January 2012, with a five-year transition period to allow companies time to implement necessary changes to their operations. Following the expiry of this transition period, the GHS became mandatory in all Australian states and territories that have implemented the relevant sections of the model WHS laws on 1 January 2017. This includes New South Wales (NSW), Queensland, the Northern Territory (NT), South Australia (SA) and Tasmania. As a result, hazardous chemicals that are manufactured, imported, supplied or used in these states and territories must be classified in accordance with the GHS, and must be accompanied by labels and safety data sheets that are GHS-compliant. 

Western Australia (WA), Victoria and the Australian Capital Territory(ACT) have not yet mandated use of the GHS. In these jurisdictions, companies can choose whether to continue classifying and labelling hazardous chemicals in accordance with the previous Approved Criteria (AC) system established by the National Occupational Health and Safety Commission (NOHSC), or to classify and label chemicals in accordance with the GHS. In Victoria, companies that choose to comply with the GHS may comply with either the third, fourth or fifth revised edition. Companies in WA and the ACT, however, must comply with the third revised edition.

It is important to note that while WA, Victoria and the ACT have not implemented mandatory use of the GHS, chemicals that are manufactured in these jurisdictions for export to a state or territory that has implemented the GHS will need to be GHS-compliant. Similarly, chemicals used in WA, Victoria and the ACT may have been manufactured in a state or territory where the GHS is mandatory and will therefore have been classified and labelled in accordance with the GHS. In such cases, workers should be provided with training in order to ensure proper use and handling of the chemical without risks to worker health and safety. 

 

Q: Can you talk to best practices for a global regulatory compliance process?

Tjeerd Hendel-Blackford: Yes. In fact, we could talk about this all day long! We have worked with companies managing (and implementing) global EHS programs for more than 25 years. Based on our experience we would say that there are five common denominators for best-practice:

  1. Lead from the top
  2. Involve everyone
  3. Speak everyone’s language
  4. Support, train and inform.
  5. Choose the rights tools and services

The desire and need for a global approach needs to come from the top. Without corporate buy-in and commitment, a global approach will not happen. We have written separately on the reasons for a global approach.

Of course, a global outlook for corporate EHS regulatory compliance does not mean taking responsibility away from local site knowledge and expertise. Far from it. In general, by setting the tone, the standards and the priorities, a corporate EHS function guides, inspires and gives more weight and ownership to on-site personnel working in the field. If, as a plant EHS manager, I feel my corporate heads are watching out for me, giving me the structures and financial support that I need to do my job (including services I can use in my own native language as well as English), I will feel more valued and will perform better. In turn, if I support my global and regional EHS structure through measuring, calculating and reporting on my local EHS performance and challenges, I am directly inputting into the corporate strategy and directly influencing the safe-working and environmentally-conscious practices of my colleagues around the world.

In terms of involving everyone in the company and the need to select the right tools and services, the following are essential to help to achieve this:

  • Global coverage – apply a consistent service across all of your sites;
  • Enable (or support) simple filtering of which laws and requirements are applicable;
  • Ensure that regulatory compliance information provide is clear, and has suitable guidance;
  • Provide tools, information and training both in English but also (and often more importantly) in the local language of the in-country users;
  • Make sure you have a regulatory support service from EHS regulatory experts from the countries in question;
  • A standardized, easy to use interface with the necessary level of details for different levels of user; and
  • Frequent updates, with changes clearly indicated and notified.

 

Q: Does Enhesa intend to expand its coverage of Mexico and Brazil?

Gabriela Rodriguez: Yes, indeed! We have seen a spike in demand for our services covering state-level EHS law in both countries. We have been covering the Federal jurisdictions for many years, and a number of states across both countries too – but we are currently investing in expanding our coverage.

Mexico has 32 state jurisdictions. Today we provide quarterly-updated Compliance Intelligence for 26 States in Mexico, by the end of 2017 this will increase to 29 and by next year, 2018, we will complete our coverage of Mexico!

Brazil has 28 states and today we cover 10 of these. By the end of 2017, this number will increase to 14 and by the end of 2018 we will cover 18 states in Brazil as part of our standard catalog offering for Compliance Intelligence.

Of course, if in the meantime we have client demand for any jurisdictions we don’t cover today we can move to cover those and re-arrange our priorities!

It is also worth mentioning that not only are we able to provide concise analysis of your EHS legal obligations in both Mexico and Brazil in English, but we can also provide this in Spanish and Portuguese, respectively.

 

Q: What are the latest regulatory developments regarding office ergonomics? 

Wassila Nabourema: The most notable development in this regard in recent months has come out of Africa. At the beginning of 2017, South Africa introduced a very interesting proposal, on ergonomics safety, the Draft Ergonomics Regulations, 2017. The proposal would mandate employers to undertake a thorough ergonomic risk assessment of the workplace, and develop a training program for employees and other persons exposed to ergonomic risk factors in the workplace. Moreover, once adopted, the Draft Ergonomics Regulations would also require manufacturers, designers, and suppliers of machinery, equipment or other articles for use at work, to provide ergonomic risk information. It is worth emphasizing that South Africa will be somewhat of a trailblazer in this regard. Ergonomic risks are generally not heavily regulated in many countries around the world (provisions tend to be focused on a general duty of care and this is a more guidance-based approach). To date, there are only a few countries such as Sweden and South Korea, that require employers to carry out an ergonomic risk assessment. 

That’s all for now! Stay tuned for the next edition of Ask Enhesa or read Vol. 1 here.

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