How far can environmental regulators rely on environmental management systems (EMS) as a means of assessing compliance? Rick Gould considers this and other related questions.

Recently, the Institute of Environmental Management and Assessment (IEMA) hosted a webinar on the role that environmental management systems (EMS) could play in regulation. Could regulators reduce their levels of inspections and audits based on the quality of an operator’s EMS implementation? The subject was investigated in a study commissioned by environmental regulators and carried out by SNIFFER, an environmental charity based in Edinburgh. The study was founded on the premise that EMS aim to enable organisations to identify and then accordingly manage their environmental risks, leading to improvements in legal compliance and environmental performance. Furthermore, third-party certification of EMS can provide extra assurance that the organisation has an effective system that achieves these aims. This article describes the premise behind EMS as a means of demonstrating compliance, what the SNIFFER study examined, what the investigation revealed, and finally what the authors of the final report recommended.

EMS, environmental performance and compliance

An EMS is a management tool designed to assess environmental risks and then manage them, in a systematic and proactive way. There are several specifications for EMS, the most widely applied of which is specified within the international standard ISO 14001. The European Commission’s Eco-Management and Audit Scheme (EMAS) goes further than ISO 14001, but still specifies this standard within it. However, while any organisation could design and apply a system based on ISO 14001, this is no guarantee that the organisation will have applied it effectively. More importantly, although ISO 14001 requires a commitment from organisations to comply with environmental legislation, an ineffective system might not result in compliance.

On the other hand, third-party certification through assessments by accredited certification bodies (CBs) can provide such assurance. In the UK, accredited CBs are assessed and regulated by the United Kingdom Accreditation Service (UKAS). In order to be accredited, a certification body has to meet the requirements of the international standard ISO/IEC 17021 and specific requirements for EMS assessment and certification.

Meanwhile, organisations subject to laws such as the Environmental Permitting (England and Wales) Regulations 2010 (EPR), and the equivalent regulations in Scotland and Northern Ireland, require permits issued by environmental regulators. Such permits now typically require operators to have an EMS that applies the requirements of the permit. Logically, if an accredited CB audits the EMS, and the EMS in turn applies the legally binding requirements of a permit, then this implies that the CB auditors are implicitly assessing compliance with the permit. That being the case, this in turn implies that CBs and regulators could be performing the same task or duplicating each other’s efforts. So if a regulated organisation has a certified EMS, to what extent can a regulator take a hands-off approach and use certified EMS as a surrogate for direct regulation and site inspections?

To some extent, national regulators have already been doing this through schemes such as the Environmental Agency Pig and Poultry Assurance Scheme. The Environment Agency has worked with the National Farmers’ Union to develop and apply a specification for environmental management at pig and poultry farms, and any farms certified through the scheme receive less direct regulation. This is founded on the premise that farms within the scheme will perform better and all parties will benefit from it. For example, the Environment Agency knows that assured farms pose lower environmental risks, while the regulator estimates that the scheme saves each assured farm an average of £880 per year, through reduced rates of inspection.

All the national environmental regulators in the UK have been exploring whether this approach can be applied much more widely, albeit to different degrees and states of progress. In addition to the Pig and Poultry Assurance Scheme, the Environment Agency has been trialling its EMS+ programme within selected industrial sectors, working with a number of CBs and UKAS to determine the degree to which an enhanced level of auditing by CBs can assess compliance with a permit’s requirements.

Additionally, as part of the programme to assess the value of EMS as a means of compliance assessment, the Environment Agency, Scottish Environmental Protection Agency (SEPA) and the Northern Ireland Environment Agency commissioned SNIFFER to explore the premise behind EMS as a tool for legal compliance.

The SNIFFER investigation

In the investigation, five questions were asked.

  1. Could environmental regulators rely on certified EMS to reduce the number of inspections? In other words, does a certified system equate to a better environmental performance?

  2. Would accredited CBs provide assurance of an organisation’s compliance with environmental regulations?

  3. Are CBs comparable and consistent when they evaluate an EMS?

  4. Are audits by CBs comparable to inspections by regulators, and consistent with them?

  5. Are environmental regulators consistent in their approach?

SNIFFER published the answers to these questions in a report called New Opportunities to Improve Environmental Compliance Outcomes Using Certified EMSs, which was produced in turn by Planet and Prosperity Ltd. If the above inquiries could be condensed into one question, asking whether EMS can serve as a proxy for direct regulation, then the report would answer “Not yet”. That said, the report stated that strong and effective EMS, coupled with consistent auditing by highly competent auditors, do have a strong potential to support regulation by demonstrating compliance. To that end, its authors had several recommendations.

