Beyond Compliance: A Call for EPA Recognition of Voluntary Efforts to Reduce Pollution

John A. Pendergrass and John A. Pendergrass III

John A. Pendergrass is President and Chief Executive Officer of NuCor Health, Inc., and Pendergrass Associates, both occupational health, safety, and environmental control services companies. He served as Assistant Secretary of Labor for the Occupational Safety and Health Administration after practicing industrial hygiene, toxicology, health physics and safety in industry for 35 years. He is a certified industrial hygienist (CIH), certified safety professional (CSP), and registered professional engineer (PE).

John A. Pendergrass III is a Senior Attorney at the Environmental Law Institute in Washington, D.C. Prior to joining ELI he was a Visiting Assistant Professor of Law at Illinois Institute of Technology Chicago-Kent College of Law. He was also in private practice with DeWitt, Sundby, Huggett, Schumacher, & Morgan in Madison, Wisconsin, and was an Attorney Advisor in the Solicitor's Office of the Department of the Interior.

[21 ELR 10305]

There are an estimated six million work places¹ and hundreds of thousands, if not millions, of pollution sources in the United States. It is impossible for the Environmental Protection Agency (EPA or the Agency) or the Occupational Safety and Health Administration (OSHA) to inspect every pollution source or workplace.

Voluntary compliance is the bedrock of regulatory laws in the United States, from traffic laws to tax collection to health, safety, and environmental regulations. Enforcement by citation is a deterrent to noncompliance. The general deterrent effect enforcement has on others in the regulated community is more valuable than punishing the individual violator.

Although it is vital, enforcement generates only disincentives to violating the law, creating a negative influence on behavior. Enforcement is designed to achieve minimal standards, not to encourage exceeding these standards.

In addition to deterring violations, agencies would be wise to create incentives to exceed the bare minimum required by the law. This Dialogue suggests ways to promote efforts to reduce pollution below regulatory standards.

EPA recently declared that it will encourage efforts to reduce pollution.² The creation of the Office of Pollution Prevention institutionalizes that effort to some extent. In appropriate cases, the Agency also intends to condition settlements with violators on pollution prevention measures that exceed minimum requirements.³

This Dialogue recommends that EPA adopt a formal program to recognize and encourage those who exceed minimum standards, suggests that OSHA has established a model for such a program, and articulates some general principles that should guide such a program.

OSHA's Voluntary Protection Program — A Model for EPA

The Occupational Safety and Health Act (OSH Act) creates OSHA and charges it with a traditional enforcement mission within its regulatory program. The OSH Act states that it is the employer's responsibility to provide a safe and healthy workplace.⁴ Employers are required to do more than merely comply with specific regulations promulgated by OSHA; they have an affirmative duty to eliminate recognized hazards.

After 10 years of experimenting with various enforcement strategies, OSHA realized that safety in the workplace depends on the voluntary efforts of employers and employees. The Voluntary Protection Program (VPP), a plan to recognize exemplary results in health and safety in a work site, was announced by OSHA on July 2, 1982. The purpose of the VPP is to emphasize, encourage, and reward excellence in occupational safety and health programs provided by employers.⁵ Employer participation in the VPP is voluntary, whereas compliance with OSHA statutes and standards remains mandatory.

The Criteria for Recognition by the VPP

In order to be awarded the "Star," the VPP's top honor, a work site must satisfy six specific written criteria.⁶ The VPP does not certify all who apply and does not recertify [21 ELR 10306] all who are certified. Those who achieve Star status wanted the requirements to remain strict so that being a Star is an honor for achievement.

The criteria to be a Star are: management commitment and planning, hazard assessment, hazard correction and control, safety and health training, employee participation, and safety and health program evaluation. Each of these criteria have specific requirements. For example, Stars are required to retain a written safety and health program and to maintain management systems that will assure that potentially hazardous conditions will be recognized and corrected. The VPP also emphasizes employee participation because it is considered essential to the success of any occupational health and safety program. VPP Star sites also must agree to work with their designated OSHA representatives to resolve safety and health problems and to promote effective programs.⁷

The Rewards of Participation in the VPP

OSHA recognizes qualifying work sites with a certificate and the right to fly a special flag. The recipient usually arranges a presentation ceremony attended by its top executives, the Assistant Secretary of Labor for OSHA, other government officials, and its employees and families.

