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The EPA has made public an April 30 memo from the acting
assistant administrator for the Office of Enforcement and
Compliance Assurance (OECA) to the national and regional
enforcement managers that signals clear and specific enforcement
policy expectations, at least in the stressed communities and
environmental justice context (referred to herein as the EJ
enforcement memo or the memo). And while the specific subject of
the memo is enforcement’s approach in support of greater
environmental equity, there are multiple and notable references to
overall enforcement policy direction.

The memo is “assuming current resources” and does not
contain bold new initiatives, although there are references to
planned focus on environmental justice in connection with
“national initiatives” and a reference to the prospect
for use of “additional resources” in the community
involvement context. The April 30 memo is very much a “what we
can do right now” agenda, but goes into the “hows”
of enforcement in ways that almost certainly point to future
approaches in these areas at EPA. The memo is available here.

This summary discusses the key developments in the memo.

More and More Comprehensive, Targeted Inspections

The memo starts with an expectation that EPA field personnel
will evaluate, target, and inspect facilities that present the
greatest opportunity to address pollution impacts, especially in
stressed communities. While acknowledging the limitations imposed
by the COVID-19 pandemic and touting the continued “use of
offsite compliance monitoring tools” like information
requests, the clear message is that well-designed and planned
inspections are expected to increase in number and rigor
particularly in traditionally overburdened communities.

Emphasis on Early and Fulsome Injunctive Relief, with a Renewed
Enthusiasm for “Next Generation” Tools

In addition to an increased virtual and physical enforcement
presence, the memo places strong emphasis on the use of enforcement
to achieve results in communities where violations are contributing
or have contributed to adverse impacts. It follows closely on the
heels of a similar memo dated April 26, 2021: Using All Appropriate
Injunctive Relief Tools in Civil Enforcement Settlements. The April
26 memo (not specific to the environmental justice context) in
effect re-embraces the use of such injunctive relief as fence line
monitoring (as in regularly sampling for environmental impacts at a
facility’s boundary), third-party oversight of comprehensive
corporate compliance programs, and other “next
generation” approaches articulated in a January 8, 2015,
policy. The April 26 memo also supersedes an April 3, 2018, memo
that had expressly deemphasized this type of injunctive relief and
had superseded the 2015 policy. The Appropriate Use of Compliance
Tools in Civil Enforcement Settlements Memo is provided here.

Taken together, these documents clearly indicate an expectation
that EPA enforcement case teams will likely seek broad and creative
injunctive relief in settlements, and particularly in cases
involving adverse impacts on stressed communities, with a keen eye
toward the use of creative solutions designed to make a real life
impact on human health and the environment in these
communities.

Expectations for Civil Penalties

While there is only one reference to civil penalties in the EJ
enforcement memo, the reference is clear and unqualified.
Enforcement teams are expected to “seek penalties.” While
the EPA over the last few years has not clearly stated major new
policies relating to penalties in civil enforcement, as recently as
October 19, 2020, the EPA’s assistant administrator for OECA
was quoted as saying, “… at one end are persons who are
trying to comply but need help understanding. For those we …
forego penalties. At the other end are persons who violate the law
despite knowing ….”

It seems likely that the express, unqualified reference to
seeking civil penalties in the April 30 memo represents a clear
embrace of classic deterrence-based use of statutory penalty tools,
without a separate approach of providing penalty relief for the
cooperative but uniformed member of the regulated community.
Therefore, parties found to be in violation should expect that the
EPA will seek robust penalties as permitted by law.

Focus on Mitigation and Potential for Supplemental
Environmental Projects

Beyond classic injunctive relief to promote compliance, the EJ
memo encourages requirements that redress the harms caused by
violations. This can be achieved through injunctive relief or
administrative orders providing for the mitigation of the
violations or Supplemental Environmental Projects (SEPs) which are
projects that, as part of settlement, EPA will provide some penalty
relief for all or some of the cost of a project voluntarily
undertaken by the violator which has a general nexus to the
violations at issue.

