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EPAs New Strategic Plan: Cuts in Enforcement While Promising Streamlined Methods of Compliance

Posted on Wed, Dec 04, 2013 @ 08:50 PM

David J. Schmittby David J. Schmitt

The  U.S. Environmental Protection Agency (“EPA”) recently released its“Draft FY 2014-2018 EPA Strategic Action Plan” (the “Plan”). Any parties interested in submitting comments need to do so by January 3, 2014.

  1. The Plan describes EPA’s five main strategic goals:
  2. Addressing climate change and improving air quality;
  3. Protecting America’s waters;
  4. Cleaning up communities and advancing sustainable development;
  5. Ensuring the safety of chemicals and preventing pollution; and
  6. Protecting human health and the environment by enforcing laws and assuring compliance.

The Plan also addresses four additional fundamental strategies that cut across all agency activities:

  1. Working toward a sustainable future;
  2. Working to make a visible difference in the communities;
  3. Launching a new era of State, tribal, local, and international partnerships; and
  4. Embracing EPA as a high-performing organization.

Within the Plan, each of these goals and strategies is discussed in great detail. For example, the goal of addressing climate change and improving air quality includes EPA’s priority goal to reduce greenhouse gas (“GHG”) emissions from new model vehicles and trucks by September 30, 2015.  This goal would potentially result in reducing GHG emissions by 6 billion tons and reducing oil consumption by about 12 billion barrels over the lifetime of the vehicles.  As another example, the goal of cleaning up communities and advancing sustainable development includes the benchmark of having 18,970 additional contaminated sites cleaned up and made available for use by 2015.  

Importantly however, the Plan also confirms that EPA is envisioning far fewer enforcement activities over the next five years.  Some primary examples of EPA’s reduced enforcement efforts going forward include:

  • Conducting only 70,000 federal inspections and evaluations by 2018, when 105,000 such inspections and evaluations had been conducted on average per year between FY 2005 and 2009;
  • Initiating only 11,600 enforcement cases by 2018, when 19,500 enforcement cases had been initiated on average per year between FY 2005 and 2009; and
  • Concluding only 10,000 enforcement cases by 2018, when 19,000 enforcement cases were concluded on average per year between FY 2005 and 2009.

EPA states in its Plan that its objective is to: “Pursue vigorous civil and criminal enforcement that targets the most serious water, air, and chemical hazards in communities to achieve compliance.”  EPA believes that addressing  the worst polluters first in identified sectors will result in less pollution, as well as fewer enforcement actions over time.  

Additionally, throughout the Plan, EPA stresses its intention to “modernize” how it functions. As the primary example, EPA envisions the use of “Next Generation Compliance” strategies and tools to improve compliance while reducing pollution.  

This Next Generation Compliance includes:

  1. Designing regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes;
  2. Using and promoting advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see quantified pollutant discharges, environmental conditions, and noncompliance;
  3. Shifting toward electronic reporting by regulated entities so that EPA has more accurate, complete, and timely information on pollution sources, pollution, and compliance, saving time and money while improving effectiveness and public transparency;
  4. Expanding transparency by making the information that EPA has today more accessible, and making new information obtained from advanced emissions monitoring and electronic reporting more readily available to the public; and
  5. Developing and using innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance. 

In discussing Next Generation Compliance EPA freely admits, “. . . [W]e are not there yet . . . it will take years to fully implement this transition.”

Tags: Environmental Protection Agency, EPA

USEPA Adjusts Environmental Civil Penalties Upward for Inflation

Posted on Thu, Nov 14, 2013 @ 01:56 PM

David J. Schmittby David J. Schmitt

Inflation hits everyone in their bank accounts on a regular basis. Just as the government periodically makes Cost-of-Living Adjustments (COLA) to Social Security and other benefits to account for inflation, so too does USEPA periodically adjust environmental civil penalties.

