*
(V'
Strategies for Improving
Industrial Environmental Compliance
A Draft Report Prepared by
Todd Edwards and Tapio Kuusinen
for Regulatory Innovations Staff
Office of Policy, Planning, and Evaluation
United States Environmental Protection Agency
December 1989
Rev. 3
*
This paper is not an official report of the U. S. Environmental
Protection Agency. Any opinions expressed herein are solely the
views of the authors.
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52
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WASHINGTON, D.C. 20460
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Introduction
Historically at the United States Environmental Protection
Agency (U.S.-EPA), corporate compliance with environmental law
has been conceptualized in terms of economic deterrence. In
adopting the deterrence model of compliance, an assumption is
made that corporations behave as economic 'rational actors'
(Becker, 1968). That is, the decisions which corporations make
regarding environmental laws are calculated so that the most
economically beneficial actions are taken.
Specifically, this means that the corporation multiplies the
probability of being detected out of compliance by the penalty
for being out of compliance and then compares this product to the
cost of compliance. If this "expected value" of the cost of non-
compliance is less than the cost of compliance, it is assumed
that naturally an entity which depends upon economics for
survival will choose to not comply with the environmental law in
question. In accord with the 'rational actor1 assumption, the
purpose of enforcement efforts at EPA has primarily been to
insure that the economic costs associated with noncompliance are
greater than the economic costs of compliance. In this scenario,
enforcement officials act solely as police officers who identify
violations and apply appropriately prohibitive sanctions.
However, a major problem exists in adopting deterrence
theory as a comprehensive model for corporate environmental
behavior. The problem is simply that the 'rational actor'
assumption does not seem very plausible. Corporations are
composed of various individuals, many of which influence
decision-making. In fact, employees, competitors, and broad
societal norms, all exert pressure upon decision-making (The
Skylonda Group, 1985). The result is usually a consensus among
competing views, rather than a precisely calculated solution.
Indeed, it has been estimated that top executives of major
companies spend as much as half their time dealing with external
relations, particularly those with the government (Greanias &
Windsor, 1982). Whether any given decision which is reached is
the most economically beneficial or rational is usually open to
debate.
However, even with this consideration aside and the
'rational actor' assumption taken as valid, there are still
serious problems in adopting the deterrence model (as embodied in
the so-called "command-and-control" strategy) as a sole means of
achieving compliance. This is because that even if corporate
environmental decision-making were conducted so that the most
economically beneficial actions were taken, two of the three
variables to be considered in the deterrence equation are
uncertain. Even though the cost of achieving and remaining in
compliance may be fairly certain (and even this is open to
debate), the risk of detection and the cost associated with
detection are quite uncertain. Because of this uncertainty, it
is very difficult for companies to behave in any consistent and
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predictable manner, even given the assumption of rationality. In
addition, there is considerable variance across corporations
regarding the degree of risk which is tolerated in decision-
making. As a result, the deterrence (command-and-control)
strategy taken alone is necessarily inefficient in promoting
compliance.
At this point one may ask: "If companies cannot be expected
to behave as ' rational actors', then how might they be expected
to act?'1 Kagan and Scholz (1984) have constructed a conceptual
framework of different ways in which corporate behavior is often
perceived. One conception of corporate behavior is that of the
corporation as a political citizen. In this case, the
corporation is viewed in terms of its social context, and rather
than being ruled purely by an economic equation, is also
influenced by ideological beliefs and societal norms. In other
words, decisions are made based upon beliefs of right and wrong
and what their societal and political effects might be; that is,
how they may come to be judged by others. Rather than focusing
on deterrence of undesirable behavior, emphasis on good practice
and reinforcement through peer pressure and recognition would be
the compliance strategy of choice here. Through negotiation and
social networking, corporate and regulatory officials could reach
consensus on environmental management approaches which were
satisfactory to each. Therefore, rather than acting primarily as
police agents, regulators would serve as negotiators and
networkers.