When an applicant work site is awarded the Star, it is no longer subject to routine inspection. Removing a plant from routine inspection creates some risk for OSHA. The purpose of removing Star sites from the routine inspection lists is to free "OSHA's inspection resources for visits to establishments that are less likely to meet the requirements of the OSHA standards."⁸ In order to prevent using the Star program as a shield, OSHA specifically reserves the right to refer a Star site for enforcement action if workers could be seriously endangered and management refuses to make changes necessary to protect them.⁹ OSHA has not yet taken such action. The VPP also includes specific authority for OSHA to withdraw VPP certification "when a significant failure to maintain the safety and health program in accordance with the program requirements" occurs.¹⁰ In addition, Star work sites are formally reevaluated every three years to determine if they continue to meet the program criteria.

The Process of Awarding VPP Recognition

OSHA prepares and keeps current application guidelines that explain the type of information that is required to participate in the VPP. The OSHA Regional Offices maintain material that can help a manager decide if a plant site should apply for VPP recognition. When the required information and documents are compiled, the application is sent to the Regional Office for an initial review. The reviewing officer works with the applicant to suggest improvements to the application.

When the initial review is complete, a pre-approval onsite review is scheduled. The onsite review is conducted by experienced non-enforcement OSHA staff. OSHA uses non-enforcement staff to conduct the onsite review because applicants for Star status have voluntarily requested that OSHA review their health and safety program and have submitted information not required by law. However, OSHA reserves the right to use its enforcement authority when necessary. The review is conducted to verify the information on the application, to identify the strengths and weaknesses of the program, to determine the adequacy of the program to address the potential safety and health problems that may occur at the site, and to obtain information that will help the Assistant Secretary make an approval decision.

The on-site review typically lasts one to one and a half days, depending on the size of the plant. OSHA has identified over one dozen elements of a proper health and safety program. The reviewers evaluate the site for these elements, which include: compliance with OSHA regulations, health and safety manuals, records of injuries and illnesses, self-inspection procedures, accident investigations, employee training, employee participation, industrial hygiene records, and management commitment. When the review team determines that the applicant has met the requirements for the VPP, a recommendation for approval is made to the Assistant Secretary through the Regional Administrator and the Director of Federal and State Operations. The Assistant Secretary makes a final review of the application and decides if the application is approved.

Is the VPP Worth the Investment?

One company saved 48 percent on worker compensation costs and reduced injuries 11 percent after joining the VPP. A construction company saved $ 1,555,000 on one project. Managers contend that workers who are motivated to work safely will be more productive and more aware of quality, thereby reducing costs. The VPP demonstrates that safety and health programs are good business. Workers do not get hurt, they do not lose wages from lost work time, and they communicate with management about safety and health.

One of OSHA's responsibilities is to promote health and safety in the work place. The VPP plants are OSHA's best promotions for health and safety. OSHA points to the VPP when questions of the effectiveness of safety and health programs arise.

Critics of the VPP contend that resources allocated to the program should be spent on enforcement. They contend that VPP staff should be enforcement personnel and conduct compliance inspections. However, time spent with a plant to achieve excellence in health and safety may outweigh an equal amount of time spent calling attention to a violation of a standard. VPP time provides greater lay-term benefits to workers than does the usual OSHA inspection.

General Principles for an EPA Program

OSHA's VPP illustrates several important principles that should guide regulatory agencies desiring to recognize and encourage voluntary actions that go beyond compliance.

The program should have formal, established, and publicized criteria for determining which voluntary efforts to recognize. As a corollary, the program must publicly recognize all who meet the criteria. This will give the program [21 ELR 10307] credibility and avoid charges that the Agency is unfairly or arbitrarily choosing those that it recognizes as exemplary.

The bedrock criterion for recognition should be compliance with all regulations. This emphasizes that the program recognizes efforts and improvements that go beyond compliance to make further gains in environmental performance. This also will assure that the Agency does not embarrass itself by praising an entity for its voluntary actions when it is violating the Agency's own regulations.

The program should focus on an entire management unit, such as a plant or facility, rather than a single process or product line. This helps to assure real environmental improvement and permanent institutional changes. It emphasizes that facility-wide voluntary actions are most worthy of recognition.

