How to Set Up a International Environmental (Health and Safety) Program - Part 1

Businesses look to Environmental (HS) professionals to set up the company's International (and this applies to Domestic as well) Environmental (HS) programs that are compliant with the multitude of regulations.  

A question arises in my mind as to why look to a non-lawyer to establish a program designed to defend a company against legal complaints or violations?  The answer is simple as the E (HS) person works on the practical side of working with these regulations.  Typically the regulation is civil in nature, but there is a criminal side as well.   The difference is essentially based upon intent.  

Example:  A company has a hazardous waste drum of methyl ethyl death that it is transporting to a hazardous waste disposal facility.  As it is being moved within the warehouse of the company it falls over and spills.  This was probably an avoidable error, but there was no intent.  So it is civil.  Versus the same company taking the drum to the creek in the back of the company property and dumping the contents.

There are many E (HS) professionals who understand the regulations, and how to implement an E (HS) program to defend against fines, and penalties.  In fact the way most companies still design, or want to have designed, their E (HS) programs is around regulations, based upon the strategy of 'Defense'.  And so this is how the common E (HS) professional is trained in establishing and implementing a program, from the defensive mode.  The predominate goal and question is "what needs to be done to meet the requirements of the regulations"?  

The problem with this strategy is that the company is always chasing a ghost, and blaming the ghost for being difficult to be caught.  What does this mean?  Minimum requirements are more difficult to attain because these tend to be moving targets.  Regulations, laws, and the like are in a constant ebb and flow of change.  The regulator has their own view of what the regulations say it is all quite variable.

So what to do?

We need to go back to the basic of regulations (aka laws, rules, etc) to understand how to design a Environmental (HS) Management.  

Regulations are the guidelines, or parameters, of how society operates.  Without boundaries there would be anarchy, or people going wild.  There are two primary thoughts on the implementation of EHS regulations:

1)  Strict - The interpretation of the regulation is based on exact wording, with no ability to modify based upon the circumstance.

2)  Intent - The interpretation of the regulation is based on what the drafters intended to address, this gives the ability to adjust based on the particular circumstances.

Pros and Cons on each thought, but there is always a middle ground.

In the USA, in the Environmental world the regulators are moving towards risk based, which is along the lines of 'intent' as described under implementation.  The Health & Safety world exists mainly in mood of strict, so that each element is prescribed in the regulation.

This is why the typical approach of most companies to 'chase ghosts' simply does not work, and frustrates all involved.  So how to determine how to build your EHS program knowing that there are wide variance in variables?

Before any EHS program can begin there needs to be a meeting of the minds.  Senior decision makers must decide what are the no BS EHS priorities of the company.   This can be defined in the mission statement.  But also needs to be defined in policy.  If senior decision makers are not 100% behind this endeavor, then it is destined to fail before it ever begins.  

If the company’s Senior decision makers are not supportive of EHS, a professional EHS person has a choice to make; either continue on with the good fight hoping that management changes its mind (aka Change Maker Extraordinary), or leave for a company that is proactive and in tuned with having a world class EHS program.  The Change Maker Extraordinary has to be ready for the frustration of being blamed when penalties, violations, and perhaps even injury or deaths occur, even though they tried to make a corrective change.  This means having to keep a file of memos documenting each corrective action denied in the event they have to defend themselves in court.  

As long as the Senior decision makers are supportive, being a normal Change Maker is easy.  A normal Change Maker is one that works to change the employee mind set regarding EHS.  Still not a easy task, but doable.  This involves following the steps outlined here.

So now let us assume the Senior decision makers have blessed the establishment of your world class EHS program.  Now what?

When I learned to fire a hand-gun as a police officer the instructor taught me not to focus on the sights, but to look through the sights with both eyes open to the target.  Bring the target into focus and align the out of focus sights with it.  This is the same strategy.

In order to determine that you need to know how far is the target, what is the windage, etc. Now this leads to the first item on your to do list.  Define your target or goal.  It can't be to be compliant with regulations, or zero-accidents, these are measurements of how well you are doing.  The goal has to be built around the business and its particular operation.  It encompasses operation's goal.  This seems easy, so try it.  Oh by the way, it is impossible to do without input from operations, and senior management.  

THINK SMART

• Specific, Clear and Understandable
• Measurable, Verifiable, and Results Oriented
• Attainable
• Relevant to the Operation
• Time-Bound with a Schedule and Milestones

Let's move on to the next step.

This is the Baseline Risk Assessment (BRA).  The BRA gives you your target parameters.  It also gives you the risk priorities.  From this a firing solution, also known as solutions to the risks, can be designed based on company priorities.

The BRA is a no-harm no-foul assessment of a facility.  The results are never to be used to penalize anyone no matter what the issues maybe, except if there are serious life threatening items.  The BRA provides the user with a clear understanding of the current state of affairs for a facility.  It cannot be overstated the results of a BRA can never be used against the facility management.  Otherwise the likely hood of getting a real picture of the facility is slim to none. 

On the Internet there are many examples of what a risk assessment should look like.  Which one to use?  Not anyone of these examples will match your facility.  So now what?

