In response to President Biden's executive order requiring all federal agencies to embed equity into their programs and services, EPA Administrator Michael Regan 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 and criminal enforcement in communities with environmental justice concerns.
These internal memos are general in nature but do 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 to minimize potential risks from ongoing or historic pollution in or near overburdened communities.
EPA will increase the number of inspections in overburdened communities; resolve noncompliance using remedies with tangible benefits to that community, such as environmental projects, preventing further pollution, or fence-line monitoring; and increasing engagement about enforcement cases with overburdened communities. EPA also announced in December 2021 that it will analyze compliance patterns of Spill Prevention, Control, and Countermeasure (SPCC) and Facility Response Plan (FRP) facilities in overburdened communities and identify locations that are more likely noncompliant in order to focus future inspections and compliance efforts on these areas. In other words, SPCC/FRP facilities with past violations that are located in or near overburdened communities will likely be faced with increased inspections and scrutiny.
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 with "environmental justice (EJ) areas," "underserved community" and "disadvantaged community." Nevertheless, the term has been defined in past EJ publications to refer to minority, low-income, or tribal or indigenous populations or locations that potentially experience disproportionate environmental harms and risks. EPA uses EJSCREEN, an EJ mapping and screening tool, to identify areas that may have higher environmental burdens.
EPA's focus on enhanced enforcement in EJ 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 11 environmental indicators. EPA has 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.
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 Enforcement and Compliance History Online website. The compliance review should identify past SPCC/FRP inspections, violations and enforcement actions. 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 noncompliance will assist in reducing the potential for future enforcement actions and penalties.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement with the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.