By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.

In yet another move providing relief to industry from federal enforcement, the EPA Office of Enforcement and Compliance Assurance (OECA) last week issued an Interim Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (January 22, 2018) (Guidance).

The Guidance, issued by OECA Assistant Administrator Susan Parker Bodine to Regional Administrators, suggests, with respect to enforcement cases,  a more collaborative partnership between the EPA and states with authorized environmental programs.  It applies to all EPA compliance assurance activities, and Bodine anticipates it will  “develop principles and best practices for State and EPA collaboration in inspections and enforcement, work planning and implementation, National Enforcement Initiatives, and outcome and performance measurement.”

The Guidance sets out the expectation that EPA Regional Offices and their respective states will henceforth work together to achieve environmental compliance rather than EPA repeatedly auditing state level efforts (or from the standpoint of regulated industry, interfering with them).  The Guidance calls for the Region and State to discuss and share information including lists of planned inspections as well as an understanding concerning when a facility will be informed of an inspection in advance.  For any planned program audits, “EPA findings should be considered preliminary until the State has had an opportunity to review and respond.”  Except in emergency situations, EPA aims to allow states to address a deficiency prior to being subject to enforcement action.

Under the Guidance, EPA recognizes that States are given “primacy” in authorized programs.  “With respect to inspections and enforcement, EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs….”  EPA expects to “step in”,  in limited circumstances where actions require specialized EPA equipment and/or expertise, or where noncompliance issues need to be tackled at an interstate level.  Generally, “the Region should defer to the State except where the EPA believes that some EPA involvement is warranted.”

While the notion of cooperative federalism grants states leeway to decide how best to enforce environmental programs, allowing them to consider the unique circumstances and stakeholder interests in their state, the reality is the Guidance places a heavy burden on states to take on more responsibilities while dealing with their own budgetary constraints.  “Cooperative federalism” presumes states have adequate financial support to implement complex environmental requirements.

OECA expects to evaluate the success of the Guidance by requesting that Regions provide a progress report by September 28, 2018.  Unless the new approach is coupled with adequate financial support from the federal government to assist states in implementing complex and broad federal requirements, the collaborative partnership that the Guidance aims to achieve may be strained from inception.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: EPA has promulgated its new per violation penalty rules for 2018.

The U.S. Environmental Protection Agency (EPA) has again issued final regulations adjusting the maximum civil penalty dollar amounts for violations of various environmental regulations. 83 Fed. Reg. 1190 (January 10, 2018).

The action is mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), which not only required an adjustment from 2015 penalty maximum levels to account for inflation, but also included a catch-up provision for inflation. The provision required each agency to evaluate and provide for an inflation adjustment dating back to the enactment of the relevant statute’s effective date. Section 5(b)(2)(C) of the 2015 Act provided that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015. See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016).

The 2015 Act required that, in addition to the initial catch-up, beginning January 15, 2017, each agency was required to make subsequent annual adjustments for inflation. The 2018 penalty adjustments will be effective January 15, 2018 for all violations which occur or occurred after November 2, 2015 and are assessed after January 15, 2018.

The 2018 rulemaking sets the maximum penalty by statute. For example, the $25,000 per-violation maximum penalty under the Clean Air Act will now be inflation-adjusted to $46,192; under the Clean Water Act will now be $46,192; under RCRA will now be in a range of $58,562 to $72,718, and under CERCLA (including most EPCRA violations) will now be $55,907. Other maximum penalties are also adjusted.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

EPA SignSeyfarth Synopsis: The EPA and Army Corps of Engineers have proposed to rescind the 2015 Clean Water Rule defining “Waters of the U.S.,” and recodify the pre-existing rule, then engage in a subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably intended to decrease in the number of water bodies subject to EPA permitting obligations.

The U.S. Environmental Protection Agency and the Army Corps of Engineers have published a proposed rule on the “Definition of “Waters of the United States” – Recodification of Pre-Existing Rules.”

We had previously blogged about the EPA’s monumental final rule, in June 2015, expanding the definition of “Waters of the United States” (WOTUS) under the Clean Water Act, thereby increasing the number of water bodies subject to protection by the EPA through permitting obligations. The final rule was based on EPA’s Science Advisory Board’s draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” EPA/600/R-11/098B (September 2013).

