2013 August 07

Environmental disasters and criminal investigations

Originally posted July 17, 2013 by Ronald A. Sarachan on http://www.insidecounsel.com

Despite volumes of government regulations related to workplace safety, and enormous resources devoted by businesses to safety, we still experience major industrial disasters. Most recently that list includes the explosion at a West, Texas fertilizer plant, as well as many smaller incidents. Needless to say, such nightmare scenarios raise difficult issues, including the initial emergency response, business disruptions with customers and suppliers, press questioning, inquiries from various elected officials, internal personnel and labor issues, disclosure obligations, and on and on.

The challenges are significantly increased by the number of different government agencies that converge on incident sites. Depending on the type of incident, they may include the Occupational Safety and Health Administration, the Environmental Protection Agency (EPA), the Department of Homeland Security, the Federal Bureau of Investigation, the Coast Guard, the Chemical Safety Board (CSB), the Mine Safety and Health Administration and other federal agencies, in addition to their state counterparts and state and local police. Many of these agencies will be seeking information—in the form of documents, physical site inspections, answers to agency queries and employee interviews—and insisting on very quick responses, typically before the company has completed its own internal investigation.

The situation is made even more demanding by the lack of coordination among the various government entities. The one point at which the government may be well-coordinated is the emergency response immediately following the incident. At some major incidents, for example, the Coast Guard has exercised a unified command. However, once that initial stage is over, all bets are off. The government agencies all have different missions, different resources and different legal authorities, and they generally proceed independently. The result is that the company can expect to receive multiple information requests of different types from different agencies more or less simultaneously, which to some extent will be duplicative but to some extent differ. Each agency also has its own procedures and protocols. Who may be present along with an employee at the employee’s interview, whether the interview is under oath, whether it is transcribed, and whether the employee can get a copy or review the interview transcript, are all questions the answers of which vary from agency to agency. It is critical to fully understand these differences.

A particularly thorny issue, for both the government and businesses, is the overlap of administrative and civil investigative and enforcement actions on the one hand, and the potential for criminal action by the government on the other. This overlap is made very real by the existence of federal environmental criminal provisions that are based, not on criminal intent, but only on strict liability or negligence. For example, it is a crime under the Clean Water Act to discharge harmful quantities of oil in connection with activities under the Outer Continental Shelf Lands Act which affected natural resources of the U.S. as long as the discharges are deemed to have been negligent. And the Migratory Bird Treaty Act contains criminal provisions based on strict liability. Both have been charged in recent cases.

When an agency such as the Chemical Safety Board requests an employee interview, its purpose is not to develop evidence for a criminal prosecution. CSB has no enforcement authority, much less criminal powers. Rather, its role is solely investigatory. It investigates industrial accidents at chemical facilities in order to make reports and recommendations to improve industrial safety. In this regard, the company and the CSB should have shared interests, which would provide a reason for the company to encourage its employees to cooperate with the agency.  Presumably to encourage company employees to speak freely to CSB investigators, the CSB has advised witnesses that it is not its practice to share interviews with other government agencies

Auto Companies Save Greenbacks by Going Green

Originally posted July 01, 2013 by Jack Rubinger on http://www.duralabel.com

Whether you’re a car-making giant like Subaru or a supplier to the Big Three, the automotive industry is taking serious strides toward generating zero waste. A wonderful YouTube talk and an up-close-and-personal tour of an Oregon plant both offered some insight into being more environmental in the industrial environment.

Subaru’s Story

How did Subaru begin going down the road toward generating zero waste?

It all started by tipping over all the dumpsters in their plant to see what they were generating. As it turned out, there was a lot of waste which was weighed and measured by managers who were made environmentally accountable for the material, explained Denise Coogan, environmental manager at Subaru Automotive of Indiana, which manufactures the Legacy, Outback, Tribeca, and Toyota Camry.

“Those who aren’t thinking about what they’re generating in the plant, how they’re accounting for that, how they’re inventorying that material, will be left in the dust,” Coogan said.

Reduce, Re-use, Recycle

She continued with an overview of the three R’s—reduce, re-use, and recycle. Starting with reducing, the plant implemented an idea from an associate to reduce the amount of steel coil used by optimizing each run—whether it was hoods or hatches.