In another model the corporation may be viewed as being
organizationally incompetent: that is, the right hand of the
corporation does not know what the left is doing. In this
scenario, environmental regulations are not adhered to because of
folly, rather than principled disobedience (as a political
citizen) or an economic equation (as an economically rational
actor). Even though top corporation management may wish to
comply with environmental laws, the fragmented, disorganized
nature of the corporation may prevent it. There may be norms of
operation or distinct factions of corporate members within the
organization which prevent compliance. It may also be a
communication problem which works against compliance. In any
case, regulators would serve as consultants, educators and
providers of guidance. To minimize organizational mishaps, a
focus on personal liability for environmental damages — as well
as emphasis on environmental audits which force senior management
to acquire knowledge of potential violations — are especially
important in this scenario. Such roles for regulator and
regulatee would greatly improve the likelihood of compliance by
helping the corporation overcome the organizational problems
which prevent compliance.
Rather than any one of these conceptions being the correct
one, it is more likely that all exist within corporations at
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certain times, and that different corporations embody each to
different extents. Therefore, it is necessary to keep all of
these views in mind when trying -to understand and/or control
corporate behavior. In the words of Kagan and Scholz (1984):
"One implication of the diverse sources of noncompliance is that
indiscriminate reliance on any single theory of noncompliance is
likely to be wrong, and when translated into an enforcement
strategy, it is likely to be counterproductive" (p. 85).
As a result of the.deterrence-based Major Source Enforcement
Effort of 1977-1981, a majority of major pollution sources are
currently in compliance or are following plans to achieve
compliance (Wasserman, 1985). However, this is only the first
stage in an overall effort to promote compliance with
environmental requirements throughout the economy. Besides these
large and easily visible sources, there are many medium to small-
sized companies which because of their great numbers can never
all be monitored. These sources have become especially important
as the need to control toxics has grown (U.S.-EPA, 1984). The
risk for any one of these companies being detected out of
compliance is so extremely low that deterrence is an
exceptionally poor strategy. In keeping with the deterrence
framework, it would not be possible to levy fines large enough to
balance out the low probability of detection. Indeed, many of
these potential violators are not even known by the regulatory
community to exist.
Bringing these sources into compliance is the most difficult
task at hand. Together, they represent a very real and
significant threat to human health and the natural environment.
Since these companies cannot be reached effectively through
command-and-control (deterrence), additional means must be used
to influence them. The strategy described below will not only be
effective in bringing medium to small-sized sources into
compliance, but is also the most effective way of dealing with
larger sources as well.
An Integrated Compliance Strategy
An integrated compliance strategy is one which incorporates
knowledge and principles from various fields (such as economics,
sociology, criminology, psychology, and law) to increase the
extent to which individuals and groups of individuals comply with
environmental laws. It is not bound by any particular viewpoint,
but takes advantage of the strengths of all existing viewpoints.
Wasserman (1985) expressed this sentiment in the following way:
"... the key to a successful and efficient compliance promotion
and enforcement program is matching enforcement approaches to the
full range of motivating factors that may be at work for
individuals and all levels within regulated entities" (p. IV-4).
In adopting an integrated compliance strategy, it becomes
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evident that at least four "micro-strategies" must be taken in
order to promote compliance beyond the current level which has
been achieved: 1.) increase the perceived legitimacy of
environmental laws; 2.) foster mutual respect between regulators
and regulatees; 3.) demonstrate that environmental pollution
prevention is good for business; and 4.) revise deterrence
(command-and-control) strategy as part of an overall compliance
strategy.
1
1. Increasing The Perceived Legitimacy of Environmental Laws
Deterrence (command-and-control) strategy is a necessary
part of any enforcement program. Deterrence measures demonstrate
the resolve of the agency. However, they cannot be the sole
means by which compliance is sought. Just as traffic laws will
only be followed to the extent that they are viewed as
legitimate, so is the same with environmental laws. Although it
is true that motorists will obey all traffic laws in the
presence of a police officer, police officers cannot even come
close to monitoring all motorists. The threat of sanction is
necessary to keep those few individuals in compliance who would
otherwise break the law. However, for the vast majority of
individuals in society, laws are followed because they are seen
as legitimate and necessary. Therefore, one of the goals of
regulatory agencies must be to increase the perceived legitimacy
of environmental laws so that they are followed in "spirit" as
well as by the "letter". As Miller (1985) put it: "Bureaucratic
and rule-minded enforcement can lead to a minimalist attitude on
the part of both law enforcement officials and regulatees,
leaving them unresponsive to more serious, but not technically
illegal situations" (p. 24). A survey of 100 top corporate
officers of major corporations demonstrated the need to increase
the perceived legitimacy of environmental laws (Glauthier & Fox,
1983). It was found here that the issue about which more
executives were 'very concerned1 was the reasonableness or
scientific basis of regulations.
