Businesses work to operate in compliance with relevant laws and generally work to avoid — if possible — scrutiny from regulatory agencies. For many businesses, including those that devote considerable resources to meeting their environmental obligations, scrutiny in the form of on-site inspections; information requests from regulators; or even civil enforcement or criminal actions sometimes occur.
The US Environmental Protection Agency (EPA) recently released annual results for its environmental and compliance programs for Fiscal Year 2022. The announcement notes that EPA’s “focus was advancing environmental justice (EJ), rebuilding EPA’s national inspector corps, and working to mitigate the effects of climate change, particularly in communities overburdened by pollution.”
Highlights noted by EPA in its announcement:
- Fifty-six percent of on-site compliance inspections occurred in communities with paternal environmental justice concerns. Our recently published article on “what to expect” in the environmental space in 2023 discussed EPA’s goal to conduct more compliance inspections in environmentally overburdened communities, with a goal to move toward conducting 50% of inspections in EJ communities by 2023. (This increase is consistent with environmental justice appearing to guide many of EPA’s actions this year, as we have catalogued.)
- Similarly, EPA’s enforcement staff concluded “approximately 1,650 civil judicial and administrative cases” with over 44% of these cases rooted in environmentally overburdened communities, the highest percentage since EPA began tracking this issue.
- EPA achieved a 50% reduction of significant noncompliance among facilities permitted under the Clean Water Act.
Beyond the highlights, the annual report contains break-out sections on areas including compliance; civil enforcement; criminal enforcement; Superfund enforcement; federal facilities; and “emerging areas of focus” including climate change mitigation and PFAS contamination. The reports document the efforts EPA has made in 2022 comply with goals announced with its 2022-2026 Strategic Plan, which we summarized here.
The Biden Administration has consistently stated its commitment to a reinvigorated enforcement program, which takes into account EJ communities when directing enforcement resources. But presently, the administration’s nominee to lead the EPA Office of Enforcement and Compliance Assurance (OECA), David Uhlmann continues to await confirmation in the US Senate. The lack of a Senate-confirmed leader of OECA certainly hinders, to some degree, the Biden Administration’s abilities to meet its commitments in the enforcement space. Furthermore, administrative or judicial enforcement builds on “boots on the ground inspections” and information requests, so there is an inherent time lag built into the development of enforcement actions and the end result after an action comes to closure.
In any event, we can expect to see a ramping up of enforcement from this Administration over time, consistent with the Administration’s repeated pronouncements on enforcement efforts, including an increase in the number of Supplemental Environmental Projects (SEPs) as part of case resolutions now that the use of SEPs has been reinstated following their disallowance under the Trump Administration. (See our discussion of SEPs here and here.)