Best Practice Solutions Series Volume 7: Determining Site-Level Requirement Applicability

by Tjeerd Hendel-Blackford 11 Feb. 2019

Greetings reader! Thanks for joining us for the seventh volume of the 12 Best Practices of Compliance Solutions Series.

In this series we will address twelve of the key challenges you face, one-by-one, with best-practice advice derived from over a quarter of a century of support to global industry.

Volume 1, regarding staffing challenges, can be accessed here.

Volume 2, on the challenge of mergers and acquisitions, can be accessed here.

Volume 3, on getting leadership commitment, can be accessed here.

Volume 4, on ongoing compliance management, can be accessed here.

Volume 5, on rolling out a global program, can be accessed here.

Volume 6, on self-assessing/auditing, can be accessed here.

In this volume, we examine the challenge of ensuring your sites know which laws and specific requirements apply to them.

Challenge:

Enhesa has over 65,000 EHS regulations (laws) in its database that cover more than 285 jurisdictions around the world.

However, this only tells a part of the story; these numbers include laws/regulations that may not contain any requirements on industry. For example, they may simply designate an authority as being responsible for enforcement or provide a list of regulated chemicals.

If we take another view on this and look at the numbers of auditable requirements that Enhesa analysts have derived, there is (at time of writing) a staggering total of 154,611 requirements across all jurisdictions covered.

This is oversimplifying the issue –the amounts of regulations and associated requirements will fluctuate across different countries/states, as we can see in these specific examples from the Enhesa database:

  • China: 4,241 Regulations > 5,236 Requirements
  • Canada: 1,470 Regulations >8,487 Requirements
  • Brazil: 1,931 Regulations >2,620 Requirements
  • France: 1,470 Regulations > 1,236 Requirements
  • Germany: 1,801 Regulations > 2,430 Requirements
  • India: 598 Regulations > 4,444 Requirements
  • Mexico: 1,475 Regulations > 4,647 Requirements
  • U.S.A.: 7,416 Regulations > 36,991 Requirements
  • UK: 1,748 Regulations > 4,577 Requirements

This highlights the importance of cutting through the complexity in terms of volume and determining what actually applies to your sites.

However, these raw numbers do not tell the full “complexity” story. For example, most laws will have many—potentially hundreds—of citations/articles, but many of those will not actually contain requirements that require sites to take action. Instead, they will include definitions, enforcement provisions or provide additional guidance. The number of Enhesa requirements already represents a distilling of what is relevant to industry as a whole within the laws in question.

Enhesa Team Lead Wassila Nabourema notes that “the legal complexity of a piece of legislation is not necessarily based on the number of citations within a regulation. I cover regulations with few citations but are still quite obscure. Similarly, I cover some very long laws with over a hundred citations that are straightforward. One of the main challenges then becomes determining what requirements would be applicable to the client.”

On top of this, every company is different—every site in every company will have differences. This means that the regulations and requirements applicable to a given type of operation, and individual location, will often vary. The challenge is to avoid wasting time by focusing only on the obligations that apply in each specific case.

Best Practice:

By applying consistent data, structure and functionality to regulatory intelligence, it is possible to cut through the irrelevant legal obligations and focus on what is applicable to each of your sites. Applicability screenings of laws at the regulation and specific requirement level allow for this.

Industry Scope Screening

Ensure that you source the appropriate level of regulatory coverage for each of the jurisdictions you operate in. For example, if you have manufacturing sites across different provinces in China, the applicable regulations you need to be aware of will be very different than if you have a sales office in Shanghai.

You do not want to pay for more information than you need. It is imperative to ensure that your source of EHS Regulatory Intelligence allows, at the initial contractual level, to select the appropriate “scope” coverage for broad operational types. For example:

  • Manufacturing
  • Warehouses/Data centers
  • Administrative offices

Further jurisdiction-specific applicability screenings can take place using simple and concise applicability questionnaires. To avoid repetitive work, it is best practice to create a site-type profile that can be applied to other similar sites.

Applicability Screening

Once you have access to the broad package of laws (acts, rules and regulations) that might apply to the type of operations you carry out in a given location/jurisdiction, your next step is to determine which specific requirements you need to do something about.

A first level of screening should allow the filtering out of applicable requirements based on generic (non-jurisdiction-specific) thematic screening questions. For example: “Does the facility emit greenhouse gases into the environment?”

A second-level of filtering of requirements should be carried out based on jurisdiction-specific screening questions.

Finally, if any individual requirements slip through this filtering process, you must determine if they apply or not.

In respect to applicability screening, best-in-class companies record this screening in some form of application that is regularly updated and flags regulatory change. If something changes, the applicability of a specific regulation or requirement can be reviewed. Similarly, the system used should allow change if something at your site (process, equipment, etc.) has changed.

Screening Staff

Site-level staff know their sites best; they are best placed to determine which laws apply to them based on their sites’ specific circumstances. However, site staff may not be lawyers and could struggle to determine which regulations apply to them. So in practice, who is best placed to do applicability screenings will depend on different considerations.

Having clear screening questions is the first step to address this. This should make it easier for site-level staff— whether or not they are lawyers or have experience reading laws—to carry out screenings themselves.

However, site-level staff remain busy and sometimes laws remain technically complex – regardless of attempts to consolidate and simplify. As a result, many Enhesa clients make use of external Applicability Screening Support—where site staff can receive assistance from regulatory analysts to determine applicability. This may be a quick phone call – or it may be an on-site assessment.

Which approach is preferable? In practice, a combination of approaches tends to work best. It is important for sites to remain engaged in what is required of them by the law, as they will ultimately be responsible for ensuring compliance with it.