Justifying environmental laws was often quite difficult in
the past due to the abstract nature of the consequences which the
laws were intended to avoid. However, today these abstract
consequences have become very concrete. As consensus has grown
in the scientific community regarding the reality of global
warming and its potentially grave consequences, as holes in the
Earth's ozone layer have become more severe, and as land and
water have become contaminated, it has become increasingly
apparent that human activity is having serious negative effects
upon the global environment. Whereas in the not so distant past
concern for the environment was viewed by most people to be a
luxury, today it is considered by many to be necessary for long-
term, sustainable economic development.
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Despite widely-increasing consensus for increased investment
in environmental protection, individual decisions and trade-offs
will continue to be controversial. The rationality of the
decision-making process and the degree and quality of
participation and involvement by concerned interest groups in
that process will effect the degree to which they challenge such
decisions. Increased use of regulatory negotiation and
alternative dispute resolution processes will help in this
regard. More broadly, efforts eliminate current inconsistencies
and to minimize future arbitrary or conflicting requirements will
increase industry's willingness to "buy into11 environmental
programs as a whole.
2. Fostering Mutual Respect Between Regulator and Recrulatee
A more constructive relationship between regulator and
regulatee must be developed as the norm for interaction,
reserving confrontational tactics for serious non-compliance
issues. An essential element in doing this are enforcement
approaches similar to Scholz's (1984) "Tit-for-Tat" framework.
In using Tit-for-Tat, good environmental behavior by companies
would be rewarded with cooperative enforcement and bad
environmental behavior would be sanctioned with antagonistic
enforcement. Cooperative enforcement is characterized by a
relatively low level of regulatory scrutiny and greater
regulatory discretion and use of negotiation. In other words,
companies with good environmental records and even companies
which have shown evidence of "good faith" efforts to comply,
would be given regulator trust and respect. Accordingly, even
where violations are detected, regulator trustworthiness and
reasonableness would be demonstrated by a full consideration of
the purpose of the law in relation to the violation as well as
any extenuating circumstances (impediments) which may have made
compliance exceptionally difficult. Environmental laws would be
enforced in "spirit" rather than just by the "letter". Hall
(1988) noted one of the Agency's current efforts to achieve this
level of enforcement:
In 1986, the Environmental Protection Agency issued a policy
statement on the issue of environmental auditing. In this
policy it was implied but not specifically stated that the
Agency would provide a more reasonable enforcement attitude
toward industrial operations which had installed a vigorous
system of environmental auditing. Although this in no way
condones or encourages the breaking of any laws or
regulations, the policy is merely establishing an attitude
of cooperation rather than one of police activity, (p. l)
EPA's Uniform Civil Penalty Policy also leans in this direction
in that it allows the regulator discretion in deciding what level
of sanction to impose. Factors such as economic benefit derived
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from noncompliance and degree of past cooperation are considered
when penalty amounts are assessed. By showing the regulatee that
cooperation is sincerely desired and that the regulator is
reasonable, trust between regulator and regulatee can begin to be
developed. In the case of bad environmental behavior, companies
would receive harsh sanctioning and greater regulatory scrutiny.
However, in order to begin the development of regulator/regulatee
cooperation and trust, "good faith" efforts to comply on the part
of even previously recalcitrant firms must be rewarded so that
further efforts at achieving compliance are encouraged.
otherwise, firms which have been labeled as "bad actors" have
little incentive to come into compliance.
In order to further develop cooperation and trust between
regulator and regulatee, it would be helpful to as much as
possible make the criteria of violation "few, clear, and simple"
(Environmental Law Institute, 1989). If this were the case,
little dispute would occur over whether a violation had occurred
or not. If violations were blatantly obvious, regulatees would
have no basis for feeling "cheated" by regulatory agencies.
