My role as an attorney and counselor can be described as helping the designated felon sleep better. So, it may be helpful for those of you who have the pleasure of this designation, to talk about enforcement; after all, it may be helpful to know who, or what is on EPA’s radar. And, although the topic is getting little airplay, the way the regulators are inspecting is changing. This blog will look briefly at both these issues.
EPA has recently published the results of its 2015 enforcement efforts. Some interesting facts can be gleaned from some of the information contained in the Report.
First, the main focus of the enforcement activities were:
- Reducing Air Pollution from the Largest Sources
- Cutting Hazardous Air Pollutants
- Ensuring Energy Extraction Activities Comply with Environmental Laws
- Reducing Pollution from Mineral Processing Operations
- Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters?
- Preventing Animal Waste from Contaminating Surface and Ground Water
So, if your business involves any of these activities, you were, and probably still are, on the enforcement radar screen (ERS) (this is an acronym I just made up because we environmental law practitioners like acronyms).
Second, those on the ERS “contributed” the following:
- $7 billion to control pollution and clean up contaminated sites
- $404 million in federal administrative, civil judicial penalties and criminal fines
- $4 billion in court-ordered environmental projects resulting from criminal prosecutions
- 129 combined years of incarceration for sentenced defendants
- $1.975 billion in commitments from responsible parties to clean up Superfund sites
- $39 million for environmental mitigation projects
Third, from the civil side, there were 141 cases referred to the Department of Justice, 108 complaints filed, 132 cases resolved, 1,400 administrative penalty complaints, nearly that many administrative penalty orders, over 800 administrative compliance orders and over 15,000 inspections made. See, http://www.epa.gov/enforcement/enforcement-annual-results-numbers-glance-fiscal-year-fy-2015
Fourth, on the criminal side, there were 213 cases opened, 185 defendants charged, sentencing resulting in 129 total years of incarceration, $200 million of restitution and fines , and $4 billion of Court ordered environmental projects. See the very same link above.
Fifth, So how does all this translate to our neck of the woods? Region VII initiated 197 cases while concluding 203. Region V was more active with 319 cases initiated and 323 concluded.
Sixth, due to EPA’s diminishing budget, the number of inspections has declined as well. There is a summary of enforcement activities found here.
The fact that inspections are down will not necessarily translate to less enforcement activities, because a new generation of enforcement is upon us. In a 2013 blog (yes this might seem a little dated but the techniques used are only slowly developing), the Assistant Administrator of Enforcement, Cynthia Giles, wrote about the three components of this new enforcement strategy. New rulemaking will include compliance built in.
What is particularly interesting, though some in the regulated community might find a little scary, are enhanced monitoring techniques such as continuous monitoring which uploads compliance data to the regulators instantaneously, or the use of new technologies that use infrared cameras to see releases invisible to the naked eye. The former technology will enable the agencies to inspect, without sending an inspector to the site. The latter will allow an agency to determine compliance from the property line without actually entering the facility.
EPA’s website provides a little more detail on the NextGen strategy. There, the Agency talks about the five components of NextGen. They include:
- EPA will attempt to promulgate regulations and issue permits that are easier to implement, with the hopes of improving compliance and environmental benefits.
- Use advanced emissions and pollutant detection technology to more easily see pollutant discharges, environmental conditions, and noncompliance.
- Shift toward electronic reporting.
- Make information more accessible to the public and thus more transparent.
- Develop innovative enforcement approaches like data analytics and targeting to achieve more widespread compliance.
See, http://www.epa.gov/compliance/next-generation-compliance. EPA will work to “include them whenever appropriate in civil judicial and administrative settlements. These tools can be incorporated into settlements in a variety of ways, such as injunctive relief, mitigation, or Supplemental Environmental Projects.” Memorandum from Cynthia Giles, January 7, 2015. Citations omitted.(but you can get the memo at the above website.
Of course, some companies may use these innovations to their advantage. FLIR camera technologies are readily available at a wide range of price points. Purchasing and using these types of cameras would enable a company to inspect its own equipment, supply lines and tanks for leaks that would not be visible and allow them to better maintain it. More importantly, doing so would allow the company to do so, before a regulatory used the technology in an inspection which could lead to an enforcement action, which results in more expense defending it and with the potential for civil penalties.
So, I suppose it is safe to say that enforcement will continue, despite the downward spiral of the EPA budget. However, the way that the regulators will enforce is changing as technology advances.
Therefore, it might be prudent to take action to incorporate the technologies into a compliance program, before the technologies are used as a tool in an enforcement action against your company.
