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April 25, 2019 Article

Someone’s Always Watching: Mitigating Enforcement Risk from Citizen Monitoring and Crowdsourced Data

Property owners with environmental compliance requirements must increasingly be aware of what sensor technology is available and how it can be utilized.

By Bina Reddy and Matt Schneider

Advances in technology have rapidly driven down the costs of mobile sensors that can detect and measure environmental pollutants, particularly in the areas of air and water quality. This has resulted in a dramatic proliferation in the use of such sensors by citizens and has created a paradigm shift in who generates monitoring data, how that data is used, and its use in government and non-governmental regulatory and litigation enforcement of environmental permits and other legal requirements.

Figure 1: Spectrum of citizen science uses.

Figure 1: Spectrum of citizen science uses.

Courtesy of U.S. EPA Office of Inspector General

Critically, while the technology is steadily improving, low-cost sensors do not yet produce data of the same quality as existing regulatory quality monitors. There are typically no robust verification techniques, sampling protocols, QA/QC procedures, or site-specific calibrations. Furthermore, interpretation of the data is difficult because citizen-generated data cannot be easily applied to existing health standards (e.g., National Ambient Air Quality Standards (NAAQS) under the Clean Air Act or Permissible Exposure Limits (PELs) under the Occupation Health and Safety Act (OSHA)). Sensor data is typically collected from short sampling durations (i.e., one-second or one-minute intervals), while U.S. EPA standards are expressed in longer durations from specific locations. For example, PELs are expressed in eight-hour time weighted averages taken from an employee’s breathing zone. Several NAAQS are measured as annual averages over a period of three years.

Nevertheless, regulatory agencies are embracing citizen collected sensor data as a new resource. As of 2016, federal agencies have statutory authority to use citizen science to advance their agency missions. See 15 U.S.C. § 3724 (Crowdsourcing and Citizen Science Act of 2016). These agencies, led by U.S. EPA, have signaled their support of citizen science and compiled resources to support further development. See e.g., U.S. EPA, “How to Use Air Sensors: Air Sensor Guidebook,” Further, states have also adopted legislation related to citizen science. California has enacted AB 617 legislation requiring its Air Resource Board (CARB) to develop a framework to integrate local communities into its monitoring and regulatory activities. While neither U.S. EPA nor CARB has yet committed to using citizen monitoring data itself, both have has signaled that this data could be useful in identify “hot spots” for further investigation.

Notably, enforcement actions supported at least in part by citizen science has already begun to occur. Using significantly less complex sensors than now currently exist, a group of residents from Tonawanda, New York, used their own data to persuade the New York State Department of Environmental Conservation and U.S. EPA to further scrutinize a local manufacturer. The agency’s study validated the citizens’ results and ultimately led to a $25 million penalty and criminal liability against a company executive. See Sentencing Memorandum, U.S. v. Tonawando Coke Corp, et al., (W.D.N.Y. Sept. 16, 2013).

Mitigating the Risk

In response to the rise of citizen-developed data, property owners with environmental compliance requirements should become familiar with applicable low-cost sensor technology. Property owners should also attempt to identify any sensor networks near their facilities and any related environmental justice concerns in the surrounding community. As the sensor technology continues to expand to additional pollutants and potential uses, it will become increasingly important to work proactively to identify possible “hot spots” near facilities. Lastly, property owners may consider deploying their own low-cost sensors—using sound sampling and verification procedures—to supplement existing monitoring and to provide an additional data point to assess their own legal exposure.

Bina Reddy is a principal with Beveridge & Diamond, P.C., in Austin, Texas. Matthew Schneider is an associate with the firm in Washington, D.C.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).