Environmental Justice, Climate Change, New Tools
Companies will want to take note of several recent announcements by the U.S. Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“EPA” or “OECA”) and the Department of Justice’s Environment and Natural Resources Division (“DOJ” or “ENRD”), as described in detail below. These announcements offer insights on the future direction of federal environmental enforcement activities. Key takeaways include:
- Return of unannounced, in-person inspections;
- Use of social media, community outreach, and data mining to identify targets for civil and criminal investigations;
- Use of emergency orders to halt operations at facilities deemed to present immediate health risks;
- Increased enforcement of environmental and civil rights laws in communities overburdened by pollution;
- Focus faster relief to communities affected by environmental violations; and
- Return to the use of Supplemental Environmental Projects (“SEPs”) in civil and criminal enforcement cases.
Regulated businesses should familiarize themselves with these emerging policies and promised actions by the government, as well as others detailed below.
In-Person Inspections Remain “Gold Standard”
OECA has resumed a regular pace of in-person, unannounced facility inspections, which remain the “gold standard” of compliance assurance. These in-person inspections will be enhanced by the mechanisms refined by EPA during the COVID-19 public health emergency for conducting remote compliance inspections. During COVID, EPA became more adept at using data mining, aerial photography, reviewing monitoring data, and using social media to identify environmental violations. For instance, EPA’s criminal enforcement program has begun to make greater use of social media, such as the “Nextdoor app,” to connect at a neighborhood level with community members, either to alert them to EPA’s presence in their area, to learn of community concerns, or to identify individuals who believe that they have been harmed by environmental violations. Other social media tools are also likely being used by enforcement agents to initiate investigations. Whether or not these are optimal approaches to identifying enforcement targets, companies should be aware how these tools may be used in enforcement contexts, be attuned to public commentary on these social media sites, and consider proactive steps towards engagement with local communities.
Environmental Justice Priorities
With an additional $100 million in its Fiscal Year 2022 budget for environmental justice work, EPA has stepped-up enforcement efforts in communities that it has identified as overburdened by pollution. A recent publicized activity includes the Spring 2022 deployment in Louisiana of a Pollution Accountability Team (“PAT”). The PAT combines boots-on-the-ground federal and state inspectors with the remote, high-tech air pollution monitoring resources that EPA gained experience with during the height of the COVID-19 pandemic to address pollution and enhance enforcement at a community scale.
Resolution of environmental justice cases will be focused on remedies that return facilities to compliance, prevent repeat non-compliance, assess sufficient penalties that will deter future conduct, and mitigate the harm. The government is seeking to “close the environmental justice remedy gap” by combining traditional environmental claims with statutes that provide for habitability, consumer safety, and worker safety. Under DOJ’s new Comprehensive “Environmental Justice Enforcement Strategy,” ENRD will prioritize cases that reduce public health and environmental burdens in overburdened and underserved communities and meaningfully engage with impacted communities.
EPA continues to align its environmental justice enforcement activities with the states – citing its recent enforcement Memoranda of Understanding (“MOU”) with Colorado. The MOU expands collaborative enforcement efforts in communities of color and low-income neighborhoods – following on a similar effort last year with California. Where EPA believes that a state is falling behind in its enforcement work, however, the government has committed to step in and take action.
Another effort is focused on increasing community engagement at Superfund sites, particularly when it comes to selecting remedies. DOJ and EPA recently revised the Superfund guidance used as the basis for negotiating cleanup work agreements. The government expects such agreements to provide for community engagement and transparency. An example of this approach is the Toa Alta enforcement action at a landfill in Puerto Rico, where EPA released a draft consent decree to the surrounding community for their input prior to its publication in the Federal Register.
EPA’s May 2022 “Legal Tools to Advance Environmental Justice” outlines how environmental justice considerations can be incorporated into the implementation of environmental statutes. The document is double the length of its 2014 predecessor, contains a new chapter on Title VI of the Civil Rights Act, and, consistent with the observations above, emphasizes community input during investigation and resolution of Title VI complaints.
Officials also emphasize that community engagement will play an important role now that SEPs as remedies in enforcement actions have returned. Although EPA and DOJ acknowledge that SEPs are not right for every case, they have pledged to pursue SEPs where they believe it is appropriate to do so.
To illustrate that climate change is a top enforcement priority, EPA is focused on noncompliance that involves the release of compounds that can adversely impact the climate, such as methane and hydrofluorocarbons (“HFCs”). An Interagency Task Force on Illegal HFC Trade has prevented illegal HFC shipments equivalent to approximately 530,000 metric tons of CO2 emissions and issued 14 Notices of Violation to companies for failure to comply with HFC reporting obligations.
EPA is also reviewing proposed Superfund settlements to require remedies that promote climate stability and incorporating climate change resilience and mitigation protections through the use of SEPs.
Additional Enforcement Activities and Developments
- Increased use of Emergency Orders.EPA is pledging to increase use of its emergency authorities under the Clean Air Act (“CAA”), the Safe Drinking Water Act (“SDWA”), and the Resource Conservation and Recovery Act (“RCRA”) that allow the government to bring a halt to facility operations and address conditions that OECA believes constitutes an “imminent and substantial endangerment” to public health, welfare, or the environment in the surrounding areas.
- Continued focus on compliance at coal ash facilities. EPA has indicated it will continue efforts to ensure compliance with the coal combustion residuals (“CCR”) regulations under RCRA. EPA has received 70 applications from CCR facilities requesting extensions of an April 2021 deadline for initiating closure of unlined coal ash surface impoundments.Granting these extensions requires the facility to demonstrate compliance with all other aspects of the CCR regulations—an area where the OECA is actively investigating. Additionally, EPA is working with state partners to investigate compliance concerns at coal ash facilities generally, particularly where they are in communities with environmental justice concerns. Notable is EPA’s recent settlement with a Colorado facility over CCR noncompliance.
- Addressing the impact of PFAS under a variety of environmental statutes.EPA has issued 17 compliance orders related to per- and polyfluoroalkyl substances (“PFAS”) pursuant to its authority under the SDWA, Toxic Substances Control Act (“TSCA”), and Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).
Advisories and Alerts, the Audit Policy, and NCIs
One way for companies to stay in the know regarding federal enforcement priorities is to follow the subjects of OECA’s compliance advisories and enforcement alerts, as OECA officials plan to issue more in 2022. Compliance advisories and enforcement alerts generally align with the National Compliance Initiatives and promote use of the Audit Policy Program.
EPA officials continue to direct facilities to consider its Audit Policy Program, which has received over 700 audit disclosures since January 2021. EPA confirms that significant penalty relief is available through the program and directs regulated businesses to its updated and consolidated Frequently Asked Questions.
Finally, OECA is undertaking a public process to update the National Compliance Initiatives, which will outline the federal environmental enforcement priorities that will take effect in October 2023.
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