The EHS manager must take time to learn about the facility, the staff, and the operations, usually a week depending on size; Preliminary Phase.  From this information they will then devise a BRA that is broken down into the various media to be evaluated; commonly called multi-media.  Depending on the operation and size the evaluation maybe first divided according to location.  If the facility has a warehouse, a manufacturing area, a maintenance shop, and administration office.  Each area would then have the media associated with it assigned such as warehouse may have haz/non-haz waste storage, forklift, noise, lighting, etc.  The manufacturing area may have electrical, mechanical, LOTO, noise, haz/non-haz waste handling, ergonomics, etc.  And on and on.  Each area will have its media defined in advance of the BRA which should be as all encompassing as possible.

The BRA is then conducted unannounced by the EHS manager.  There should be no time for preparation.  The objective is to get a real picture of the facility.  I remember many inspections being conducted to look at how operations really look, but these inspections would be scheduled. The managers would all run around cleaning up, making sure everyone’s desk were clear, and we were dressed appropriately.  Once the inspection was over, everything when back to normal.  Nothing is accomplished, except wasting everyone’s time.

The attitude of the EHS assessor should be cordial, open, and overall cooperative.  Dress should be no better than the shop level manager.  The goal is to be relatable.  Speak slowly, and never use EHS jargon or acronyms; think Clear, Concise, Communication.  In fact the less you talk the better.  The assessor's primary tools are eyes and ears. 

Assessors should conduct the assessments alone.  This way they are not navigated, and there is less distractions.  All questions will be written down and brought up after the walk through.

END OF PART 1

Djibouti - Environment, and Business Assessment

I have been asked to provide a financial risk assessment of the Republic of Djibouti similar to the one I did on Somalia.  With nearly 4 years of experience I suppose I can provide an assessment of some sort.

The Republic of Djibouti is a speck of a country with most of the population residing in and around Djibouti City.  Note the country name and capital names lack of imagination, which is a cursory indicator to the country itself.  You can read the history of Djibouti on the internet.  It is very boring.  No country existed until the Europeans showed up and put borders up to identify Somalia, Ethiopia, and Djibouti.  Before that it was just a place that normal people avoided.  It has only 2 redeeming features found in its deep sea port and industrial salt.  It has been referred to as the gate of hell for good reason.

The best overall assessment comes directly from the US Ambassador to Djibouti, Ambassador Geeta Pasi, and I quote her, "The only thing good in Djibouti is the watermelon, and that isn't even grown here."

Environment
It is hot, hot, and more hot, add to that days of humidity and it is even more hot.  Nothing grows here, except down around the city.

The soil is salty and of very low quality.

There are no endangered plant or animal species in the area.  I did find ducks at a artificial wetland created by the US Military's sanitary water discharge.  When I reported to the military that there were ducks, which no ducks have ever been seen in Djibouti, in the wetland, the seabees immediately destroyed the area.  What ducks?  What wetland?  :-)  I still got the photos :-)

Regarding plants, I wouldn't expect any unknown cures to be found in these badlands.

The drinking water is of very low quality, and is being contaminated with salt, with help of both the city and US Military Base (Camp Lemonier) pumping out water from the primary aquifer faster than it can naturally recharge.  This allows for infusion of sea water which is pushing its way inland to fill the void created by the two users.  Actually, the US military water pumps impact the aquifer more due to its proximate location next to the ocean.  The US military doesn't really care about its impact to the aquifer, because they use very high tech reverse osmosis water filtration, while the locals have none.  There is biological water quality issues regarding this water as well.  So for most people not native to the area, this water is off limits.  Which is good from an economic stand point for the water bottlers in the area.  Avoid Zam Zam as a drinking water source.  It is known locally as water that will cause people to get sick, but without many choices the poor public takes its chances with Zam Zam.

Sanitary system is near non-existent.  All sewer flows out a discharge point raw into the ocean in town.  Recently the Ministry of Sanitation made some improvements to the discharge point by putting up a wall so no one sees it, out of sight out of mind.  I have never seen any ocean water quality testing so I can't comment on the impact this sewer is having to fish or even swimmers.  For myself, I don't eat any fish in Djibouti.

Air quality is moderate to sub-par.  By driving out of the city up to a location called Arta, up on a high hill top, you can see down on Djibouti.  From this vantage point you can see how bad the air quality is around the city...nasty.

Waste management is a oxymoron phrase when used in regards to Djibouti.  The EU is once again trying to help the Djiboutian manage their municipal waste by installing a modern landfill.  Only problem is that Djibouti ain't got enough working dump trucks to pick up all the waste.  In the poorer sections of town the waste is still tossed on the ground for the goats to eat, natural recycling.

There is zero in country capacity for handling of any hazardous waste.  If you need to address this topic, just cry and hide your head in the ground like a Djiboutian.  There is actually some expertise in this area, but no equipment or seriously trained and organized staff.  There was a petroleum spill at the port which no one knew how to address, so the oil simply washed up on land.  Now there is a multi-million dollar lawsuit against the oil company.  Both the Port of Doraleh (DP World) and Port of Djibouti have no real response plan in the event of a spill.  The answer from both is that the Port Authority will take care of it.....head in the sand.