In commenting on the proposed rule to rescind the WOTUS rule, EPA Administrator Scott Pruitt said, “we are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses …. This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

The proposed rescission follows President Trump’s February 28, 2017, Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The effect of the rescission would be to recodify the regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of a U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 rule. Therefore, according to the EPA press release, this action, when final, “will not change current practice with respect to how the definition applies.”

EPA also notes that the agencies have begun deliberations and outreach on the second step of the rulemaking involving a reevaluation and revision of the definition of WOTUS in accordance with the Executive Order.

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort closely.  While this initial step will recodify the pre-existing rule, the subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably is intended to reduce the number of regulated water bodies constituting “waters of the United States,” thereby decreasing permitting obligations, or subjecting fewer entities to permitting requirements as a result of a narrower definition of WOTUS.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Patrick D. Joyce

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration, we anticipate that EPA is not only likely to pivot away from an enforcement heavy to a more business friendly agenda, it is also likely to abandon many of the previous administration’s landmark climate regulations and take a more measured approach to climate change.

The U.S. presidential election outcome has left many with questions about what to expect with the new administration and a Republican-controlled Congress. However one thing is certain: we will experience a 180 degree shift in current environmental policy when Donald Trump takes office in January 2017.  Below is a synopsis of the key environmental changes we expect to see under the Trump administration, although, of course, nothing is certain given the overall lack of information regarding Mr. Trump’s policy proposals and no background as to how he will act as an elected official.

Regulatory Reform

Mr. Trump has stated that he will likely issue a temporary moratorium on all new environmental regulation, and plans to strike regulations which his administration deems “unnecessary” and that “kill jobs and bloat government.”  Specific rules Mr. Trump has singled out to “eliminate” include: the Interior Department’s proposed Stream Protection Rule to safeguard communities from coal mining operations; the EPA and Army Corps of Engineers’ Clean Water Rule redefining water bodies subject to federal jurisdiction and protection; and EPA’s Clean Power Plan which requires states to develop strategies to reduce carbon dioxide emissions from power plants.

In addition, currently proposed EPA rules will likely not be made final, and environmental regulations facing challenges in the courts could be weakly defended by the Justice Department at the direction of the new administration. It is also possible any regulations that make it to the U.S. Supreme Court will be struck down by a conservative Court. Rescinding regulations that do not fall in line with the new administration is a possibility, but one that requires another EPA rulemaking process that may face challenges by environmental groups and states in support of the regulations.

Energy

Mr. Trump has indicated he has plans to revamp U.S. energy policies to make the U.S. a net energy exporter by opening onshore and offshore leasing on federal lands and waters to encourage production of energy resources. He also has hinted at plans to review all “anti-coal regulations,” rescind the coal mining lease moratorium on new federal coal leases announced in January 2016, and open up more public land for fossil fuel extraction. Eliminating the proposed Stream Protection Rule will remove regulatory requirements for the coal mining industry to consider the effects of their operations on groundwater, surface water, and endangered species, making it cheaper and easier to mine coal.  At the same time, the new administration is likely to focus on promoting policies and regulations to develop the infrastructure necessary for the export of fossil fuels.

While the fossil fuel industries may receive less scrutiny under environmental regulations under the Trump administration, the new administration may not change the renewable energy sector significantly because individual states have made significant progress in this area. For example, many states now require utilities to draw a percentage of their generation capacity from renewable energy sources and have implemented policies and set future goals to increase the use of renewable sources.  Corporations are increasingly procuring their own power, from rooftop solar energy to utility-scale wind farms, all of which are contributing energy to the electric grid.  Federal regulation that may interfere with states’ progress in the renewable energy sector is unlikely given Mr. Trump’s disfavor for regulations and the Republican position against limiting states’ rights.

