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Get Ready for a New Era of EPA Enforcement

By Eric Andreas

Since taking office, Environmental Protection Agency (EPA) Administrator Lisa Jackson has been fond of saying that “EPA is back on the job.”[1] This is reflected in the president’s proposed $10.5 billion budget for fiscal year (FY) 2010, the largest in EPA history. Out of that, $600 million is proposed for enforcement—again, the largest in EPA history. As Administrator Jackson testified before the Senate Environment and Public Works Committee in May 2009, the $600 million reflects “the President’s strong commitment to enforcing our nation’s environmental laws and ensur[ing] that EPA has the resources necessary to maintain a robust and effective criminal and civil enforcement program.”[2]


This renewed commitment is evidenced in the EPA’s January 4, 2010, announcement that it is proposing to nearly double its list of National Enforcement Priorities for FY 2011–2013.[3] The EPA sets these priorities every three years. They are selected according to the perceived degree of environmental impact, the level of significant noncompliance, and the appropriate federal role.[4]


Eight National Enforcement Priorities for FY 2008–2010 were set under the Bush administration. These were:


  1. Air Toxics
  2. New Source Review/Prevention of Significant Deterioration (NSR/PSD)
  3. Concentrated Animal Feeding Operations
  4. Municipal Combined Sewer and Sanitary Sewer Overflows
  5. Storm Water
  6. Mineral Processing
  7. Financial Responsibility
  8. Indian Country


For FY 2011–2013, the Obama EPA essentially has kept all of the Bush administration priorities, but added eight new ones. These are:


  1. Environmental Justice—Community-Based Approach
  2. Pesticides at Day-Care Facilities
  3. Worker Protection Standards
  4. Resource Extraction
  5. Resource Conservation and Recovery Act (RCRA) Enforcement
  6. Surface Impoundments
  7. Marine Debris
  8. Wetlands[5]


It is important to realize that the EPA’s near doubling of its enforcement priorities is not likely to lead to a dilution of effort by the agency if it is granted the historic enforcement budget it seeks. Instead, it might be wise for those sectors that find themselves in the EPA’s crosshairs beginning FY 2011, which starts October 1, 2010, to revisit their protocols for handling EPA inspections, consider conducting in-house compliance audits, and review their contingency plans for handling possible enforcement actions.


Environmental Justice
This is the first time that the EPA has ever listed environmental justice as a stand-alone enforcement priority. The EPA makes clear that its listing stems directly from Administrator Jackson’s “intent to address the burdens pollution has disproportionately placed on vulnerable populations, including children, communities of color, Native Americans, and the poor.”[6] In fact, environmental justice is provided as a rationale for all but two of the 15 priorities proposed by the EPA. By contrast, with the possible exception of pollution concerns in Indian Country, environmental justice was not once raised as a rationale for the FY 2008–2010 National Enforcement Priorities.


Because environmental-justice issues cut across so many sectors, the EPA plans on using a geographically based approach, whereby EPA regions identify disadvantaged communities, work with the community to identify environmental and health risks, and address threats over a defined time frame, using such tools as inspections, compliance assistance, and enforcement. The EPA has already put together a list of 10 environmental-justice “showcase” communities around the country where it is currently focusing on environmental-justice issues. These include Bridgeport, Connecticut; Staten Island, New York; Washington, D.C.; Jacksonville, Florida; Milwaukee, Wisconsin; Port Arthur, Texas; Kansas City, Missouri/Kansas City, Kansas; Salt Lake City, Utah; Port of Los Angeles/Port of Long Beach, California; and Yakima, Washington.[7]


Pesticides
Pesticide issues have not been proposed as an enforcement priority since 2000.[8] This time, the EPA is proposing to list two issues relating to pesticides: pesticide use at day-care facilities and worker-protection standards for agricultural chemicals.


Day-Care Facilities
The EPA’s concern regarding the use of pesticides at day-care facilities is spurred by the vulnerability of infants and children to pesticide exposure, and the results of a joint study between the Department of Housing and Urban Development and the Consumer Product Safety Commission that showed that at least one pesticide was detected in each center studied. What is interesting, however, is that the EPA acknowledges that it has not conducted sufficient inspections that would identify a pattern of noncompliance by facilities. Instead, the EPA is relying on anecdotal evidence of reported exposure incidents to state and local authorities. In an apparent effort to confirm what it suspects, the EPA intends to engage in inspections across the nation to detect violations and send a “strong message” to facility owners and pesticide applicators.


