For the second time in as many weeks, the acting head of the EPA’s enforcement office has issued a memorandum (the “Memorandum”) outlining additional actions to advance the EPA’s environmental justice (“EJ”) goals. The Memorandum, dated July 1, 2021, focuses on cleanup obligations of hazardous substances. We previously covered the acting head’s June 21, 2021 memorandum, which addressed strengthening EJ through enhanced criminal enforcement. The latest Memorandum further expounds on specific strategies that the Biden administration’s EPA will employ to meet its commitment to EJ in the context of hazardous substances.
The Memorandum focuses on:
1. Promoting early and expedited cleanup actions by potentially responsible parties (“PRPs”),
2. Ensuring cleanup obligations are fulfilled by increasing oversight, and
3. Enhancing “enforcement instruments” and community engagement.
This Memorandum is part of a series of memoranda issued by the EPA on the topic of EJ enforcement.
Highlights of the Memorandum
Promoting early and expedited cleanup actions by potentially responsible parties
The Memorandum explains that “urgent risks to human health” may merit judicial action or other intervention by the EPA, including the use of CERCLA Section 106(a) and RCRA Section 7003 to proactively address actual or threatened releases of hazardous substances and other wastes. Under these authorities, the EPA is empowered to issue unilateral orders to PRPs, to take action if the PRP fails to comply with the order, and to seek judicial action to compel performance and recover penalties where there is an imminent and substantial endangerment to health or the environment.
The Memorandum directs EPA regions to use these means to address opportunities for preventative or interim relief in overburdened communities. In particular, the Memorandum authorizes EPA to use the above-mentioned CERCLA and RCRA sections to proactively address potential releases, prioritizes early enforcement efforts and early actions on units that most impact EJ communities, and promotes the issuance of orders for interim relief in conjunction with more comprehensive cleanup.
Picking up the pace of cleanup actions by responsible parties
The Memorandum sets forth a number of steps designed to expedite cleanups in EJ communities:
- Expediting focus on completing remedial design/remedial action (“RD/RA”) negotiations within a year (and encouraging bifurcation where necessary to meet this goal);
- Requiring earlier involvement by the Office of Regional Counsel when potentially responsible parties (“PRPs”) request extensions of deadlines, miss deadlines, or are out of compliance;
- Utilizing unilateral administrative orders to compel PRPs to perform response actions and/or provide resources when negotiations fail or do not result in a timely settlement;
- Encouraging an enforcement action review concerning PRP-lead sites that are designated as “human exposure not under control”;
- Quickly resolving disputes impacting cleanup work at federal facility National Priorities List (“NPL”) sites or operable units near EJ communities;
- Working with the Department of Justice to address situations where negotiation/cleanup delays are attributable to federal agencies (including the use of CERCLA Section 106 orders against agencies); and
- Issuing CERCLA Section 106 orders where cleanups are delayed.
Using enforcement instruments to lessen public health effects in EJ communities and strengthen enforcement
To lessen public health impacts on EJ communities, the Memorandum instructs enforcement personnel to:
- Engage EJ communities in the enforcement process;
- Include specific projects in settlements or agreements;
- Require the installation of “advanced monitoring equipment” to demonstrate compliance with remedial action objectives and make any data publicly available; and
- Require PRPs to publish schedules of compliance obligations and institutional controls.
The Memorandum encourages increased oversight of cleanup responses to ensure that compliance with things like remedial requirements in consent decrees and agreements, and institutional controls, are being implemented and monitored appropriately. The Memorandum also requires that enforcement officials evaluate whether remedies are having unintended impacts such as noise, odor, or traffic.
Increased community engagement
Finally, the Memorandum emphasizes community engagement by directing personnel to:
- Communicate with EJ communities in accessible ways and provide detailed information about sites, PRPs, obligations, enforcement tools, and benefits and results of work;
- Regularly update publicly available information such as Superfund Site Cleanup Fact Sheets;
- Participate in community engagement efforts that, where appropriate, are included in future negotiations with relevant PRPs;
- Work with PRPs responsible for community outreach to develop best practices for communication with EJ communities; and
- Coordinate with state enforcement officials.
The Memorandum is the latest action by the Biden administration indicating that facilities in the vicinity of EJ communities and/or facilities that have the potential to disproportionately affect the health and environment of such communities are likely to: (1) become enforcement targets; (2) face faster-paced enforcement; (3) receive harsher punishment; (4) be targeted for injunctive relief, such as EJ supplemental environmental projects and advanced monitoring; and (5) see increased community engagement and activity. As compared with EPA enforcement’s two previous EJ memoranda — which focus on civil and criminal enforcement and are thus constrained by the existence of particular violations and the Agency’s awareness of those violations — the priorities established in the Memorandum reflect a discretionary policy judgment to prioritize EJ-related considerations in cleanups, a judgment that could affect the nature and timing of cleanup decisions relatively quickly. That said, it remains to be seen how quickly EPA might implement this new policy, especially against the backdrop of a relatively slow CERCLA process.
Regulated entities should consider proactive steps to address EJ concerns, such as:
1. Identify Relevant EJ Communities: Identifying relevant EJ communities is the first, and arguably most important, step in tracking relevant environmental matters affecting EJ communities. EJSCREEN is a helpful and publicly available tool to identify the environmental and demographic information necessary to identify and track potential EJ matters. We note that some states, for example, California, have their own EJ tools, as well.
2. Plan community outreach: Identifying relevant community leaders and developing strategies for increased and effective EJ community outreach.
3. Consider developing proposals to address EJ concerns: Recognizing the EPA’s stated interest in expediting aspects of cleanups that affect EJ communities, it may be worth considering what role targeted early actions addressing EJ concerns could have in advancing a regulated entity’s approach at a particular cleanup site.
The EPA is expected to issue additional memoranda addressing EJ and enforcement.