“Every company must have an environmental management system.”

Many EHS coordinators would agree with this statement. And, as a statement of values, it makes a lot of sense. After all, to any company with an earnest concern for conserving the planet, the need for an environmental management system (EMS) is self-evident. But such companies are few and far between. In the business world in which most EHS coordinators operate, having the right values doesn’t always translate into having the right environmental systems. An EMS can absorb massive amounts of money, time and administrative effort. Appealing to values might not be enough to justify such an investment.

The EMS & the Need for Compliance

One motivation that does work is the desire to comply with the laws. For example, in a recent Ernst and Young survey, 82% of large BC companies cited compliance as their primary motivation for adopting an EMS. But does the law really require a company to adopt an EMS? A legal case can be made for adopting one.

But be careful. You can’t simply march into your CEO’s office and proclaim that “we need an EMS because the law requires it.” The CEO might just call your bluff and ask you to cite the law. And then you’ll be in a bind because such a law does not exist. This article will get you out of the bind by explaining what the law does and doesn’t say about an EMS and show you how to make the legal case for adopting one.

The Law of Environmental Management

The law does not require a company to have an EMS. In fact, the terms “environmental management system” or “ISO 14000” don’t even appear in any of the environmental statutes and regulations.

What the law does require is that all companies implement a proper system to prevent the commission of environmental violations. Although they may sound the same, a proper system to prevent violations is not the same thing as an EMS. To come to grips with your legal obligations, you need to understand the differences.

What exactly is a “proper system”? It’s essentially a set of organized and sustained measures to manage the environmental aspects of a company’s operations. Although the specific measures required will vary by company size, resources available, the degree of harm involved and other circumstances, the general consensus seems to be that a “proper system” must be proactive and, at a minimum, provide for:

• A company statement of environmental policy;
• Leadership by persons with experience and authority;
• Remedial and contingency planning for spills;
• Employee training and awareness efforts;
• Regular auditing; and
• Continual efforts to improve the system.

What Is an EMS?

The terms “proper system” and “EMS” are sometimes used interchangeably. If the discussion is about how to comply with environmental laws, this usage is inaccurate. The implementation of an EMS is not a legal obligation but a voluntary undertaking to attain certification from non-governmental standard-setting organizations such as the International Standards Organization (ISO). The definition of EMS that most people use comes from ISO 14001:

“Part of an overall management system that includes organizational structure, planning activities, responsibilities, practices, processes and resources for developing, implementing, achieving, reviewing and maintaining the environmental policy.”

This definition of EMS is at least consistent with and in some ways similar to a “proper system” for preventing violations. The overlap is even more pronounced when you look at the components of an ISO 14001-compliant EMS:

• A company statement of environmental policy;
• An assessment of the environmental impacts of the various parts of the company’s operations;
• The establishment and documentation of environmental targets;
• Communication and coordination among staff;
• Consistency between environmental policies and operational and emergency procedures;
• An environmental management system;
• A clearly defined responsibilities and reporting structure;
• Employee training and awareness;
• Audits and monitoring; and
• Continual efforts to improve the system.

Conclusion

One of the biggest reasons for adopting an EMS is to ensure that environmental violations don’t occur. As a fallback, companies think they’ll be able to rely on the fact that they have an EMS as a defense against liability for any violations they do commit. Is this a valid assumption? How does having an EMS affect a company’s risk of liability? I’ll explain the relationship next week on Monday, in the Compliance newsletter.

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