Climate Change

Under the new administration, and with climate change skeptic Myron Ebell on the shortlist to become EPA Administrator, regulations for controlling greenhouse-gas emissions face a high likelihood of being scrapped, including the Clean Power Plan, mentioned above, and the Obama administration’s Climate Action Plan.  It is also highly like the U.S. will back out of the Paris Agreement, where more than 190 countries agreed to reduce their carbon dioxide emissions and limit global warming to below two degrees Celsius.  The agreement calls for “appropriate financial flows, a new technology framework and an enhanced capacity building framework” to support action by developing and vulnerable countries.  While formally withdrawing from the agreement may prove difficult due to a time-specific exit clause barring exit for three years from the date of ratification, followed by a one-year waiting period upon a request to withdraw, the new administration could opt to ignore the agreement and refuse to provide financial aid.  Without the participation of the U.S., the world’s second-largest greenhouse gas polluter, the goal to limit global warming may be unattainable.

Supreme Court and Agency Decision-making

With a Republican president and Republican-controlled Congress, a conservative Justice will almost certainly be appointed to the U.S. Supreme Court and as a result, we expect the Court to be less deferential to agency decision-making. We had previously blogged about the U.S. Supreme Court’s decision in Perez v. Mortgage Bankers Association and indicated that conservative leaning Supreme Court justices have called into question whether agency interpretations of their own regulations should be given any judicial deference.  The appointment of a conservative Justice could tip the scale in favor of curbing the level of deference given to agency interpretations, thereby prompting agencies like the EPA to undertake the formal rulemaking process more frequently to amend their interpretations of existing rules.

EPA’s National Enforcement Initiatives

The EPA selects National Enforcement Initiatives (NEIs) every three years, to prioritize its resources on the most significant environmental risks that can be mitigated by government action, and those issues where noncompliance is a significant contributing factor.  The NEIs for fiscal years 2017 – 2019 went into effect on October 1, 2016, and include: a focus on reducing air pollution from the largest sources and reducing hazardous air pollutants; ensuring energy extraction activities comply with environmental laws; reducing pollution from mineral processing operations and reducing risks of accidental releases at industrial and chemical facilities; and protection the nation’s waters from industrial pollutants, raw sewage, contaminated stormwater, and animal waste.

These enforcement priorities will very likely shift under the new administration which has the ability to redirect resources from one priority to another. Given Mr. Trump’s focus on revamping the U.S. coal industry, he is likely to de-emphasize the enforcement of environmental laws in the energy extraction sector and instead opt for a business-friendly approach.  The EPA as a whole may begin to approach enforcement more reactively when incidents prompt intervention, rather than proactively to prevent environmental disasters.  Enforcement may be replaced by increased agency initiatives to promote compliance assistance and more heavily consider the costs of environmental compliance on the regulated community.  Decreased enforcement activity could in turn lead to citizen suits to force the EPA to enforce its regulations.

Conclusion

Navigating environmental policy under the new administration will likely involve paying closer attention to state regulatory regimes that will move to the forefront in instances of reduced federal regulation. EPA could shift a large portion of environmental regulation and enforcement to the states, subjecting multi-state companies to different state-specific regulatory requirements.  We will continue to monitor the changes sure to take place for environmental compliance and enforcement under the Trump administration and will provide more clarity as the situation unfolds.  However, keep in mind that the EPA is like a cargo ship out on the ocean; it takes time to change course.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Kay R. Bonza and Craig B. Simonsen

Private jet plane in the blue skySynopsis: EPA’s recent finding paves the way for the Agency to develop standards regulating greenhouse gas emissions from aircraft. Businesses in the commercial jet manufacturing and aviation transportation industry should watch this rulemaking closely, as it will affect environmental compliance costs and may have an impact on the cost of capital purchases and daily operations.

On July 25, 2016, the U.S. Environmental Protection Agency (EPA) issued a final determination under the Clean Air Act, finding that greenhouse gas (GHG) emissions from certain types of aircraft engines contribute to air pollution that causes climate change and endangers public health and the environment.

The EPA determination applies specifically to the six well-mixed GHGs in the atmosphere: carbon dioxide (CO2), methane, nitrous oxide, hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Two of these six gases, CO2 and nitrous oxide, are emitted by aircraft engines.  The EPA’s determination triggers its duty under Section 231 of the Clean Air Act to promulgate aircraft engine emission standards.

Approximately 89% of U.S. aircraft GHG emissions are included in the determination, from smaller jet aircraft, to the largest commercial jet aircraft on the market. The determination does not cover some small jet aircraft, including piston-engine aircraft, helicopters, and military aircraft.  According to Janet McCabe, EPA’s Acting Assistant Administrator for the Office of Air and Radiation, “aircraft are the third largest contributor to GHG emissions in the U.S. transportation sector, and these emissions are expected to increase in the future.”