Therefore such clear cut criteria would help to preserve the
perception of regulator legitimacy. In addition to this, such
criteria would give regulators the "clout" necessary to negotiate
from a position of strength (such as with regard to probation—
see Stone, 1977). In an EPA report entitled "Study Of Literature
Concerning The Roles Of Penalties In Regulatory Enforcement"
(1985), the usefulness of regulatory negotiation was discussed.
It was stated thus:
The use of rehabilitative measures in enforcement opens up
many new possibilities for agencies to promote compliance.
However, it must be noted that such enforcement actions must
be highly individualized and tailored to the individual
violator, and as such, they could be resource intensive.
In addition, these tailored sanction actions may go against
the idea of 'fair and equitable treatment of the regulated
community'. (p. 17)
With regard to the former criticism, although such an approach
may be resource intensive, the gains to be realized in compliance
as a result of increased cooperation and trust far outweigh such
expenditures. In addition, as will be discussed shortly, the
confrontational relationship which currently exists between
regulator and regulatee is also very resource intensive in
addition to being mutually detrimental. With regard to the
latter criticism, although any time that discretion exists, the
possibility of injustice and corruption also exists, the current
approach of penalizing violators without much regard for specific
circumstances is also unjust. To be sure, stringent control and
documentation of negotiation will be necessary, but this will be
to the benefit of both regulator and regulatee. Such control
will both protect regulators from forces which promote favoritism
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8
r
laws must be shifted off of the regulator and on to the
regulatee. Indeed, in EPA's "Strategy Framework For Compliance
Programs" (1984) it is stated that voluntary compliance is
essential to enforcement (p. 11). In order to achieve this, the
justification for compliance must become the aversion of negative
environmental consequences rather than the aversion of regulatory
sanctions. This justification would be created if companies
were convinced that negative environmental impacts are bad for
business. This would eliminate the current passive environmental
stance of large sources as well as the diffusion of
responsibility which characterizes medium and small sources.
This approach is currently being looked at within EPA through the
use of demonstration projects in which it will be attempted to
show that environmental pollution preventions can be economically
efficient as well as protective of the environment.
One key to this approach is to integrate environmental
management directly into core business operations. Another key
is in a comprehensive definition of operational efficiency. Such
a definition incorporates costs of noncompliance which are
usually not considered but nevertheless are significant
components of operational efficiency. Actually, the economic
gains to be realized from environmental management are short-run
as well as long-run in nature (Wasserman, 1985; ICF, 1989). Some
short-run gains are reduced insurance premiums and reduced raw
material costs; potential long-run gains are avoidance of future
liability and the fostering of a positive public image. The
costs usually associated with noncompliance are thought to stem
from enforcement actions themselves. However/ as any convicted
drunken driver knows, the fine is just a small proportion of the
costs to be paid: increased insurance rates and social stigma
exact very real costs as well. Through such an expanded
definition of operational efficiency, it may be possible to show
a direct positive relationship between environmental management
measures and economic efficiency. If this is accomplished,
companies will pursue environmental management as a core business
interest. Indeed, books and articles have already begun to be
written on the economic virtues of pollution prevention (Campbell
& Glenn, 1982; Huisingh, Martin, Hilger, & Seldman, 1985; Plaut,
1984; ICF, 1989). At this point, however, this proposition is
too novel for many companies to take. This is why it is
important that EPA take the lead in developing projects which
would demonstrate the economic advantages of effective
environmental management.
As a related matter, consider what Stone (1975) reported
regarding price-fixing conspiracies in the electrical equipment
industry. He found that a sentiment existed among employees
that price-fixing had been an invention of the sales force in
order to avoid having to work harder for sales. He also found
that design engineers resented the fact that the products which
they took pride in designing were not given a fair shake on the
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9
free market. An outside advisory panel which was set up to
investigate price-fixing aimed to demonstrate "that competition,
properly pursued, can produce far more consistent profits than
... conspiracy" (p. 12). In-house programs, management courses,
workshops, and conferences were all established to advocate the
positive approach of competitive initiative. As Stone reported:
[The presentation] was not that the company had to 'submit1
to a stronger, outside force—that is, the government.
