U.S. EPA – Next Generation Enforcement – Already Here With More Coming Soon

The 2016 budget focus for the United States Environmental Protection Agency (“U.S. EPA”) is on continued implementation of its “Next Generation” enforcement initiative, and this could mean big costs for manufacturers who choose to adapt their environmental compliance practices accordingly and big penalties for those who do not. Under this initiative, U.S. EPA intends to make a significant shift toward electronic reporting for most required environmental compliance reports, as well as dramatically increase the quality of this reporting—most significantly through the use of continuous, real-time monitoring for manufacturing and other regulated facilities. This increase in the quantity and quality of electronic data could easily lead to increased enforcement.

In general, U.S. EPA’s Next Generation enforcement initiative intends to boost environmental compliance by requiring, among other things, facilities to report electronically all emissions and discharge data, such as air pollutant emissions and wastewater discharges. The agency is also seeking to require advanced monitoring for these emissions, including the installation of small “fence line” (i.e., property boundary) monitors for air emissions and in-water monitors for wastewater and storm water discharges. These devices would allow U.S. EPA to obtain real-time environmental monitoring of a facility on a continuous or near-continuous basis, exponentially increasing the amount of data available for enforcement purposes and giving U.S. EPA the ability to use “big data” approaches to targeting enforcement efforts. Additional information regarding U.S. EPA’s Next Generation enforcement initiative can be found here.

Significantly, U.S. EPA is implementing the Next Generation enforcement initiative through both rulemaking efforts and enforcement actions and settlements. For example, in recent months the agency has required settling defendants to install fence-line monitoring for air quality to assure continuous compliance with ambient air quality standards. Data from this real-time monitoring was recently used as a basis for a U.S. EPA-Region 5 Notice of Violation. Additional detail regarding U.S. EPA’s use of such Next Generation tools in the settlement context is available here.

Manufacturing facilities need to be cognizant of U.S. EPA’s movement toward Next Generation enforcement and its emphasis on continuous monitoring and continuous compliance. Because both U.S. EPA and state environmental agencies previously required only a periodic demonstration of compliance with applicable environmental standards (e.g., air or water quality standards) for many environmental regulatory programs, regulated facilities need to adapt their auditing and internal compliance programs to assure continuous, and not just periodic, compliance. In addition, more so than ever, environmental monitoring protocols and methods need to be employed that assure the accuracy of reported data.

Facilities also need to watch the potential use of drones by regulators for compliance purposes, as the technology exists but is not yet being deployed. While many legal issues surround the use of drones, initiatives like U.S. EPA’s Next Generation enforcement effort suggest the use of drones for compliance and enforcement may not be far off.

Overall, U.S. EPA’s shift toward advanced reporting and enforcement methods dictates that manufacturing and other regulated facilities react accordingly. Given the proliferation of data that is sure to occur as a result of this shift, regulated facilities will want to ensure that they have taken the necessary steps to not only be in compliance with all applicable environmental laws, but also to provide data to U.S. EPA and state environmental agencies that consistently and accurately documents this compliance.