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What Will Environmental Enforcement Look Like in the Future?

July 27, 2017

EPA Drafts OECA Outlook; AGC Continues to Push for Cooperative Approach

The U.S. Environmental Protection Agency (EPA) recently issued its draft “FY 2018-2019 National Program Manager (NPM) Guidance for the Office of Enforcement and Compliance Assurance.” The draft Office of Enforcement and Compliance Assurance (OECA) guidance suggests that EPA under Administrator Scott Pruitt is placing a stronger emphasis on state and local program enforcement, with federal enforcement priorities being directed towards non-delegated programs or state/local programs with recognized program deficiencies.  Notably, full implementation of the agency’s 2015 National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule (40 C.F.R. § 127) remains a key priority. 

The National Program Manager guidance is “a preliminary planning document and reflects the most current information available regarding specific programmatic commitments and activities” and “describes how the EPA plans to work with tribes, states, and local government agencies to ensure compliance with environmental laws.”  According to the document, looking ahead, OECA’s key programmatic activities will:

  • Strengthen EPA/state collaboration and state performance by developing new compliance tools and approaches to make programs more effective and efficient.
  • Prioritize EPA compliance monitoring activities – such as field inspections and data analysis tools – to focus on those programs that are not delegated to states and tribes, and provide monitoring in authorized programs to support and complement authorized state, tribal, and local government programs.
  • Address the risks posed by Superfund sites, implement the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enforcement program, and return Superfund sites to productive use.
  • Strategically focus EPA’s enforcement and compliance resources on its “National Enforcement Priorities” to address widespread noncompliance problems.
  • Implement NPDES permit electronic reporting, including: switching from existing paper reporting to e-reporting, resulting in increased efficiency and improved transparency of the NPDES program; create a new paradigm in which regulations and permits improve compliance via public accountability, self-monitoring, self-certification, electronic reporting and/or other innovative methods; and conducting comprehensive and coordinated permitting, compliance, and enforcement programs to improve state and EPA performance in protecting and improving water quality.  Click here for an AGC Fact Sheet on EPA’s NPDES Electronic Reporting Rule and how it will impact construction site operators.   

The FY 2018-2019 NPM Guidances for all of EPA’s program offices (water, air, land and emergency management, chemical safety and pollution prevention, etc.) are available online here – including agency contacts – and open for public comment until Aug. 4, 2017.

EPA’s Enforcement Budget

President Trump’s proposed budget for fiscal year (FY) 2018 entitled “A New Foundation for American Greatness” would fund EPA at $5.7 billion – a more than 30 percent decrease from the current funding of nearly eight billion. OECA’s budget would decrease by nearly 25 percent below current funding.  This decrease would reduce civil and criminal enforcement by 18 and 16.5 percent, respectively. EPA’s FY18 Budget in Brief provides more details on proposed budget allocations and priorities.  The President’s budget is certain to face steep opposition in Congress, which has until Sept. 30, 2017, to pass a budget for FY18, although this timeline will likely be extended using continuing resolutions. 

EPA Administrator Pruitt testified at a congressional hearing recently – explaining the policy basis for the proposed cut in EPA’s numbers (operating dollars and workforce).  He talked about a renewed emphasis on cooperative federalism and refocusing EPA’s activity on statutory requirements, thereby reducing spending on the agency’s voluntary and other non-core mission programs.  At the hearing, a senior Republican committee member said: “I can assure you, you are going to be the first EPA administrator that has come before this committee in eight years that actually gets more money than they asked for.”

Many are speculating that NGOs (non-governmental organizations like nonprofits) and ordinary citizens will step in and take a more active role in enforcing environmental laws/permits if federal EPA takes a step back – see related AGC article: “Widespread Concern: Something Must Be Done to Curb Citizen Suits.”

AGC Recommendations

AGC has shared recommendations with Congress and the new Administration on how to improve the future enforcement of environmental laws.  AGC has requested a meeting with EPA Administrator Pruitt to discuss the reforms below:

  • Criminal Prosecutions of Worker Safety and Environmental Law Violations - AGC recommends that the Attorney General withdraw this guidance and MOU and revisit the scope of this initiative.
  • Individual Accountability for Corporate Wrongdoing - AGC recommends that Attorney General withdraw this guidance.  AGC discussed its concerns with this policy at a recent meeting with the U.S. Secretary of Labor Alexander Acosta.
  • Citizen Enforcement Lawsuits - All federal environmental statutes, except pesticides act, allow “any citizen” to bring a “civil action on his own behalf” against “any person” who is alleged “to be in violation” of a standard or order issued under the statute.  AGC recommends a reasoned and measured approach to citizen suit reform to prevent misuse of environmental laws.
  • Next Generation Compliance/Enforcement - AGC recommends that the agency revisit and revise the implementation and transparency aspects of the NextGen Strategy.
  • Inspect and Correct: Cooperative Approach to Enforcement - AGC recommends that the agency develop reforms to help companies discover and promptly correct environmental problems. Ideas include: reintroducing a process/protocol for making a Voluntary Disclosure under EPA’s Small Business Compliance Policy; reintroduce Expedited Settlement Offer Policy under NPDES stormwater permit program; and expand “Right to Cure” protocol that's currently being used under Spill Prevention Control and Countermeasure (SPCC) Program.
  • Compliance Assistance - AGC recommends bringing back agency-industry partnership and recognition programs (e.g., Sector Strategies, Performance Track, C&D Recycling Partnership).  Widely used, construction-specific tools like the Construction Industry Compliance Assistance Center are a risk of losing all funding support from EPA.  A recent Environmental Council of States report finds that approximately half of all regional compliance assistance centers are underfunded or about to close.

For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.

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