On April 30, 2021, EPA Acting Assistant Administrator for Enforcement and Compliance Assistance, Lawrence E. Starfield, a longtime US Environmental Protection Agency (EPA or Agency) attorney and senior manager, released a memorandum to EPA’s Office of Enforcement and Compliance Assurance (OECA) regarding the strengthening of enforcement within communities with Environmental Justice (EJ) concerns. This memorandum was created in response to EPA Administrator Michael Regan’s April 7, 2021 message to EPA employees on the Agency’s commitment to EJ and President Biden’s Executive Order 14008, which calls on the EPA to strengthen enforcement within “overburdened” communities.
This memorandum outlines several key issues that the OECA is expected to take action on in the near future, as the Agency addresses EJ concerns in overburdened communities where disproportionate environmental impacts are occurring. Those include:
- Increases in facility inspections in overburdened communities;
- Strengthening enforcement in overburdened communities by resolving noncompliance through community-benefitted remedies;
- Increase engagement within the communities about enforcement that most directly impacts them;
- Making EJ a shared goal with “Co-Regulators” (i.e., state and local agencies); and
- Creation of an EJ Enforcement Steering Committee within the OECA.
EPA first plans to evaluate and perform an analysis in areas of greatest concern for disproportionate impacts on the community, likely through national initiatives with Regional input via the OECA. Once this is established, EPA will develop new inspection goals for these areas. Despite the COVID-19 pandemic, the Agency plans to push forward using the safest means of inspection possible and using offsite compliance monitoring tools.
The Agency also plans to implement methods to combat ongoing noncompliance at regulated entities through pollution prevention and mitigation measures, monetary penalties, early and innovative relief, Supplemental Environmental Projects (SEPs), and providing assistance in seeking restitution for victims of environmental crimes. The Agency is asking that all avenues of injunctive relief that fulfill these goals are pursued in enforcement cases and that the use of SEPs be actively considered in settlements with willing parties. EPA is also encouraging OECA to obtain early relief for affected communities, including issuance of administrative orders and seeking preliminary injunctions.
EPA also plans to increase engagement in affected communities through education and press releases to promote awareness of their mission and the resources available to these communities, so that they can learn more about the industrial and environmental impacts that directly affect them. Tools such as EJSCREEN and the Enforcement and Compliance History Online (ECHO) will be promoted as part of this initiative.
Meeting EJ compliance and enforcement goals and responsibilities will be a shared exercise with state and local agencies, or “co-regulators” as the memorandum states. EPA plans to actively work with these agencies in an effort to craft planning efforts and achieve compliance through enforcement efforts. However, the memorandum also states that should co-regulators not take appropriate or timely action, EPA will step in to ensure that the necessary action is taken, which is a strong signal to co-regulators that EPA will be actively pursuing these types of cases despite any issues that occur at a state or local level.
In conclusion, this memorandum is a concrete, detailed indicator at the direction in which EPA plans to pursue enforcement in EJ communities. These goals and objectives align with the edicts of the current Presidential Administration and the EPA Administrator in addressing EJ issues and regulated entities should take note of this now to avoid issues of noncompliance in communities that may be identified as those that are “overburdened”.
This is a developing story, and INTERA will continue to follow it as news continues to come from the EPA on EJ and enforcement issues. Please contact Joe Pere at 512-474-9097 or Jpere@intera.com if you would like to discuss how this may affect your operations.