Transparent Electronic Reporting, Fewer EPA Resources May Ramp Up Citizen Involvement
The U.S. Environmental Protection Agency (EPA) plans to considerably scale back its enforcement presence over the next five years. While the agency still believes there is widespread non-compliance, budget cuts mean fewer dollars for compliance inspections and enforcement actions brought by the government. EPA is now looking to technology and citizen involvement to close this gap. EPA’s “Next Generation Compliance” initiative aims to shift the regulated community from paper to electronic reporting and to the use of advanced emissions monitoring. The apparent end goal is to empower the public to identify violations and enforce regulations.
EPA’s Reduced Enforcement Goals for 2014-2018
In a draft strategic plan for fiscal years 2014-2018, EPA stated that it would conduct about a third fewer compliance inspections and initiate approximately 40 percent fewer civil enforcement actions (down 23% from 2012 figures), as compared to recent years. Specifically, EPA is reducing its five-year cumulative inspection and evaluation goal from 105,000 inspections to 70,000 inspections. The agency expects to initiate fewer civil judicial and administrative enforcement cases, setting its initiation goal at 11,600 compared to an earlier 19,500, and conclude fewer cases, 10,000 compared to an earlier 19,000. Compare the FY 2014-2018 EPA Strategic Plan draft, available here, to the FY 2011-2015 EPA Strategic Plan, available here.
Although the agency expects to scale back its enforcement presence, it promises to maintain a strong presence at larger sites. However, EPA may not be able to pursue lower priority cases or inspect smaller facilities at past frequencies moving forward.
EPA’s National Enforcement Initiatives for the 2014-2016 term are the same as in 2011. The agency will continue to prioritize enforcement actions related to: stormwater pollution; air toxics; large sources of air pollution, such as refineries and coal-fired power plants; discharges of raw sewage; and assuring the energy extraction sector is in compliance with environmental laws.
Future Reliance on Technology
While EPA is not changing its longstanding targets for enforcement, it is changing its approach to enforcement. In recent interviews and news stories, Assistant Administrator for the Office of Enforcement and Compliance Assurance Cynthia Giles discussed EPA’s plans to use its “Next Generation Compliance” initiative to focus its enforcement efforts.
EPA has identified five components of Next Generation Compliance: updated regulations and permits to build in compliance; the use of advanced emissions/pollutant detection technology; electronic reporting requirements; increased transparence; and more innovative enforcement measures. “We are moving toward a world in which EPA, states, citizens, and industries will have real-time electronic information regarding environmental conditions, emissions and compliance,” EPA’s website states.
Electronic Reporting Rules
Though not a rule in and of itself, the guiding principles of the Next Generation Compliance program are sure to result in rules (e.g., electronic reporting) that will surface in 2014 and beyond.
EPA has already proposed the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule, which is working its way through the regulatory process. The rule would require electronic submission of all NPDES data to a central database, making the regulated communities’ compliance information easily accessible to all. The improved transparency, according to the EPA’s Giles, should also compel facilities to improve performance. However, AGC and others have raised concerns about the transparency and technical aspects of this initiative.
AGC wrote (here and here) about how EPA’s proposal would require all construction site operators covered by an NPDES permit (e.g., Construction General Permit or Multi-sector General Permit) to submit a variety of permit-related information electronically instead of using paper reports. The proposed e-reporting rule would make each company’s site-specific information - such as inspection and enforcement history, pollutant monitoring results, and other data required by permits - accessible to the public through EPA’s website. From EPA’s perspective, the value of electronic reporting is that it would simplify real-time data aggregation and analysis among EPA, states, and the public. AGC shared the construction industry’s concerns in a letter to EPA. These concerns include the quality and accuracy of data appearing in EPA’s publicly-available databases, the likelihood that such data will be misinterpreted or misconstrued, and the potential disclosure of confidential business information. “In our experience, the primary reason that certain groups have requested SWPPPs is to threaten citizen suits under the CWA for trivial paperwork or other inconsequential inconsistencies relating to how a facility describes versus implements a control measure,” AGC’s letter states.
Environmental groups, as well as enforcement authorities, are certain to make extensive use of the central databases of information that the agency plans to make available. The availability of information will empower communities to play an active role in compliance oversight and improve the performance of both the government and regulated entities, according to EPA.
For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.