Preparing for Enhanced Enforcement in Overburdened Communities

In response to President Biden’s executive order requiring all federal agencies to embed equity into their programs and services, Michael Regan, EPA’s Administrator, directed all EPA offices to “strengthen enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution.” Internal memoranda were then issued regarding strengthening civil, criminal, and clean-up enforcement in communities with environmental justice concerns.

These internal memos are fairly general in nature but do have enough information to provide some insight into EPA’s direction as to environmental justice and enforcement. Essentially, the overall message is that EPA will use all available statutory and regulatory methods and mechanisms to minimize potential risks from ongoing or historic pollution in or near overburdened communities.

As to enforcement, EPA will increase the number of inspections in overburdened communities, resolve non-compliance using remedies with tangible benefits to that community, such as environmental projects, preventing further pollution, or fence-line monitoring, and increasing engagement with overburdened communities about enforcement cases. EPA’s Office of Land and Emergency Management also announced in December 2021 that it will analyze compliance patterns of Spill Prevention, Control, and Countermeasure (SPCC) and Facility Response Plan (FPC) facilities in overburdened communities and identify locations that are more likely non-compliant in order to focus future inspections and compliance efforts on these areas. In other words, SPCC/FRP facilities with past violations which are located in or near overburdened communities will likely be faced with increased inspections and scrutiny.

As to clean-ups in or near overburdened communities, EPA will, among other things, use CERCLA and RCRA authorities to force early remedial action at sites and expedite existing remedial actions. These goals could include early involvement of EPA Regional Counsel or DOJ when potentially responsible parties request extensions or miss deadlines.

EPA’s new focus and initiatives are targeted at facilities in or near overburdened communities. There is no clear definition of an overburdened community, which is a vague term that seems to be used interchangeably by EPA with “EJ areas,” “underserved community,” and “disadvantaged community.” Nevertheless, the term has been defined in past EJ publications to refer to minority, low income, tribal or indigenous populations or locations that potentially experience disproportionate environmental harms and risks. EPA uses EJSCREEN (found at www.epa.gov/ejscreen) to identify areas that may have higher environmental burdens.

EPA’s focus on enhanced enforcement in environmental justice areas will not appreciably change over the next several years. The question becomes how to proactively prepare for the inevitable inspections so as to minimize the potential for costly and burdensome enforcement actions. Several basic steps may be taken now to avoid potential future problems.

Reviewing EJScreen is an appropriate starting point. Populations within census blocks, communities, or distances from a facility may be analyzed based on demographics and eleven environmental indicators. Based on information posted on its web-site, EPA indicated that communities with an 80th percentile or higher for any of the EJ Indexes is a good starting point to conclude there may be some EJ concerns in that community. See www.epa.gov/environmentaljustice/learn-about-environmental-justice.

A facility in proximity to an overburdened community should internally audit compliance and conduct a review of its compliance history, including as set forth in EPA’s ECHO. The compliance review should identify past SPCC/FRP inspections, violations, and enforcement actions as EPA has specifically indicated that such history may trigger additional scrutiny. To the extent that any outstanding issues or violations are found, those should be corrected immediately. All compliance plans, such as the SPCC/FRP, should be updated to minimize emissions, releases, or spills and all regular inspections should be documented as required under those plans.

In short, facilities in proximity to overburdened or EJ communities are more likely to be inspected over the next few years. For these facilities, taking a few basic steps now to address potential non-compliance will assist in reducing the potential for future enforcement actions and penalties.

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