This is not just random cruelty by USEPA. The Federal Civil Penalties Inflation Adjustment Act of 1990 (28 USC 2461), as amended by the Debt Collection Improvement Act of 1996 (31 USC 3701), requires the agency to review and adjust civil penalties at least every four years. The purpose of the adjustment is to both maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

The calculations involved include complicated analyses of the Consumer Price Index for all urban consumers (CPI-U) since the last adjustment, the raw inflation numbers, and several different rounding rules. For any true accounting wonks out there, the full calculation formula is included in the Federal Register Notice: http://www.gpo.gov/fdsys/pkg/FR-2013-11-06/pdf/2013-26648.pdf

So what is the bottom line impact of all of this?

First of all, the increased penalties will become effective on December 6, 2013.

Because of the rounding rules, a majority of environmental civil penalties remain the same. However, several individual penalties are increasing substantially and are worthy of note.

For example, the statutory maximum administrative penalty amounts that may be imposed under the Clean Air Act (CAA) §113(d)(1), 42 USC 7413(d)(1) and CAA § 205(C)(1), 42 USC 7524(c)(1) are increasing from $295,000 to $320,000.

Similarly, administrative penalties are being increased under the Emergency Planning and Community Right To Know Act (EPCRA), 42 USC 11045(b)(2) from $107,500 to $117, 500. This particular example may have an impact on those companies involved in the fracking boom taking place in eastern Ohio and neighboring states.

U.S. EPA recently confirmed that Ohio’s statutes governing the disclosure of the contents of fracking fluids, do not trump EPCRA. This means that going forward the oil and gas industry will have to file reports disclosing the contents of fracking fluids with the State Emergency Response Commission. The deadline for filing this information is now December 15, 2013. Failure to timely file the reports is one of the violations covered by the increased penalties.

Increases in administrative penalties are also slated under CERCLA (the Superfund Law), the Clean Water Act, and the Safe Drinking Water Act.

The attorneys at Cors & Bassett can answer any questions companies may have regarding any of these pending increases and how these statutes apply to you.

Tags: Environmental Protection Agency, EPA

EPA May Seek to Expand Its Clean Water Act Jurisdiction

Posted on Mon, Nov 11, 2013 @ 09:44 AM

David J. Schmittby David J. Schmitt

On September 17, 2013, the United States Environmental Protection Agency (“EPA”) released a draft scientific study that links all streams (including intermittent and ephemeral streams), as well as associated wetlands with larger downstream navigable waters that are currently under the agency’s jurisdiction.

The draft study titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” concludes that there is ample evidence that

“All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported. Headwater streams (headwaters) are the most abundant stream type in most river networks, and supply most of the water in rivers.”

While this may seem like an esoteric ivory tower topic, it may have a large real world impact. Currently, the jurisdiction (and permitting authority) of the EPA and Army Corps of Engineers (“COE”) extends only to traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable, but relatively permanent tributaries of navigable waters that flow year-round or have continuous flow at least three months of the year, and wetlands that directly abut such tributaries.

The EPA commented that the draft study provides the first comprehensive link between headwater streams, which are the most abundant type of streams in the U.S. and downstream navigable waters. The study, now being reviewed by the EPA Science Advisory Board, will serve as the scientific basis for a new rule developed jointly by the EPA and COE to clarify Clean Water Act jurisdiction. Based on the study’s conclusions, the EPA and COE could propose bringing all intermittent and ephemeral streams and all wetlands in flood plains and riparian areas, including those that abut intermittent and ephemeral streams, under federal protection.

If this occurs, it will dramatically enlarge EPA’s and COE’s jurisdiction and permitting authority and could lead to a large increase in the number of construction and other projects required to obtain CWA permits prior to working in these areas.

Companies in the industrial and residential construction sectors, as well as any businesses which anticipate any new construction or site modification activities in the coming years stand the greatest chance of being impacted. Cors & Bassett will continue to monitor the development of the coming proposed rule and will keep its clients abreast of the latest information.

The study itself may be found at: http://tinyurl.com/ldn73to

Tags: Environmental Protection Agency, EPA, Clean Water Act, CWA