backUSEPA FY2022 Enforcement and Compliance Results Highlight Environmental Justice
The annual results of the agency’s enforcement and compliance efforts repeatedly discussed Environmental Justice (EJ), touting general trends and specific enforcement actions related to potential communities of concern. The EPA concluded approximately 1,650 civil judicial and administrative cases during the year, with over 44% targeting facilities in potential EJ areas. During FY2022, 56% of on-site inspections were conducted in potential EJ areas. The EPA also tracks the estimated value of the administrative and injunctive relief; the administrative and civil judicial penalties assessed; and the estimated pollutants reduced, treated, or eliminated in potential EJ areas of concern.
Last year’s EJ-related civil enforcement actions included the first-of-its-kind settlement under the Coal Combustions Residuals Program with a power station in Pueblo, Colorado; Clean Water Act settlements in two overburdened communities; a monetary settlement and agreement with an oil and gas company to cut flaring in fence-line communities in Texas; and, the largest Emergency Planning and Community Right-to-Know Act penalty following Toxic Release Inventory violations in vulnerable or overburdened communities.
Additionally, the criminal enforcement program recorded multiple sentences for actions in communities with potential environmental justice concerns. They included sentences against two individuals and their company, including prison terms, for crimes including knowing violations of RCRA following an explosion that killed two; an individual sentenced to prison for tampering with monitoring equipment, unlawful discharge of industrial waters, and conspiracy; and two individuals sentenced to prison for conspiracy to violate the Clean Air Act.
EPA’s reporting on their actions during FY2022 indicates Environmental Justice will remain a major focus in the coming years.
Environmental Justice in Air Permitting
EPA’s Office of Air and Radiation (“OAR”) recently issued eight Principles for Addressing Environmental Justice Concerns in Air Permitting (“Principles”) for the consideration of environmental justice in Clean Air Act (“CAA”) permitting decisions. Like other recent EPA environmental justice guidance, the Principles do not impose legally binding requirements. Instead, OAR characterizes them as “an interim operating framework for identifying, analyzing, and addressing environmental justice” and Civil Rights in CAA permitting.
Building off of (and frequently referencing) EPA’s Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions, the Principles encourage EPA regions to: (1) identify communities with potential environmental justice concerns, for example, by using EJScreen; (2) engage early in the permitting process to promote meaningful participation by, and fair treatment of, environmental justice communities; (3) enhance the affected community’s involvement throughout the permitting process; (4) conduct a “fit for purpose” environmental justice analysis to determine if a permitting action may disproportionately impact an environmental justice community; (5) minimize and mitigate disproportionate negative and cumulative impacts; (6) provide technical support to the permitting authority; (7) enhance transparency in the permitting process; and (8) build capacity with stakeholders, affected communities, and tribal, state, and local regulatory partners.
USEPA Releases a Cumulative Impacts Addendum to its Environmental Justice Tool Kit
On January 11, 2023, EPA’s Office of the General Counsel released a Cumulative Impacts Addendum (“Addendum”) to its May 2022 Legal Tools To Advance Environmental Justice, providing EPA and its tribal, state, and local partners a compilation of legal authorities to address cumulative impacts affecting environmental justice communities. In doing so, it reiterates the definition of “cumulative impacts” developed by EPA’s Office of Research and Development: the totality of exposures to combinations of chemical and non-chemical stressors (e.g., economy, community, home, school, demographics, safety) and their effects on public health and welfare. EPA noted that the Addendum is not comprehensive, nor does it prescribe when or how to address cumulative impacts. But it is a significant step in an evolving set of EPA regulatory interpretations to address cumulative impacts in various exposure scenarios (e.g., air emissions, spills, etc.) affecting environmental justice communities. You can read more about the Addendum here.
USEPA and California Environmental Agencies Release a 2023 EJ Enforcement Action Plan
On September 10, 2021, EPA Region 9 and California EPA (CalEPA) entered into a Memorandum of Understanding (MOU) on Collaborative Efforts on Enforcement and Compliance Assurance in Overburdened Communities. Implementing this MOU, in January 2023, USEPA and CalEPA released their 2023 Environmental Justice Enforcement Action Plan, which covers multiple agencies within CalEPA, including the California Water Boards, Department of Toxic Substances Control, Air Resources Board and Office of Environmental Health Hazard Assessment.
The 2023 Action Plan creates a joint Rapid Response Task Force and establishes a “coordinated multi-agency enforcement and compliance assurance approach” to address selected environmental releases or issues where there is “a pressing environmental need and/or community concerns.” Similarly, the Action Plan sets out a process for developing coordinated multi-agency enforcement tools, including joint inspection best practices, building staff capacity and communication between federal and state agencies, and developing partnering protocols where one agency may be “particularly well suited to lead a collaborative effort” in overburdened communities. The Action plan emphasizes that when EPA and CalEPA and its boards, departments and offices enter into enforcement negotiations, “it is imperative that the agencies seek appropriate corrective actions and penalties, where appropriate,” and that corrective action “should account for community concerns while addressing statutory noncompliance.”
This continued joint agency effort demonstrates that companies in California should expect increased federal and state scrutiny in overburdened EJ communities and coordinated agency efforts to enforce environmental laws and regulations and exact penalties when significant environmental issues arise.