This is a guest post from Brett A. Podolsky. Mr. Podolsky is a criminal defense attorney in Houston, Texas, is Criminal Legal Specialist certified by the Texas Board of Legal Specialization and was the Assistant Criminal District Attorney for the State of Texas.
How the EPA Monitors Compliance
The Environmental Protection Agencies (EPA) ensures that a regulated entity complies with environmental regulations and laws. The EPA monitors compliance of regulatory agency actions performed in order to determine if a certain facility (or facilities group, e.g. plants in a geographic location, corporate structure, or sector) is compliant with the applicable law(s).
EPA compliance monitoring includes 1) inspector support, 2) compliance monitoring (on-site), e.g. investigations, inspections, and evaluations (including review of documentation, permits, and data), 3) compliance monitoring (off-site), e.g. support, data collection, oversight, reviews, coordination of programs, and reporting, and 4) formulation and/or implementation of strategies for compliance monitoring.
What is EPA Compliance
Regardless of your facility’s location in the United States, you must adhere to certain regulations and rules put in place by the EPA. Environmental compliance is a big deal. If you’re uncertain about what EPA compliance means, you might not be in compliance. Non-compliance can mean monetary fines, penalties, and violations.
EPA compliance means conforming in the fulfillment of EPA’s requirements. Conformity simply means the business must meet the requirements set forth by EPA:
• This means the business must do everything required – it can’t pick and choose what to do with the EPA requirements.
• Compliance means the business must do everything it’s required to do – correctly and completely. EPA compliance might sound simple and straightforward, but it can be very difficult for many businesses.
Compliance Monitoring
EPA encourages facilities and businesses to voluntarily identify and disclose its violations. EPA may also discover violations through complaints or tips received from the public. However, if the business or organization doesn’t speak up, it may later face civil or criminal violations and enforcement by EPA.
Inspections, civil investigations, information requests, record reviews, and other methods are used by the EPA to monitor compliance:
• Inspections are an essential component of EPA’s efforts to monitor compliance. EPA and/or regulatory partners perform compliance inspections. The inspection is a visit to the site or facility to gather information needed to ascertain if the entity is in compliance. Pre-inspection activities are typically included beforehand. An inspection may involve a short walk-through taking hours to an event taking weeks to complete.
• An evaluation under the Clean Air Act may involve a Full or Partial Compliance Evaluation (FCE/PCE). An FCE involves a complete evaluation of the facility’s compliance status. An FCE may occur through several PCEs.
• A civil investigation is a detailed assessment of the facility’s compliance status. Such an investigation usually takes several weeks to complete.
• A record review involves EPA’s review of the facility’s records. Such a review occurs at the agency’s offices—either at EPA, local, or state offices. It may occur in tandem with an on-site inspection.
• An information request is a written request for data when 1) an inspection, investigation or review indicates that a potential problem may exist, 2) EPA receives a referral concerning a potential problem, 3) a study conducted indicates a possible compliance issue, or 4) the facility/entity has demonstrated an ongoing “pattern of non-compliance.”
EPA’s audit policy underscores the importance of regulated entities’ willingness to discover, report, and ameliorate violations of U.S. environmental regulations and laws. If all regulated entities agreed to self-identify and disclose violations, formal investigations or enforcement actions would be unnecessary.
How the EPA Enforces Compliance
If a regulated entity doesn’t comply, or the EPA orders cleanup, enforcement actions will be initiated. Because EPA is empowered to protect the environment and human health, it will attempt to enforce the law. Environmental justice (EJ) works to protect those communities “disproportionately affected” by pollution. In addition, EJ:
• Plans, implements, and enforces EPA compliance
• Identifies cases of interest to pursue
• Develops solutions
Enforcement Programs
Many federal environmental statutes have both civil and criminal components to address violations:
- Civil administrative actions involve non-judicial enforcement actions by EPA (or a state). An administrative action may take the form of: • An order, with or without penalties, directing a business, individual, or other entity to come into EPA compliance, e.g. clean up a site. • A notice of violation, e.g. a Superfund notice.
- 2. Civil judicial actions involve the court. These lawsuits are filed in a court of law, against entities or persons who failed to 1) comply with regulatory or statutory requirements, 2) comply with a prior administrative order, or 3) compensate EPA for costs relating to the cleanup of a Superfund site (or commit to performing clean up tasks). Civil judicial cases are filed on behalf of EPA by the U.S. Department of Justice.
- Civil cases are usually filed by a State Attorney General’s Office on behalf of a state government.
- Criminal actions may occur when a state or EPA enforces against an entity or individual by bringing a criminal action. A criminal action is typically reserved for more serious violations – those considered to be “willfully” or “knowingly” committed by the offender. If convicted, the offender faces imprisonment and/or significant fines.
What Enforcement Issues Does EPA Face?
The author of “Enforcement at the EPA: High Stakes and Hard Choices,” (Revised Edition, 2012) writes that the EPA is challenged by a static or declining workforce.
EPA’s FY 2018 budget proposes to do more with much less. In July 2017, a House bill proposed to cut EPA’s funding by more than $500 million.
That said, a civil or criminal action by the EPA must be taken extremely seriously. It’s relatively easy for businesses and organizations to conflict with EPA’s seven statutes and 44 programs.
Thanks for the information Brett!
More later.
As always, please feel free to contact me at walter.james@jamespllc.com
WDJiii
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