Main findings and suggestions

In simple terms, the investigation found that certified EMS are much more likely to provide a demonstration of compliance than the uncertified counterparts. At the same time, there was a wide spectrum of environmental performance at organisations even with certified EMS. The researchers on the SNIFFER project account for this by explaining that ISO 14001 is a minimum specification for an EMS, and that CB auditors assess an organisation’s conformance to this specification. So two comparable organisations could have widely differing degrees of environmental performance, despite both meeting the requirements of ISO 14001.

In terms of confidence in EMS, the researchers found that the vast majority of inspectors working for the national regulators had little confidence in EMS as a means of demonstrating compliance with a permit’s requirements. This in turn implies that ISO 14001 is not nearly strong enough to act as a proxy for direct regulation; or worse still, that the inspectors do not yet have sufficient confidence in the auditing of EMS. For example, the report states that many inspectors were not confident that all CB auditors had the required competencies to assess a regulated organisation to the level that the national regulators would want.

The SNIFFER research reported that this lack of trust and confidence was reciprocated in the way that the CB auditors regarded regulatory inspectors. One strong theme amongst CB auditors was that “auditors audit, and inspectors inspect”. If an inspection is defined as an assessment of compliance rather than an in-depth audit of a system, then this is true to a degree. However, it also shows a lack of understanding between the CB auditors and regulatory inspectors; for example, the Environment Agency ensures that all its site inspectors are trained in auditing, with several reaching the high standards for IEMA’s Principle Environmental Auditor qualification. The Agency’s inspectors all perform detailed audits as well as inspections.

Another common theme was an alleged lack of consistency amongst all parties. CB auditors thought that inspectors were not consistent, inspectors echoed the same view about auditors, while the report implied that UKAS was not always consistent with CBs. Not surprisingly, all parties reacted against these criticisms.

Recommendations

In conclusion, the report made over 30 recommendations, and a common theme among these was that CBs, UKAS and the national environmental regulators could communicate better to identify their common aims and reach a much better understanding of each other’s roles. All parties agreed with this.

The report also recommended that regulators and UKAS could review the requirements and guidance for CBs, to determine how these could be adapted to meet the needs of environmental regulators. At the same time, the authors of the report recommended that the regulators should review their permit templates and guidance for auditable criteria, and amend these if required. In other words, adapt permits and requirements to assure that CB auditors assess compliance in exactly the way that regulators require.

As inspectors had questioned whether CB auditors have an appropriate set of skills to assess compliance in the way that inspectors would do so themselves, the report recommended an independent, professional demonstration of compliance for environmental competence. However, the frameworks and means for such professional qualifications could already exist through organisations such as IEMA and other related professional bodies.

Finally, the report strongly recommended that the current revision of ISO 14001 is an opportunity to increase the strength of this standard for assuring compliance; indeed, this subject is being addressed within the ISO working group that is revising ISO 14001. However, at this point, it is worth comparing ISO 14001 with ISO 9001 for quality management systems. Like ISO 14001, this is a generic standard, and even a basic framework for quality management systems. Many sectors of industry, commerce and public service have recognised that ISO 9001 is a starting point and does not go far enough for many sectors. So over the past decade, various specialised working groups have developed many enhanced versions of ISO 9001 tailored for specific sectors; these include the AS 9100 series for the aerospace sector, ISO/TS 16949 for the automotive sector, ISO 13485 for the manufacturing of medical devices, EN 15267-2 for the design and production of systems for measuring air pollution, and ISO 22000 for food-safety systems.

There are many more such standards, and all are based on ISO 9001, together with supplementary requirements. All these extra requirements are demanding, very prescriptive and most importantly, readily audited. These standards typically raise the levels of quality management far above those required by ISO 9001 alone, in addition to adapting ISO 9001 for specific sectors and processes. So perhaps one way of improving EMS for assuring compliance with regulatory requirements, and improving environmental performance, would be to view ISO 14001 as a starting point, and then develop sector-specific enhancements of the standard.

Last reviewed 2 July 2013