Rather, the price-fixing was depicted as itself a foreign
element, inimical to the more fundamental corporate ideal of
increasing one's share of the market through better
salesmanship, superior design, and the like—the norm of
competition, (p. 12)
Once it is demonstrated that good environmental management is
also good business management, regulation will cease to be
viewed as a "foreign element". Rather, environmental
irresponsibility and degradation will become as price-fixing,
"inimical to the more fundamental corporate ideal of
competition".
Chances are that if a company has a poor environmental
record, its operation is not running very efficiently in the
first place. Just as a car which is not tuned well will emit
more pollutants and burn more fuel per mile than a well tuned
one, corporations which are the heaviest polluters are not making
the best use of their raw materials. In addition, a company with,
effective process controls normally will increase the productive
throughput of its operating equipment .relative to competitors.
Such costs of "environmental inefficiency" must be figured into
the final efficiency equation. Apparently intangible costs such
as adverse publicity must also be quantified and considered.
Although a company may incur initial costs when converting to
more environmentally efficient practices, such costs should be
recovered over a relatively short course of time. An analogy is
that although one may purchase an older car at a lower price than
a newer one would cost, over time the higher fuel efficiency of
the newer car will make it the better buy.
A potential problem with these economic gains is that they
may not be fully realized within the 18-24 month average tenure
of company vice-presidents. Since these executives depend upon
short-term gains in order to demonstrate their proficiency and
thus move into better positions, measures may not be taken which
will not show very immediate results. Because of this, it is
crucial to get top decisionmakers (i.e., CEOs) on board early so
that they will become committed to environmental management and
ensure program survival to a point where environmental and
economic benefits can be realized.
As it stands now, most companies which are adopting
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10
environmental management practices are doing so in order to avoid
penalization by regulatory agencies. Companies are hiring
environmental consultants to help them meet regulatory
requirements. In turn, these consultants are providing
technology which is quite safe, and also quite old, in order to
eliminate any chance of their clients (companies) being out of
compliance if they are inspected. Such measures are designed for
the sole purpose of achieving compliance and in many cases may
not be contributing to operating efficiency.
When corporations have become .convinced that environmental
pollution prevention is "good business", pollution prevention
will^-become adopted as standard operating procedure and will
cease "to be held as suspect. Commitment to environmental
management programs will become commonplace in the business
community. Through this process, more than just compliance rates
will be altered. The 'culture1 of corporations and entire
industries will be changed. As it is realized (through market
trends and social networks) that environmental management
practices can actually increase operating efficiency, and as more
companies adopt such practices, environmental management will
become necessary in order to compete in the marketplace. Rather
than being forced to comply with environmental laws,
environmental stewardship will have become a part of corporate
missions. This is the ultimate goal of all regulatory efforts.
Changing the culture of large industries will also bring much
social pressure to bear upon smaller ones. This is especially
( important at that level because the economic incentive of
' environmental management may not be quite as great for smaller
^ operations. Through trade associations, regulatory networks, and
general societal expectations, these smaller sources will be
encouraged to achieve and remain in compliance. Also, as
mentioned .above, increased compliance support and cooperation
from regulatory agencies will make it easier and more
advantageous for these sources to observe environmental
regulations.
The aforementioned cultural transformation will first occur
within select "forward-looking" corporations, and then eventually
in other less progressive firms. Indeed, today certain companies
are becoming aggressively involved in environmental management in
order to get in early on an idea whose time they see has come.
To these corporations, such involvement is considered a good
business investment. With increasing environmental problems and
resulting governmental regulation down the road, corporations
which are attempting to become "environmentally efficient11 now
are avoiding larger costs later when fewer choices for achieving
compliance are available. These corporations will also be one
step ahead of their competitors in gaining the benefits of more
efficient operations.
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11
*• Revising Deterrence
Overall Compliance Strategy
As discussed at the beginning of this paper, although
deterrence-based strategies should not form the sole basis of
enforcement, they are an essential part of an overall compliance
strategy. Deterrence measures demonstrate the will of regulatory
agencies. To the extent that such approaches are employed, there
are ways to insure that they are used as effectively as possible.
A recent report prepared for EPA by the Environmental Law
Institute (ELI, 1989) entitled: "Cost-Effective Enforcement: A
Framework For The Evaluation Of The Enforcement Authorities Of
The EPA" addresses this very issue. The authors of this report
concluded that for the programs which they examined (Water and
Hazardous Waste), "...the Congress generally has provided EPA
with less than ideal enforcement powers... Moreover, EPA has
often adopted regulations that appear to diminish the deterrent
power of tools and that make tools harder to implement" (p. 141).