The EPA is not yet issuing proposed emission standards, nor are they commenting on what those standards will be. The International Civil Aviation Organization (ICAO), which works with member states and industry groups to develop international civil aviation standards and policies, anticipates releasing its international aircraft CO2 standards in March 2017.  The EPA will look to the ICAO standards as a starting point in drafting domestic aircraft engine standards.  ICAO member states, including the U.S., will be required to adopt standards that are at least as stringent as the ICAO standards.

According to the EPA, its determination supports the goals of President Obama’s Climate Action Plan to reduce carbon pollution from large sources.  Approximately 12% of the U.S. transportation sector’s GHG emissions come from U.S. aircraft, and U.S. aircraft account for 29% of global aircraft emissions.  Once the EPA promulgates aircraft emission standards, Section 232 of the Clean Air Act requires the Federal Aviation Administration to prescribe regulations that ensure compliance with these standards.  Any standards that EPA sets “must not cause a significant increase in noise or adversely affect safety.”

Future GHG standards for aircraft could significantly increase the costs of environmental compliance, capital purchases, and daily operations for the aircraft engine manufacturing industry. Businesses in this industrial sector may wish to keep an eye on the EPA rulemaking, participate in public meetings, and provide comments to EPA as appropriate.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Compliance Concept on İnterface Touch ScreenSeyfarth Synopsis: EPA finalized its new per violation penalty rules that in some cases now increase by substantial amounts.

In a federal rulemaking published last week, the U.S. Environmental Protection Agency (EPA) issued interim final regulations adjusting the maximum civil penalty dollar amounts for violations of various provisions of law. 81 Fed. Reg. 43091 (July 1, 2016).

The recently enacted Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), not only required an adjustment form current penalty maximum levels to account for inflation, but also included a catch-up provision for inflation. That requires each agency to evaluate and provide for an inflation adjustment dating back to the enactment of the relevant statute’s effective date. (Section 5(b)(2)(C) of the 2015 Act provides that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015.) See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016). In addition, beginning January 15, 2017, each agency must make subsequent annual adjustments for inflation.

EPA’s interim final rule revises Table 2 to 40 CFR 19.4, showing the results of the Agency’s calculations and adjustments, that include: (1) the maximum or minimum penalty level established when each statutory section was originally enacted or last adjusted by Congress; and (2) the statutory maximum or minimum civil penalty level, adjusted for inflation under the 2015 Act, that applies to statutory civil penalties assessed on or after August 1, 2016 for violations that occurred after November 2, 2015.

Readers familiar with EPA’s penalty structure know that statutory penalties of $25,000 per day per violation were previously adjusted for inflation to $37,500. With the catch up provision under the interim final rule, the maximum penalty will vary by statute. For example, the $25,000 per violation penalty under the Clean Air Act is now $44,539; under the Clean Water Act is now $44,539; under RCRA is now in a range of $56,467 to $70,117, and under CERCLA (including most EPCRA violations) is now $53,907. Other maximum penalties are also adjusted.

The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Compliance, Enforcement & Permitting Team.

By Patrick D. Joyce and Craig B. Simonsen

pumpjack, West Texas, cottonwood treeThe U.S. EPA announced earlier this week a proposed rule to reduce emissions of greenhouse gases (GHG) and volatile organic compounds (VOC) from the oil and natural gas industry. The proposal is nearly 600 pages long. Proposed rule (August 18, 2015).

The proposed rule will add methane to the list of gasses regulated at new, modified, and reconstructed equipment at completed hydraulically fractured oil and gas well sites, compressor stations, and processing plants. The proposed rule also expands the regulation of VOCs to cover certain existing sources such as storage tanks, pneumatic controllers, compressors, and fugitive emissions in ozone nonattainment areas.

The oil and gas industry has expressed concern that the proposed regulations will hurt productivity and points out that the industry has already taken great strides to reduce methane emissions at well sites.

