Proactive Enforcement is Key in the EPA FY2022-2026 Strategy

Earlier this year, EPA released its FY 2022-2026 Strategic Plan.¹ A core element of the plan focuses on environmental compliance. In particular, EPA has established two (2) objectives for environmental compliance: (1) Hold Environmental Violators and Responsible Parties Accountable; and (2) Detect Violations and Promote Compliance.  Let’s review EPA’s approach to accomplish these two objectives.

EPA has a long history in aggressive enforcement of applicable multi-media regulations for significant and complex operations. In FY21 alone, EPA issued more than $8.4 billion in compliance violations.²  Local and state agencies contributed an additional $156 million in penalty assessments.  EPA’s enforcement focus is primarily associated with the national compliance initiatives (i.e., EPA’s immediate priorities across multi-media programs) and longstanding high-risk activities that have historically led to significant environmental impacts (e.g., treatment, storage, and disposal sites (TSDFs); large quantity generators (LQGs) of hazardous waste; and hazardous air pollutant emissions from major sources; etc.).  With the recent invigorated interest associated with Environmental Justice reviews nationwide, EPA is committing significant resources to a stronger enforcement posture.

To address the first objective, “Hold Environmental Violators and Responsible Parties Accountable”, EPA has identified a four (4) part strategy:

1. Taking Timely Enforcement Action: Commitment to implementing an aggressive enforcement program to address noncompliance.
2. Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements: Use policy and legal tools such as advanced monitoring, audits and independent third-party verification, electronic reporting, and increased transparency of compliance data to demonstrate compliance and where appropriate, achieve compliance as soon as possible.
3. Strengthening Environmental Justice Through a Robust Enforcement Program: Use of EJSCREEN, in combination with local knowledge and resources to identify communities that may be disproportionally impacted by pollution.
4. Tackling Climate Change Through Enforcement: Target violators of the American Innovation and Manufacturing (AIM) Act (i.e., reduce the use of hydrofluorocarbons [HFCs] that are potent GHGs), the Renewable Fuel Standard (i.e., increase the use of bio-based fuels), and regulations that apply to oil and gas sources and landfills to aggressively address climate change and GHG emissions.

These steps are intended to quickly identify and address environmental non-compliance scenarios that have potential or actual negative impact on the environment and applicable communities (e.g., threatening or contaminating soil and waterbodies, releasing toxics into the air, contaminated drinking water, etc.). By accelerating the discovery and mitigation of serious environmental non-compliance issues, EPA believes this approach will protect natural resources and potentially impacted communities and level the playing field for businesses that proactively focus on meeting and maintaining compliance with all applicable environmental permits, requirements and regulations.

The second objective, “Detect Violations and Promote Compliance”, that EPA has established to improvement environmental compliance focuses on the use of effective compliance tools (e.g., inspections, monitoring activities, and technical assistance supported by evidence and advanced technologies) to evaluate and monitor the regulated businesses and communities.  Similar to the first objective, EPA has identified a four (4) part strategy for the second objective:

1. Producing Timely Inspection Reports: Reduce the time from when EPA conducts an on-site inspection to the time that EPA provides the facility with a completed inspection report. Address compliance issues quickly to generate a direct benefit to the affected communities regarding alleged violations.
2. Focusing Compliance Assurance Activities on Communities, Especially Those with Environmental Justice Concerns: Increase the percentage of inspections at facilities affecting overburdened communities. Advance the detection and resolution of noncompliance activities in communities with environmental justice concerns.
3. Improving Compliance Assurance Data Management and Enforcement Targeting Capabilities: Effective use of data management and data science capabilities to improve compliance and enforcement. Improve the collection and management of compliance monitoring information through modernization of existing data systems and creation of new tools to streamline the compliance monitoring process.
4. Tackling Climate Change Through Compliance Assurance: Advance the efforts to address climate change mitigation and adaptation issues through targeting, monitoring, and technical assistance (e.g., direct monitoring and targeting efforts of emission sources with the greatest potential for noncompliant emissions of GHGs; technical assistance on climate resilience to wastewater and drinking water facilities; and vigorous enforcement of regulations to prevent and deter the illegal importation of HFCs).

EPA’s strategic efforts to achieve the second objective relies upon the quick detection and resolution of non-compliance issues within the regulated community. Addressing non-compliance conditions as quickly as possible eliminates future environmental impacts and releases, especially upon communities with existing environmental justice concerns; uses technologies and electronic data reporting results to quickly identify non-compliance conditions; and educates the regulated community as needed on the applicable environmental requirements of concern and how to achieve and maintain compliance.

The regulated community should understand EPA’s enforcement strategy for the next four years and assess their operations to determine compliance and conformance with EPA’s objectives. A proactive stance towards ensuring environmental compliance as a baseline performance standard strengthens a company’s reputation in the community, raises awareness and improvement from its workforce and contributes to stronger financial performance by avoiding penalties and extended focus from the regulatory agencies. In addition, companies that proactively evaluate their potential impacts on the communities where they operate will benefit from the insight gained and better navigate their future. This evaluation should consider new technologies and processes that lead to minimizing or eliminating their various environmental impacts.  These actions will demonstrate the company’s proactive steps to engage and support the goals and objectives of environmental justice.

¹ – FY 2022-2026 EPA Strategic Plan, United States Environmental Protection Agency (USEPA), March 28, 2022

² – Enforcement Annual Results for Fiscal Year 2021 | US EPA