Side note regarding spills.  You want to clean up a site in record time?  Have a spill in Djibouti and see it cleaned in the time it takes to wire transfer $XXX,XXX.00 to an Swiss bank account.  A Russian transport provides a good example.  This 'un-named' ship dropped two 55 gallon drums of oil into the waters of the port.  They were recovered with most of the contents.  But the Minister in charge of the port, named not included but he is the current Ambassador to China, had a study conducted that showed that the port waters were significantly damaged.  During this investigation the ship was held in port.  The ship's owner flew down from his Russian enclave and met with the Minister.  Direct discussion took place, and $500,000 wired was the cost to get a clean bill of health---just like that.

Environmental Risk Conclusion
Huge financial risk associated with any manufacturing activity that has the potential of contamination on land or water.

Business
The ability to establish a business is straight forward and easy.  Business law is the same as you are familiar with in the EU or USA.

The process of setting up a business is made complicated by the number of hands that are stuck into your pocket, especially for western businesses.  These hands include national government, as well as in-country agents.  The biggest hand in the pocket comes from the President and his wife Kadra Mahamoud Haid.

He is a chart that outlines the business ties that will help the user determine where their investment is best spent:

The US Embassy in Djibouti provides US businesses with no support.  They will hand you a pamphlet with contact information for setting up your business in Djibouti.

Although there are reports that private land ownership is liberal.  This is not quite true.  It is based on the government's or the Minister of Land and Budget's mood or one of his friend's mood.  Documents can appear and disappear, and names can be changed.  You can have a land document that looks official along with being sealed by the right people, but that doesn't guarantee nothing.  Just assume that as long as your business is doing good you are okay.

There are now 10 local banks in a country of 850,000 people, and a economy of no more than $2 billion USD, with just a smattering of economic activity.  It is incredibly difficult to get a loan, and if you can circumvent the red tape that money will cost you on the low end 9% up.  But beware there are
some banks on the US watch list, that could get you caught up with terrorist.  Don't ask the US Embassy which bank to trust, they will only send you to a web site for you to figure out yourself.  The reason for so many banks, money laundering.  I actually overheard Russians speaking with a lawyer on money laundering at a restaurant.
The labor laws are a nightmare.  No business will want to deal with hiring anyone directly.  Which is the purpose of the mess.  You need to use one of the local labor brokers.  So you know how that works, for every $1 you pay the worker gets $.25 if he/she is lucky, and then they have to pay taxes on the full $1.  There is the other part of the labor story in Djibouti, most Djiboutians are heavy drug addicts; from the President down to the ditch digger they all MUST have their khat ( http://www.esquire.com/features/travel/ESQ0906KHAT_182 ).  There are some that utilize sociably as one would drink a beer after work, and fewer still who don't touch the stuff.  But for someone considering establishing a business in Djibouti, and using the local labor market for skilled reliable labor.....be real.  It would be far less frustrating to just ask for 10 names, pay them $1000 per month and don't expect them to ever show up.  If they do show up, don't expect much work.

As a westerner everything you purchase will be jacked up in price by at least 50%, but don't be surprised to see 100%.  Everyone, French/Djiboutian businesses, will do their best to convince you that is normal prices.  It is Djibouti, sorry.

Key Point:  There are 'tribes' here.  If you have a supporter from one tribe, that doesn't mean you can get things done.  The other tribes may have people in the positions that you need to have something accomplished, and if they don't support you, well you get the picture.

Terrorism was not a issue prior to June 2014, but now it is of high concern for western companies and personnel.

Risk is associated with application of the law.  It is based on what a local wants it to be.  You as a business owner have no legal protections, even as a corporation or limited liability corporation.  Criminal law will be applied before commercial, so you or your general manager can end up in jail.

In the likely event that you are picked up by the police you should know that Djibouti has a constitution and laws.  They provide the same rights you as a westerner are familiar with no matter what anyone might want to tell you.

You have the right to a lawyer, if you can't afford one the court will assign one.  You don't have to speak to the police without a lawyer present.  If you don't speak French, the police have to provide a translator.  Never ever ever ever sign anything the police hand you, no matter what they say.  The police can only hold you for 48 hours without charges.  Your embassy must be contacted within 24 hours.

The embassy consulate's job is very specific but important as quoted by Consulate Byron Hartman, "to ensure that the host country laws are applied equally and fairly to you".

The embassy won't bail you out, or give legal advice.  But if your human rights are being violated in anyway, such as no lawyer, they are obligated to protest (officially).  There is no such thing as 'Bail', but they are not going to hold you for more than 48 hours, unless someone high up really doesn't like you.  No matter what is told to you, unless the US Embassy agrees, never ever give up your passport; by the way it is against US law for the US Embassy to agree.

Business Risk Conclusion
The law is applied arbitrarily.   Your investment is in high risk.  Plan on at least 30% of your capital to go towards government personal pockets.  If your company is too successful, plan on it getting taken away.