Worker-Protection Standards
The EPA’s worker-protection standards[9] apply to over 2.5 million workers in 600,000 agricultural establishments. These are workers who are involved in the production of crops, the mixing, loading, or application of pesticides, or both. Agricultural employers (e.g., growers) must comply with the worker-protection standards as specified on pesticide labels, and the EPA emphasizes that worker-protection standards are critical to assuring that farm workers are protected from occupational exposures.


A significant factor in the EPA’s rationale for listing this as a priority is that there are studies showing that farm-worker families, which are considered an environmental-justice community, have higher levels of pesticide exposure than non-farm-worker families have. This higher level of exposure is thought to occur as a result of farm workers taking residues home on their skin and clothing and because of worker proximity to pesticide-treated fields. The EPA also cites complaints by organizations that represent farm workers, alleging numerous instances of noncompliance and underreporting due to fears of retaliation, language barriers, and the mobile nature of the workforce.


While enforcement of the worker-protection standard is primarily delegated to the states, the EPA sees a role for itself in developing a targeted strategy for compliance, conducting targeted inspections with the states, and ultimately gaining deterrence through “aggressive pursuit of violators” in conjunction with the states.[10] Additionally, the EPA notes that it is currently revising the worker-protection standards to expand coverage for farm workers and their families and that it is also revising the worker-protection certification and training requirements.


Resource Extraction
The recent surge in natural-gas exploration and production, especially in the eastern United States, appears to be a large part of what has motivated the EPA to list this area as a priority. The EPA cites three specific areas of current concern. The first is mountaintop-removal mining for coal in Region 3, especially in West Virginia. The EPA states that mountaintop coal mining significantly contributes to environmental impairments, such as the disappearance of entire stream systems due to the deposition of overburden, and the degradation of water quality and drinking-water sources. Moreover, the EPA is concerned that 26 of the 28 mountaintop-mining sites in West Virginia could have environmental-justice implications.


The second area of concern is in Region 6. The EPA notes that since 2004 alone, over 12,000 gas wells have been drilled in the Barnett shale deposit in Texas. This has resulted in numerous complaints by affected communities, including increased air toxics, ozone, greenhouse gas emissions, and noise.


The third area is farther west in Region 8, which encompasses the intermountain region of the Rocky Mountains and six of the top 10-producing gas fields in the United States. The EPA reports that in this area, there has been an explosion of oil and gas development and leasing and that inspections at oil and gas facilities in Region 8 are causing air violations on Indian lands. Thus, like most of the EPA’s enforcement priorities for 2011–2013, this one is also driven at least in part by environmental-justice concerns.


Because of the need to balance energy needs of the country with its obligation to protect human health and the environment, the EPA is understandably caught in a difficult situation in listing this area as a priority. It is no wonder then that the EPA says it will first engage in compliance assistance “to help companies to understand their responsibilities for both energy and environmental needs,” before resorting to targeted enforcement.[11]


RCRA Enforcement
Under this priority, the EPA is focusing on the corrective-action program under the RCRA, which is the process for cleaning up hazardous waste. The EPA’s motive for listing this priority stems from two statistics. The first is that 30 percent of facilities requiring corrective action are in environmental-justice communities. The second is that there has been a marked slowdown from the 1990s in the issuance of corrective-action orders. As a result, the EPA has announced a goal of completing 95 percent of RCRA cleanups by 2020.


To implement this priority and move facilities forward in the cleanup process, the EPA intends to develop and implement a nationally consistent approach to RCRA corrective-action enforcement. As the EPA notes, however, corrective-action authority has been primarily delegated to the states. The EPA’s intent is thus to work with the states to develop an overall strategy to establish consistency in corrective-action enforcement, and the EPA envisions a potential role for itself in evaluating and tracking subsequent compliance with cleanup orders. The EPA states that as part of its strategy, it is likely to prioritize actions based on the facility’s environmental- and human-health risk, financial condition of the owner, and impact on environmental justice.