A related principle is that the program should emphasize management control and planning systems that make improved environmental performance an integral part of the participant's institutional goals. This helps to assure that the Agency recognizes efforts that will have lasting effects, and that the efforts to improve will continue.

Emphasizing employee training will assure that the benefits of voluntary action are lasting. It will send the message that environmental protection is everyone's responsibility. Finally, it will provide employees with the information and skills necessary for them to make environmental improvement a part of their job performance.

The primary purpose of the voluntary program should be to achieve actual improvements in our environment. Therefore the program should emphasize improved and demonstrable results. One of the major goals of a voluntary pollution prevention recognition program should be to encourage other companies to take similar actions by publicizing the benefits, public and private, of improved environmental performance. Managers of other companies are more likely to be convinced that such voluntary actions are worth undertaking if they see that the pioneers achieved real, on-the-ground improvements. Actual improved environmental results are also more newsworthy, making it more likely that the agency's message will be heard by a wider audience.

A program to recognize voluntary efforts should be holistic, rather than media specific. A voluntary pollution prevention program is precisely the place for the Agency to encourage broad visions of improved environmental performance. It should encourage people to look for systemic solutions to environmental problems rather than methods for reducing wastewater discharges, generation of solid wastes, or air emissions. Successes in the voluntary arena might even suggest ways to better integrate the media-specific regulatory programs.

Finally, the recognition program should emphasize regular self-evaluation by participants, and provide for periodic reevaluation by the agency. Self-evaluation allows participants to account for their past results and encourages them to continue to improve. Periodic reevaluation by the Agency is another essential mechanism for ensuring the Agency's credibility and for maintaining the integrity of the program.

One of the advantages of a voluntary pollution prevention recognition program based on these principles is that they help ensure that the facility is worthy of praise for its environmental performance. Another is that such a program could raise the standards by which facilities and the public judge environmental performance.

These principles ensure that a regulatory agency rewards only firms that have effective institutional programs and controls designed to achieve the goals of the agency's mandate. These principles minimize the possibility that EPA would praise firms that merely shift media rather than reduce pollution. For example, these principles would help EPA to avoid praising a firm that reduced its water emissions by air stripping and releasing volatile organic compounds into the air.

A program that encourages regulated entities to prevent pollution by publicly recognizing those that are successful can have a wider impact than the improvements at specific sites. EPA can point to recognized sites as models of how facilities should be operated to avoid environmental degradation. When the facilities publicize their recognition, other facilities will be stimulated to compete with the Star facilities for the attendant positive publicity. This is likely to be particularly effective in an era when consumers are actively attempting to make environmentally sound choices in the market.

EPA has begun to emphasize pollution prevention as the way to move environmental protection beyond the financial and technological limits of end-of-pipe and stack controls. Public recognition by EPA of entities that voluntarily achieve significant environmental results can stimulate similar efforts by others. When a regulatory agency steps out of its traditional roles of setting and enforcing minimum standards of conduct to praise specific entities for exemplary performance it takes risks. The principles described here, and demonstrated in OSHA's VPP, should enable EPA to recognize and encourage voluntary actions that reduce pollution below the standards required by law while maintaining the Agency's credibility and institutional integrity.

1. Janet L. Norwood, Commissioner Bureau of Labor Statistics, Department of Labor, to author on March 11, 1991.

2. "Pollution Prevention Strategy," January 1991, superseding Environmental Protection Agency, Pollution Prevention Policy Statement, 56 Fed. Reg. 7849 (February 26, 1991).

3. Strock, EPA's Environmental Enforcement in the 1990s, 20 ELR 10327, 10330 (1990).

4. 29 U.S.C. § 654(a)(1). The section states that employers have a general duty to provide "employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm…."

5. 53 Fed. Reg. 26339, 26341 (July 12, 1988).

6. Id. The VPP has two other levels of recognition. The Merit Program is for sites that do not yet meet the qualifications for the Star Program but are working toward that goal. The Voluntary Protection Demonstration Program is for companies that wish to demonstrate the effectiveness of alternative methods that might then become qualifications for the Star Program. Id. at 26345.

7. See 53 Fed. Reg. 26339-26348 (July 12, 1988).

8. Id. at 26341.

9. Id.

10. 53 Fed. Reg. at 26348.