While mitigation relief has not been constrained through policy,
the use of SEPs previously was halted in judicial cases by
determination of the Department of Justice.

The Department of Justice, on February 4, 2021, formally
rescinded several policies relating to environmental enforcement,
including the March 12, 2020, policy effectively halting SEPs in
civil settlements with private defendants. However, the fate of the
December 16, 2020, DOJ rule on the subject is not yet resolved. The
December 16, 2020, DOJ rule effectively sought to outlaw SEPs both
as a matter of constitutional law on the grounds that Congress, not
the executive branch, has the power to appropriate funds. In
addition, DOJ took this action based on the Miscellaneous Receipts
Act that, according to critics of SEPs, requires every federal
penalty dollar must deposited to the Department of Treasury and not
diverted to voluntary environmental projects. Because the
government’s position on SEPs remains open, the EJ enforcement
memo simply expresses hope for the availability of such tools in
judicial cases. While the official approach to SEPs remains in
limbo, we expect that the EPA will seek to incorporate meaningful
environmental outcomes via the concept of mitigating the harm of
the violations — an approach that is provided for in the law
and does not run up against the same potential legal hurdles of
SEPs — in the short term. The DOJ rule on SEPs is available here.

State Oversight and Approaches to
“Co-Regulators”

In yet another policy area where the EJ enforcement memo may
signal broader policy direction, the April 30 memo addresses
approaches to state (and other co-regulators) enforcement actions.
Specifically, the memo says “If there is a situation where a
community’s health may be impacted by noncompliance, and our
co-regulator is not taking timely and appropriate action, we should
not hesitate to step in.” While this is hardly a particularly
aggressive approach to the so-called “overfiling”
situations, it may be significant that the memo expressly distances
itself from any inconsistency contained in OECA’s July 11,
2019, Guidance Enhancing Effective Partnerships Between
the EPA and the States in Civil Enforcement and Compliance
Assurance Work
. That memo refers to a policy of “general
deference” to State enforcement decision-making. Certainly,
the EJ enforcement memo sends a signal to state and local
environmental regulators that the EPA will be more likely to
intervene in a situation in an underserved community to the extent
that the state or local approach to enforcement is materially
lacking in penalty and/or corrective action.

Higher Profile and Enhanced Communication

The EJ enforcement memo does not break new ground on community
outreach and engagement, noting instead the existing communications
framework for cleanup programs and a hope that new resources could
permit similar mechanisms for other types of enforcement.
Interestingly, it touts the use of press communications and
releases. It notes the public availability of considerable
enforcement data and generally encourages proactive citizen
assistance for the use of available relevant data bases.

Conclusion

As the EPA continues to implement its enforcement
responsibilities while integrating its political leadership and
reflecting the administrator’s priorities, expect increasingly
clear indications of how, when, and why EPA will conduct
enforcement and compliance activities. The April 30 EJ enforcement
memo, in context with other recent developments, gives an early
look at how key enforcement policy directions are likely to go. And
it will continue to be smart to stay ahead of EPA enforcement
through sound corporate compliance programs, self-compliance audit
and correction programs and, where appropriate, self-disclosure to
EPA/state regulators to mitigate the risk of penalties. While these
concepts are valuable in any context, companies with operations in
areas that the agency may consider to be of environmental justice
concern (which can be determined using EPA screening tools) should
consider expediting such actions as they prepare for an
EPA-signaled increase in federal, state, and local enforcement
oversight. At present, the EPA utilizes its EJ Screen tool to
determine which areas may be disproportionately impacted by adverse
environmental conditions and uncorrected violations. The EPA Screen
tool is available here. In addition to the Biden
administration’s express focus on environmental justice,
certain states have or soon may seek to address these concerns. For
example, in October, New Jersey passed a wide-sweeping law
incorporating environmental justice into environmental permitting
process and decisions. See Cozen O’Connor’s prior alert on
this New Jersey development here. As the Biden administration continues to
emphasize action to address environmental concerns in underserved
communities, we can expect to see additional federal guidance and
even sharper state focus on addressing environmental
disparities.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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