Although not new, environmental justice (EJ) issues have played a prominent role in the EPA’s agenda under new Administrator Michael Regan. In a recent message to EPA employees, Administrator Regan instructed all EPA offices to integrate environmental justice considerations into their plans and activities. The EPA further demonstrated its commitment to EJ by issuing a memorandum directing enforcement staffers to strengthen enforcement efforts in EJ communities.
The April 30, 2021, memo lays out three enforcement program goals designed to advance environmental justice. These goals include: (1) increasing the number of facility inspections in EJ communities; (2) resolving violations in EJ communities using remedies that provide tangible benefits for the community; and (3) improving engagement with EJ communities on enforcement cases that most directly impact them.
These measures are part of the EPA’s response to Executive Order 14008 (Jan. 27, 2021) and the Biden Administration’s promised focus on environmental justice. For the regulated community, these new goals will likely mean greater scrutiny on facility operations and activities as well as greater complexity (and higher costs) in negotiating remedies for noncompliance.
While recognizing current constraints on the Agency’s ability to conduct in-person facility inspections, the memo directs staff to increase inspections in areas that most seriously threaten EJ communities. Historically, the EPA has identified (1) lead contamination, (2) drinking water, (3) air quality, and (4) hazardous waste sites as the most significant national EJ challenges. It can be expected that inspections will continue to target these key areas and the frequency and diligence of these inspections will increase.
The memo further directs EPA staff to “think creatively” in proposing remedies for noncompliance, including use of “early and innovative relief” such as issuing administrative orders, seeking injunctive relief or requiring installation of fence-line monitoring and transparency tools. Additionally, the memo urges staff to seek remedies that will mitigate past impacts from pollution, including restitution for victims of environmental crimes. Notably, the memo expresses a desire to resume and expand use of supplemental environmental projects (SEPs). The Trump Administration’s rule limiting the use of SEPs is currently under review by the Department of Justice.
In the event of noncompliance, facilities operating in EJ areas can expect EPA to increase the use of community engagement tools such as press releases and public meetings, including community involvement in the development of remedial action or clean-up plans. Additionally, EPA plans to increase awareness of the availability of database information that will allow community members to search for information on facilities, including compliance and enforcement history information. Such action is likely to substantially increase public interest in (and potentially opposition to) facility operations.
As a first step, facility personnel should determine whether their facility lies within an area identified or recognized by EPA as an EJ community. The EPA’s Environmental Justice Screening and Mapping Tool (EJSCREEN) is a publicly-available tool that combines environmental and demographic data and can assist in determining whether a facility is located within or near an EJ area.
The regulated community can prepare for potential increases in inspections and enforcement action by considering the following steps:
As the Biden Administration continues to implement its policy agenda, EPA’s focus on EJ issues is likely to sharpen. Regulated facilities, especially those located in EJ communities, should work toward identifying and correcting potential violations now to prevent potentially costly and time-consuming enforcement action.
If you have questions regarding this article or environmental enforcement actions generally, please contact Sara Chamberlain or Ryan Russell Kemper in Thompson Coburn’s Environmental practice area.
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