The authors of the ELI report outlined nine measures which they
believed would make the enforcement authorities (permits, civil
penalties, contractor listing, etc.) at EPA more cost-
effective. Most notably, in cases of dispute it was recommended
that EPA pursue an enforcement strategy which places the 'burden-
-of-proof upon the alleged violator (IRS-style). As it stands
now, when a firm is cited for a violation it may pursue endless
civil litigation which greatly delays the length of time until
the environmental harm is stopped and often tends to weaken the
blow of the ultimate penalty. If the burden-of-proof were
placed upon the violator, it would be necessary for the company
to circumscribe suspect operations until the matter was cleared
up. This would serve the dual purpose of immediately stopping
the environmental harm as well as providing a great disincentive
to litigation. If a company must cease operation during the
litigation process, it will assume a great economic burden each
day that litigation drags on. Although shifting the burden-of-
proof upon alleged violators may be overly heavy-handed with
first or second-time violations, it may be a measure to consider
for dealing with repeated violators.
Conclusion
Because of its severely limited view of corporate behavior,
EPA's command-and-control (deterrence) strategy for compliance is
similarly limited in effect. Command-and-control fails to take
into account all of the factors which influence corporate
environmental behavior. An integrated compliance strategy has
been described here which would take all motivating forces into
account. This strategy would complement, rather than displace
the current strategy. An integrated compliance strategy would be
especially beneficial in dealing with medium to small sources of
pollution, which cannot be reached directly through command-and-
control .
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12
APPENDIX 1
Tools for Improving Industrial Environmental Compliance
1. alternative dispute resolution and other negotiation
techniques
2. good management practices and pollution prevention
3. self-auditing
4. performance-based incentives (let the market work out the
means}
5. education/training/skill development
6. technology transfer
7. violator 'burden-of-proof
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and corruption as well as protect regulatees from being double-
crossed in agreements.
Negotiation techniques and other alternatives to civil
litigation are central to Tit-for-Tat and other such enforcement
frameworks. Litigation is very resource-intensive and usually
not cost-effective for either side of a dispute (Gray, 1985).
Gray cited the National Coal Policy Project (NCPP) as an example
of a non-adversarial solution to a very difficult problem. After
realizing that they were both losing in the courts,
industrialists and environmentalists developed the NCPP as a
year-long forum in which a consensus was reached on coal policy
for the United States. Examples of other non-adversarial
alternatives to civil litigation can be found in Blundell (1982),
Peterson (1983), and Quadrangle Notes (1982). Langbein and
Kerwin (1982) have characterized negotiation as "... the
centerpiece of implementation, for it provides the vehicle by
which the [regulatory] agency can simultaneously satisfy the
preferences of relevant Congressional subcommittees, clientele
groups, and regulated firms" (p. 30).
Besides a Tit-for-Tat style enforcement framework, a second
essential element necessary to promote regulator/regulatee
cooperation is ample compliance support from regulatory agencies.
Regulators must be willing to provide companies with information,
training, and education which will enable them to come into
compliance. This includes providing technical information
("technology transfer") as well as justification of laws so that ;
regulatory reasonableness is demonstrated. Agencies must also v
provide companies with options for achieving compliance so that
the most economically efficient means may be chosen (this is
discussed more fully below). Besides allowing for economic
efficiency, providing such options will foster commitment to and
"ownership" of environmental management. In short, environmental
regulatory agencies must become more service-oriented and less
authoritarian. Both the U.S. Internal Revenue Service and the
U.S. Postal Service have made this realization with increased
efficiency and effectiveness as the result. This is especially
important for smaller companies which lack in-house environmental
management skills and are generally not very proficient with
environmental regulations. With such support provided, the
regulates can have no legitimate excuse for not at least making a
reasonable attempt at achieving compliance. Underlying this
compliance support must be well-established communication
networks through which regulator and regulatee can establish and
maintain mutually supportive relationships.
3. Demonstrating That Environmental Pollution Prevention Is
Good For Business
Ultimately, responsibility for compliance with environmental
*
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13
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