We had previously blogged about the Administration’s goal, under the President’s Climate Action Plan, to cut methane emissions from the oil and gas sector to 40 to 45 percent below 2012 levels by 2025. EPA indicated that methane is the second most prevalent greenhouse gas emitted in the United States “from human activities,” and that nearly “30 percent of those emissions come from oil production and the production, transmission and distribution of natural gas.” Pound for pound, methane’s impact on the environment is 25 times greater than carbon dioxide.

The proposed standards will affect certain new, modified, and reconstructed equipment, processes and activities, and are “based on practices and technology currently used by industry.” To cut methane and VOC emissions, the proposed rule requires:

  • Finding and repairing leaks;
  • Capturing natural gas from the completion of hydraulically fractured oil wells;
  • Limiting emissions from new and modified pneumatic pumps; and
  • Limiting emissions from several types of equipment used at natural gas transmission compressor stations, including compressors and pneumatic controllers.

The Agency’s fact sheet on the proposed rule indicates that the rule is “a step estimated to yield a 95 percent reduction in VOCs, and a similar methane reduction as a co-benefit.”

In addition to the proposed rule, the Agency also issued a 310 page Control Techniques Guidelines for the Oil and Natural Gas Industry (Draft). EPA-453/P-15-001 (August 2015). The fact sheet provides guidance to states for the regulation of VOCs in ozone nonattainment areas and the mid-Atlantic and northeastern states in the Ozone Transport Region.

The Agency will accept public comment on the proposed rule for 60 days after the publication in the Federal Register.

By Ilana R. Morady, Meagan Newman, and Craig B. Simonsen

SaferChoiceThe U. S. Environmental Protection Agency introduced this week the “Safer Choice” label, indicating that Safer Choice helps consumers, businesses, and purchasers find products that perform well and are safer for human health and the environment.

We had blogged last year that EPA’s Office of Inspector General had released a report on an evaluation of the EPA’s “Design for the Environment” (DfE) Program – its previous “green” logo/label. At A Glance, No. 14-P-0349 (September 9, 2014). The Inspector General found flaws in the DfE logo, including that it improperly implied an EPA endorsement.

EPA, it claims, spent more than a year collecting ideas and discussing new label options with stakeholders, such as product manufacturers and environmental and health advocates, with the result being its new Safer Choice label.

Administrator Gina McCarthy, in her blog on the topic, states that “[o]ur scientists employ a stringent set of human health and environmental safety standards when reviewing products for the Safer Choice program, so a product with the label is backed by EPA science. Consumers know it’s a credible stamp they can trust.”

According to the Agency, more than 2,000 products are currently qualified to carry the Safer Choice label. Safer Choice products, the Agency notes, are available for the home at retail stores, and for use in businesses, schools, hotels, offices, and sports venues.

The EPA’s website has been updated to provide “Safer Choice partners and product manufacturers” information in order to qualify and apply for the Safer Choice label. To carry the label, a product must meet the Safer Choice Standard, which includes:

To manufactures this Safer Choice label may represent an opportunity to present your products in new and valuable — Green — ways. Applicants, though, are cautioned to first investigate the likelihood for Safer Choice listing, and any potential downside or liabilities that might be raised in making the “Green” claims.

Image from www2.epa.gov/saferchoice/learn-about-safer-choice-label.

By Ilana R. Morady and Craig B. Simonsen

The U.S. Environmental Protection Agency’s Office of Inspector General has just released a report on an evaluation of the EPA’s “Design for the Environment” (DfE) Program. At A Glance, No. 14-P-0349 (September 9, 2014). The Inspector General found flaws in the current DfE logo, including that it improperly implied an EPA endorsement.

Since its establishment over fifteen years ago the EPA’s Design for the Environment Program has evaluated and approved more than 2,500 products to carry the DfE logo. In 2014 the EPA updated the “Safer Chemical Ingredients List” adding over 50 chemical ingredients and bringing the number of safer chemical ingredients to about 650. The DfE Program has also developed a new database system that the Agency suggests will enable it to better manage chemical, partner, and product information in a cloud-based system.

Issues the Inspector General found are that the current DfE logo does not adequately communicate to the consumer that the product is a safer product. The Inspector General also found a risk that an EPA endorsement of DfE products may be implied by the current logo, but any such EPA endorsement is not allowed. The EPA also “lacks sufficient controls over the use of its DfE logo” by former program participants.