Moving on to re-use, Coogan’s team took something less dramatic—the Styrofoam used to pack components from Japan—and affixed a label to each container containing the used Styrofoam indicating the number of times the packaging has returned to the supplier. Some containers have made the round trip to Japan 15 times!

As for recycling, Subaru’s 3,500 associates recycle paper and soda cans as well as steel—some 25,000 tons. All told, there’s been a 50-percent reduction in waste generated at the plant since 2000.

“Waste is material that just hasn’t found a use yet,” noted Coogan, who regularly motivates associates to drum up more ideas to reduce waste. A recent treasure hunt campaign yielded 1,400 ideas from associates, who appreciate the human touch that managers can offer when they’re listening and hearing workers’ ideas.

JAE Shines

On a small but no less significant level is the work being done here in our own backyard by automotive component manufacturer JAE Oregon, which produces wiring harnesses used to deploy vehicle air bags for global giants like Honda, Toyota, GM, Chrysler, and Volvo.  JAE employs about 200 workers.

Many talk a good game but rarer are those who show how it’s really done. I enjoyed a personal tour of JAE led by Rick Mainhood from the lobby to the lavatory, from the plant floor to the parking lot. Rick is JAE’s Kaizen and 5S Coordinator.

When you tour the plant it’s evident that all the assembly areas are models of efficiency and economy—nothing but the essentials. With modest conference rooms and offices on one side of a hallway and several large, open assembly, manufacturing, plating and stamping areas, there is clearly no area, no space that doesn’t have a specific function. Nothing is random here.

“We recycle metal, plastics and cardboard, and we don’t use new material if we can use recycled material. The more we reduce waste, the more profitable we are, and the more money goes to our workers rather than being left on the floor,” said Mainhood.

Reducing waste isn’t just about material waste. Being environmental in the industrial environment also means reducing the number of steps needed to perform a job, knowing where to find tools, tracking the number of units in production, and knowing who is covering every shift and every task. If you have to think about these steps or ask a manager, then you’re wasting time and resources.

After all, if you can see from a quick glance at a production board that a particular machine is now two thirds full and will need to be refilled in 30 minutes, then you’re ahead of the game. Because if you have to go out to the storage room to get a tool, that means there is time that a machine isn’t running and cranking out product for customers waiting a thousand miles in away.

Labeling virtually every door, entrance, shelf, work area, machine, tool, office, chemical storage, and electrical appliance to the point of obsession makes an enormous difference at JAE Oregon. Even someone working a drill press has step-by-step operating instructions posted on a label where they’re easiest to read.

Given this obsession with labeling and knowing that labels tend to get worn and abused in industrial settings, Mainhood uses labeling systems from Graphic Products, Inc., including the DuraLabel Toro, which prints four-inch-wide labels and the DuraLabel 9000 which prints nine-inch-wide labels.

Though it’s doubtful that JAE’s Mainhood and Subaru’s Coogan have ever met, I’m sure both would agree that there are several good business reasons to go green, including reducing the carbon footprint and environmental impact, saving cost on materials and waste disposal, improved morale, enhanced brand and community awareness, and promotion of creativity and innovation among employees.

Other industries are already taking cues from the automotive industry. Subaru has mentored 700 companies—producing items from rocket ships to potato chips. Isn’t it time your company took further steps to lay down the ground work to be an environmentally friendly industry?


Alternative Treatments Could See Wide Acceptance Thanks to Health Care Reform


The Affordable Care Act says that insurance companies “shall not discriminate” against any state-licensed health provider, which could lead to better coverage of chiropractic, homeopathic and naturopathic care. Photo by Joe Raedle/Getty Images.

Jane Guiltinan said the husbands are usually the stubborn ones.

When her regular patients, often married women, bring their spouses to the Bastyr Center for Natural Health to try her approach to care, the men are often skeptical of the treatment plan — a mix of herbal remedies, lifestyle changes and sometimes, conventional medicine.

After 31 years of practice, Guiltinan, a naturopathic physician, said it is not uncommon for health providers without the usual nurse or doctor background to confront patients’ doubts. “I think it’s a matter of education and cultural change,” she said.

As for the husbands — they often come around, Guiltinan said, but only after they see that her treatments solve their problems.

Complementary and alternative medicine — a term that encompasses meditation, acupuncture, chiropractic care and homeopathic treatment, among other things — has become increasingly popular. About four in 10 adults (and one in nine children) in the U.S. are using some form of alternative medicine, according to the National Institutes of Health.