Surface Impoundments
This priority overlaps with enforcement under the RCRA, but is targeted specifically at those impoundments that are not, or allegedly are not, used for storage or disposal of hazardous waste. This would include, for example, impoundments used for wastewater treatment, and storm water and process overflows.


The EPA’s concern arises out of the fact that there are 18,000 surface-water impoundments in the country, and 90 percent, according to a 2001 study, are not correctly reporting chemicals of concern, such as volatile organic compounds, semi-volatile organic compounds, metals, and dioxins. The agency is also concerned that noncompliant impoundments might disproportionately affect environmental-justice communities. The EPA’s intent is to focus on chemical and allied products, petroleum products, and paper and allied products because, in addition to often using surface impoundments, they also generate hazardous waste.


Marine Debris
The EPA describes marine debris as a persistent problem in the oceans and coastal waters. Such debris comes from numerous sources including storm water, combined sewer overflows, vessels, and illegal dumping. The agency has been working on the issue of marine debris for over 20 years, but this is the first time it has been listed as a National Enforcement Priority.


While the EPA cites concerns of adverse impacts on aquatic ecosystems, it stresses instances where medical waste has washed up on beaches, resulting in billions in lost tourism revenue. This may in fact be the reason the EPA has elevated this issue as a national priority. The EPA anticipates using numerous statutes to enforce this issue, including the Clean Water Act; Marine Protection, Research, and Sanctuaries Act; Prevent Pollution from Ships Act; and the Marine Sanctuaries Act.


Wetlands
Wetlands enforcement has been in a state of uncertainty since the Supreme Court’s rulings in the Carabell and Rapanos cases in 2006, which caused considerable confusion regarding the federal government’s jurisdiction over certain wetlands.[12] Nevertheless, the EPA is determined to make a concerted effort on wetlands enforcement despite lingering jurisdictional uncertainty due to the important economic and environmental benefits of wetlands.


The EPA further proposes to take on this enforcement priority despite the Army Corps of Engineers’ primacy in the permitting process. To this end, the EPA remarks that it has the lead in enforcing flagrant violations against those who have not applied for a permit and that only New Jersey and Michigan have delegated authority under section 404. EPA’s not-too-subtle message here is that it alone has enforcement authority in the remaining 48 states in cases where an individual should have obtained a permit under section 404, but did not.


Conclusion
The EPA’s substantial increase in National Enforcement Priorities sends a clear signal that it is “back on the job.” As a result, those sectors subject to the EPA’s enforcement priorities for FY 2011–2013 should consider taking necessary precautions. Nevertheless, it still remains to be seen whether Congress will pass the president’s proposed budget later this year and give the EPA the money it needs to realize its ambitions.


Keywords: EPA, Lisa Jackson, national enforcement priorities, environmental law


Eric Andreas is a partner at Wiley Rein in Washington, D.C.


This article appears in the Spring 2010 issue of the Environmental Litigator, from the Environmental Litigation Committee.


 

Endnotes

  1. See, e.g., www.epa.gov/progress.
  2. Lisa Jackson, EPA Administrator, Testimony Before the S. Comm. on Env’t & Public Works, 111th Cong. 8 (May 12, 2009).
  3. 75 Fed. Reg. 146 (Jan. 4, 2010).
  4. Id. at 147.
  5. Information and fact sheets discussing each priority are available on the EPA’s website.
  6. EPA, Background Paper for Candidate National Enforcement Priority: Environmental Justice 1 (Jan. 2010).
  7. See www.epa.gov/environmentaljustice/grants/ej-showcase.html.
  8. See 65 Fed. Reg. 58273 (Sept. 28, 2000).
  9. See 40 C.F.R. Part 170 (2009).
  10. EPA, Background Paper for Candidate National Enforcement Priority: Worker Protection 3 (Jan. 2010).
  11. EPA, Background Paper for Candidate National Enforcement Priority: Energy/Mining Resource Extraction 2 (Jan. 2010).
  12. See Rapanos v. United States, 547 U.S. 715 (2006).

 
 
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