The Inspector General also found that the EPA asserts that DfE products are cost effective, “but this has not been determined or reviewed.” In addition, “there are weaknesses in both former and proposed performance measures used by the DfE program” and EPA cannot accurately determine the program’s impact on pollution prevention.

To solve the issues with the DfE Program, the Inspector General recommended that EPA improve the DfE logo, periodically review program participants’ compliance with partnership agreements, address noncompliance with those agreements, remove statements on the EPA’s website that imply that DfE products are cost effective, and develop a performance measurement system.

The EPA has already published a notice seeking comments on four new possible re-designs for the DfE logo.

In the announcement, Jim Jones, the Assistant Administrator for Office of Chemical Safety and Pollution Prevention, says that the Agency “wants to hear from the American people on which designs will help people identify household cleaning and other products that are safer for families and the environment.” Jones specifically asks the public: “What is most appealing to you? What best conveys the concept of safer products for your family’s health? What are your thoughts on the words, graphic, colors and shapes?”

No doubt that industry — and public — input will be important in the re-design of the DfE logo.

Comments on the proposed DfE labels will be accepted until October 31, 2014.

By Andrew H. Perellis and Craig B. Simonsen

The U.S. Environmental Protection Agency has just announced its Final Fiscal Year 2014-2018 EPA Strategic Plan (April 10, 2014). We had previously blogged about the Draft Strategic Plan.

According to EPA’s Administrator, Gina McCarthy, “EPA will address the increasingly complex array of environmental challenges we face by advancing a rigorous research and development agenda that informs and supports our policy and decision making with timely and innovative technology and sustainable solutions.” “We are heeding President Obama’s call for action on climate change, the biggest challenge for our generation and those to come by building strong partnerships at home and around the world. We are working to mitigate this threat by reducing carbon pollution and other greenhouse-gas emissions and by focusing on efficiency improvements in homes, buildings and appliances.”

EPA’s five strategic goals include:

  • Addressing climate change and improving air quality;
  • Protecting America’s waters;
  • Cleaning up communities and advancing sustainable development;
  • Ensuring the safety of chemicals and preventing pollution; and
  • Protecting human health and the environment by enforcing laws and assuring compliance.

A focus of the Strategy is EPA’s new “Next Generation Compliance” paradigm, meant to improve compliance and reduce pollution. According to the Agency, Next Generation Compliance “takes advantage of new information and monitoring technologies to enable EPA, states, and tribes to get better compliance results, and tackle today’s compliance challenges.” Draft Strategic Plan, page 42.

EPA’s Next Generation Compliance supports EPA’s new “E-Enterprise initiative” by “promoting electronic reporting, advanced monitoring, and transparency.” In fact, the Agency posits, “this initiative will move us from using paper to electronic transactions, increase the use of advanced monitoring technologies to obtain better, more complete information on environmental conditions and pollution sources, and deliver data that is transparent, readily available, and understandable to EPA, the states, and the general public. Through E-Enterprise, the entire environmental protection enterprise (federal, state, local, and tribal partners) will be able to regularly conduct two-way business electronically in an integrated way, reducing costs while enhancing environmental protection.” Page 64.

EPA’s Next Generation Compliance paradigm is focused on five areas:

  1. Designing regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes.
  2. Using and promoting advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see quantified pollutant discharges, environmental conditions, and noncompliance.
  3. Shifting toward electronic reporting by regulated entities so that we have more accurate, complete, and timely information on pollution sources, pollution, and compliance, saving time and money while improving effectiveness and public transparency.
  4. Expanding transparency by making the information we have today more accessible, and making new information obtained from advanced emissions monitoring and electronic reporting more readily available to the public.
  5. Developing and using innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance.

Page 69-70.

Obvious in this Strategy is the Agency’s steady movement toward requiring that regulatory filings be both filed electronically AND immediately accessible to the public. We have blogged on the Agency’s work to enable this sort of electronic reporting, such as in its waste e-manifest rulemaking and its Clean Water Act e-filing rulemaking. These sorts of electronic reports and data filings, if readily accessible to the public, may well end up bringing continuous scrutiny to regulated entities, and likely will bring and facilitate more citizen law suits. As such, regulated entities should review their policies, procedures, and training programs to ensure their facilities and processes are in constant compliance.