The regulated community can expect settlement negotiations stemming from U.S. Environmental Protection Agency (EPA) enforcement actions to become more complex and costly in the near future. The enforcement chief at EPA headquarters has directed agency staff to incorporate advanced monitoring, electronic reporting and independent third party auditing into agreements to resolve alleged environmental violations. AGC expects this to facilitate citizen oversight – and citizen enforcement – of environmental laws.
Specifically, EPA’s Office of Enforcement and Compliance Assurance recently issued a memorandum to EPA enforcement personnel directing them to use Next Generation Compliance (NextGen) tools in administrative and civil judicial enforcement settlements whenever appropriate. The specific tools highlighted in the EPA memorandum, and which bear watching by the regulated community, include:
- Advanced monitoring of pollutants on a real-time basis using emerging technology;
- Independent third party verification of compliance with settlement obligations;
- Electronic reporting of data in a searchable format; and
- Public accountability through data transparency and accessibility.
AGC has previously written articles about EPA’s NextGen initiative and what it may mean for the construction industry. For example, advanced monitoring and electronic reporting, when combined with real-time disclosure to neighbors or citizen groups, will certainly facilitate citizen oversight and citizen enforcement of environmental laws. AGC has cautioned EPA in written comments and at face-to-face meetings that while “transparency” of data can be helpful in some instances, it can also be abused or misinterpreted, and thus create confusion as to a facility’s compliance status. AGC also has expressed concern that NextGen does little to reward good behavior; it overlooks positive feedback as a driver of improved compliance.
As EPA’s operating budget continues to decline, AGC expects the agency to increasingly rely on technology advances (like electronic data reports) to identify environmental violation, rather than the traditional “boots on the ground” site inspections approach. To this end, EPA has touted its commitment to expand the sharing of data across all levels of government (federal, state and local) and with the public at large.
While we already have seen some use of some of these NextGen tools in different EPA regions, the memorandum recommends that they be incorporated into settlement agreements nationwide – through injunctive relief, mitigation measures, and supplemental environmental projects. EPA has provided a list of examples of what it considers to be Next Generation settlements.
For more information, please contact Leah Pilconis, Senior Environmental Advisor to AGC, at pilconisl@agc.org.