And with the implementation of the Affordable Care Act, the field could make even more headway in the mainstream health care system. That is, unless the fine print — in state legislation and insurance plans — falls short because of unclear language and insufficient oversight.

One clause of the health law in particular — Section 2706 — is widely discussed in the alternative medicine community because it requires that insurance companies “shall not discriminate” against any health provider with a state-recognized license. That means a licensed chiropractor treating a patient for back pain, for instance, must be reimbursed the same as medical doctors. In addition, nods to alternative medicine are threaded through other parts of the law in sections on wellness, prevention and research.

“It’s time that our health care system takes an integrative approach … whether conventional or alternative,” said Sen. Tom Harkin, D-Iowa, who authored the anti-discrimination provision, in an e-mail. “Patients want good outcomes with good value, and complementary and alternative therapies can provide both.”

The federal government has, in recent years, tapped providers like Guiltinan, who is also the dean at the Bastyr University College of Naturopathic Medicine, to help advise the federal government and implement legislation that could affect the way they are paid and their disciplines are incorporated into the health care continuum. In 2012, Guiltinan, based in Kenmore, Wash., was appointed to the advisory council of the National Center for Complementary and Alternative Medicine, part of the National Institutes of Health.

Proving that alternative medicine has real, measurable benefits has been key to increasing its role in the system, said John Weeks, editor of the Integrator Blog, an online publication for the alternative medicine community. The Patient-Centered Outcomes Research Institute, created by the health law, is funding studies on alternative medicine treatments to determine their effectiveness.

Weeks said both lawmakers and the general public will soon have access to that research, including the amount of money saved by integrating other forms of medicine into the current health system.

But the challenges of introducing alternative care don’t stop with science.

Because under the health care law each state defines its essential benefits plan — what is covered by insurance — somewhat differently, the language concerning alternative medicine has to be very specific in terms of who gets paid and for what kinds of treatment, said Deborah Senn, the former insurance commissioner in Washington and an advocate for alternative medicine coverage.

She pointed out that California excluded coverage for chiropractic care in its essential benefits plan, requiring patients to pay out of pocket for their treatment. Senn thinks the move was most likely an oversight and an unfavorable one for the profession. Four other states — Colorado, Hawaii, Oregon and Utah — ruled the same way in the past year.

“That’s just an outright violation of the law,” she said, referring to the ACA clause.

Colorado and Oregon are in the process of changing that ruling to allow chiropractic care to be covered, according to researchers at Academic Consortium for Complementary and Alternative Health Care.

Some states, like Washington, are ahead of the rest of the country in embracing alternative practitioners. The Bastyr University system, where Guiltinan works, treats 35,000 patients a year with naturopathic medicine. Sixty percent of the patients billed insurance companies for coverage.

Guiltinan said a change in the system is not only a boon for alternative medicine doctors, but helps families of all income levels access care normally limited to out-of-pocket payment. That’s why some alternative medicine aficianados like Rohit Kumar are hoping the law will increase the ability of his family — and the larger community – to obtain this kind of care.

Kumar, a 26-year-old business owner in Los Angeles, said his parents and brothers have always used herbs and certain foods when they get sick, and regularly see a local naturopath and herbalist. He’s only used antibiotics once, he says, when he caught dengue fever on a trip to India.

While the Kumar family pays for any treatments they need with cash — the only payment both alternative providers accept — they also pay for a high-deductible health plan every month to cover emergencies, like when his brother recently broke his arm falling off a bike.

Paying for a conventional health care plan and maintaining their philosophy of wellness is not cheap.

“We pay a ridiculous amount of money every month,” Kumar said of the high-deductible insurance. “And none of it goes toward any type of medicine we believe in.”

Even so, he said the family will continue to practice a lifestyle that values wellness achieved without a prescription — a philosophy that Guiltinan also adopted in her practice.

As a young medical technician in a San Francisco hospital, she decided that the traditional medical system was geared more toward managing diseases and symptoms rather than prevention. Naturopathic medicine, on the other hand, seemed to fit her idea of how a doctor could address the root cause of illness.

“The body has an innate ability for healing, but we get in its way,” Guiltinan said. “Health is more than the absence of disease.”