Environmental Law UpdateEnvironmental Law Update Editor: Rafe Petersen, Holland & Knight LLP, 2099 Pennsylvania Avenue, N.W., Suite 100, Washington, DC 20006-6801, rafe.petersen@hklaw.com.

Probate & Property Magazine, March/April 2010, Vol. 24, No. 2

Environmental Law Update

Environmental Law Update provides information on developments in environmental law as it applies to property, probate, and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

EPA Will Vigorously Enforce All Environmental Laws

The U.S. Environmental Protection Agency (EPA) under Administrator Lisa Jackson has made clear that the agency will recommit itself to vigorous enforcement of a wide spectrum of environmental laws. In January 2010, EPA announced that it will focus on 15 priority areas for the next several years, including new areas such as environmental justice, marine debris, and surface impoundments used to treat or store a variety of liquid and solid waste. Coming on the heels of the fall 2009 announcement of enhanced enforcement of the Clean Water Act, it is clear that the regulated community must anticipate not only more stringent regulatory requirements but also enhanced scrutiny of operations.

Clean Water Act Enforcement Initiative

Since becoming EPA administrator in January 2009, Lisa Jackson has made clear the agency's intent to increase enforcement efforts related to the Clean Water Act. In a memo to EPA staff dated July 2, 2009, Administrator Jackson announced that the agency will pursue significantly enhanced Clean Water Act enforcement both through its programs and through the programs administered by the states. In the memo, Administrator Jackson stated that EPA "need[s] to raise the bar for clean water enforcement performance. We must make sure that strong and effective action is taken when serious violations of law threaten water quality, and we must boost EPA's enforcement presence against serious violators." Further, "we need to move EPA's information technology into the 21st century. We need to transform EPA to be not only a collector and disseminator of information but an analytical resource that can present information in a form that is easily understood and useable by the public. We have seen that when information is made public, it can be a powerful tool to help improve the environment directly." Administrator Jackson directed the agency to examine its Clean Water Act enforcement program and report back in October with an action plan to strengthen and improve enforcement efforts. Memorandum from Administrator Jackson: Improving Water Quality Transparency and Effective Enforcement of Clean Water Act Requirements (July 2, 2009), available at www.epa.gov/compliance/data/results/performance/cwa/jackson-ltr-cwa-enf.html.

On the basis of this foundation, in October 2009, EPA published the Clean Water Act Enforcement Action Plan (Oct. 15, 2009) and announced its plans for "revamping enforcement of clean water laws." Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, Clean Water Act Enforcement Action Plan (Oct. 15, 2009), www.epa.gov/compliance/civil/cwa/actionplan/actionplan101409.pdf. Stressing the facts that many of the nation's waters fail to meet water quality standards and that new threats to drinking water sources are emerging, the Action Plan describes three major themes and identifies "key actions" the EPA will take to achieve its goals.

EPA's first theme is targeting enforcement to the "most important" water pollution problems. Stressing the notion that previous water enforcement focused mostly on pollution from the biggest individual sources, such as factories and sewage treatment plants, EPA indicated there are "significant new threats to water quality." The Action Plan states that "[m]any of the nation's waters are not meeting water quality standards, and the threat to drinking water sources is growing." EPA explains that the regulated universe has expanded to nearly one million point sources that are far more dispersed, such as animal feeding operations and stormwater runoff. Stating that it will work alongside the states, EPA states that possible responses to such new challenges "might include enforcement actions, fixes to unclear or problematic regulations, or permit modification or reissuance to be more protective of water quality." Meanwhile, EPA will "intensify vigorous civil and criminal enforcement against traditional end-of-pipe pollution." Top priorities include: Combined Sewer Overflows (CSO), animal waste, stormwater runoff, clean drinking water, and water bodies of local importance (such as Tampa Bay and Chesapeake Bay).

EPA's second theme is to strengthen oversight of the states. The Action Plan states that although many states have strong water quality protection and enforcement programs, "state compliance and enforcement vigor is uneven." Emphasizing the need to level the playing field in terms of businesses that do comply with the law, and also for citizens who are not provided equal protection, EPA states that it will mandate that states protect water quality and consistently apply the law by issuing protective permits and by pursuing vigorous enforcement. To achieve this goal, EPA will more clearly articulate where the bar is for acceptable state programs, and consistently hold states—and EPA where it implements the law—accountable. The Action Plan indicates that if states are not meeting these expectations, EPA will reject permits and step in to bring enforcement against serious violators.

EPA's final theme is improving transparency and accountability. EPA stresses that the public "has a right to know what the threats are to water quality, where violations are occurring, and what [EPA is] doing about them." EPA believes that public awareness improves performance of regulated interests and that the general public should know "what the government knows" in order to act as watchdogs. Toward these ends, EPA will require reports to be submitted electronically. Moreover, criminal enforcement will be increased and "high impact" cases (seriously adverse human or natural resource impacts) will be targeted. Any pattern of national noncompliance by corporate entities will have a high priority.

EPA's Three-Year Plan

Every three years EPA sets national enforcement priorities to focus resources toward what the agency considers to be the most significant environmental problems and human health challenges as identified by EPA staff, the states, tribes, and the public. In setting its priorities for the relevant three-year period, EPA considers the following factors:

  • Can significant environmental benefits be gained, or risk to human health or the environment be reduced, through focused EPA action?
  • Are there identifiable and important patterns of environmental law violations?
  • Are the environmental and human health risks or the patterns of noncompliance sufficient in scope and scale (that is, occur nation-wide) such that EPA is best suited to take action?

In January 2010, EPA announced the candidates being considered for national priorities for FY 2011–13. Although not in any way binding, the enforcement priorities list offers good insight into EPA's mindset and strategy. Key factors likely to play into consideration for the eventual enforcement focus are the level of impact, the seriousness of the violation, and the need for federal involvement.

The following are the priority candidates: air toxics, concentrated animal feeding operations, environmental justice, Indian country drinking water, marine debris, mineral processing, municipal infrastructure, new source review/prevention of significant deterioration, Resource Conservation and Recovery Act (RCRA) enforcement, Resource Conservation and Recovery Act (RCRA) financial assurance, resource extraction, pesticides at day-care facilities, surface impoundments, wetlands, and worker protection standards. Although many of these issues are the "usual suspects" (for example, stormwater enforcement has gotten considerable attention over the past several years), others are new. For example, marine debris and pesticides in the workplace (and day-care centers) will face new scrutiny. In addition, EPA is proposing a new national effort to target violations in wetlands, particularly of discharge of dredge and fill material under section 404 of the Clean Water Act. EPA cites to compliance data indicating "an identifiable pattern of noncompliance with permit violations and unpermitted discharge to wetlands, especially in coastal watersheds."

Conclusion

Since entering office the Obama Administration has made clear that vigorous enforcement will be a priority for the EPA. Although perhaps a bit ambitious given budget realities, it is clear that the regulated community should anticipate a significant increase in enforcement activity both in permit compliance and unregulated events. Increased oversight, inspections, reporting, and enhanced public examination are likely. Entities that previously avoided oversight should anticipate the possibility of a new regulatory regime. In addition, parties operating in certain targeted fields should expect to continue to bear the burden of further scrutiny.

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