The Biden Administration continues to advance prioritization of funding, focus, and policy on environmental justice (“EJ”) communities disproportionately impacted by higher levels of pollution, and now is the time for companies to prepare for related changes on the horizon. The U.S. Environmental Protection Agency’s (“EPA”) Office of Enforcement and Compliance Assurance (“OECA”) recently formed an Enforcement Steering Committee to oversee and coordinate EJ enforcement work and other agency initiatives, signaling an intent to strengthen enforcement in EJ communities. See Memorandum From Lawrence E. Starfield, Acting Asst. Admin, OECA, Strengthening Enforcement in Communities with Environmental Justice Concerns (Apr. 30, 2021) (“OECA Memorandum”). OECA’s formation of the new Committee implements, in part, President Biden’s early Executive Order, which directed the agency to “strengthen enforcement of environmental violations with disproportionate impact on underserved communities.” It also builds on Administrator Regan’s message to the agency in early April, in which he instructed EPA staff to “strengthen enforcement of violations of cornerstone environmental statutes” in communities “overburdened by pollution.” See Biden’s “Whole of Government” Approach to Environmental Justice here and Companies Should Expect Policy, Enforcement Changes After President’s EPA Budget and EPA Administrator’s Directive Spotlight Environmental Justice here.
EJ communities are frequently co-located with industrial facilities, and OECA will likely focus new inspections and related enforcement on concentrated industrial corridors or facilities with historic or ongoing regulatory compliance challenges. In light of this, there are a number of steps companies can take to be prepared for and responsive to these efforts.
New Inspection Goals
Companies should closely monitor OECA’s development of “new inspection goals” outlined in the OECA Memorandum, which will result from an analysis of what types of programmatic inspections would assist in addressing the most serious threats to EJ and overburdened communities. Programmatic inspections are used by EPA to combine inspections under one statute, such as the Clean Air Act, with another, such as the Resource Conservation and Recovery Act or the Clean Water Act. EPA will also increase its use of community air quality monitoring stations, as well as other “offsite compliance monitoring tools,” to identify pollution concerns in EJ communities.
For companies that may be involved in current EPA enforcement matters, EPA plans to “resolve environmental noncompliance through remedies with tangible benefits for the community.” See OECA Memorandum. Remedies that provide benefits for communities may include: injunctive relief focusing on remediating current and past pollution and harms, obtaining restitution for victims of environmental crimes, imposing “innovative relief,” such as fenceline monitoring and transparency initiatives, and incorporating Supplemental Environmental Projects (“SEPs”) into settlements with violators. To increase the use of SEPs, however, the administration will need to revise a Trump Administration rule prohibiting SEPs in settlement agreements, a task OECA indicates is already underway. This was made clear in a separate EPA OECA memorandum issued on April 26, 2021.
Federal Coordination with EJ Communities
Companies may also see increased activity among local community groups and organizations spurred by EPA efforts to work with, and to share information with, overburdened communities. Efforts will include increasing public access to compliance data, such as EJSCREEN and EPA’s ECHO site, as well as increased engagement in enforcement cases through increased awareness of federal resources, such as the newly created Environmental Crime Victim Assistance Program. This novel U.S. Department of Justice and EPA program will help advance EJ by identifying crime victims in EJ communities, educating said victims on their rights, and facilitating equal access to the criminal justice system.
In addition, companies should not assume that state or local enforcement will preclude EPA enforcement. While U.S. states bring over 90 percent of current enforcement actions in these communities, the agency has stated that it will “not hesitate to step in and take necessary action” under its statutory authority where it believes state or local action is too slow.
Key Steps for Companies
While the COVID pandemic led to an increase in deferred inspections or remote alternatives by EPA and states, the agency has clearly signaled an intent to ramp up on-site inspections if such reviews can be performed safely and are focused on a facility or facilities in overburdened communities with reported health impacts. To understand potential corporate exposure and risk, companies should consider undertaking a review of their public compliance record, including both existing and historic matters, as well as any new, existing, or historic tensions with the surrounding community. Further, if companies have not already done so, they to need to understand local demographics, the facility’s environmental and community impacts, and the reputation of their facility or operations with the local public and regulators. Companies should increase attention to tracking and engaging local concerns regarding compliance; in the current enforcement climate, local concerns can quickly garner broader attention, including by local and federal regulators.
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