EPA Headquarters Prods Cleanup Programs on Enforcement to Strengthen EJ

On July 1, 2021, EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a memorandum to all EPA Regional Offices urging the offices to increase cleanup program enforcement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA), particularly at sites that “most impact overburdened communities.” Entitled Strengthening Environmental Justice Through Cleanup Enforcement Actions (“Cleanup Enforcement Memo”), this memorandum is third in a series, following the OECA memoranda Strengthening Enforcement in Communities with Environmental Justice Concerns (April 30, 2021) and Strengthening Environmental Justice Through Criminal Enforcement (June 21, 2021). All of these are intended to implement the dictates of Executive Order 14008 and Administrator Regan’s follow-on April 7, 2021 direction that all EPA offices should strengthen enforcement of environmental statutes in pollution-burdened communities.

The Cleanup Enforcement Memo sets forth potential specific actions under five general objectives:

• Require responsible parties to take early cleanup actions
• Ensure prompt cleanup actions by responsible parties
• Improve enforcement instruments
• Increase oversight of enforcement instruments
• Build trust and capacity through community engagement

Key Takeaways

• EPA Headquarters is encouraging each Regional Office to be more aggressive with its available enforcement tools to expedite cleanup work at sites in or near overburdened communities. While these tools have been available for some time, this Administration is taking steps to prioritize enforcement in a way that distinguishes it from the previous Administration and to do so in a way that explicitly carries forward the Biden Administration’s stated commitment to environmental justice.

• Regional Offices are expected to increase use of administrative orders to obtain interim cleanup work to reduce risk while broader consent decree negotiations are underway.

• Regional Offices may be more willing now than in recent years to require negotiations to proceed more rapidly than usual, particularly when negotiations take more than one year. When they take longer, EPA may terminate negotiations and issue unilateral administrative orders to obtain the desired response actions.

• EPA monitoring of compliance with consent decree requirements may increase, particularly with respect to monitoring obligations and institutional controls and other terms that may affect neighboring communities.

• Parties to consent decrees and administrative consent orders, particularly at sites in or near burdened communities, may benefit from internally confirming their compliance with key obligations to avoid any unpleasant surprises, including stipulated penalties, resulting from an EPA audit of such obligations.

Old Tools, New Spin

The five general objectives and several of the specific enforcement tools listed in the Cleanup Enforcement Memo have been around a long time. For example, the Office of Site Remediation Enforcement (OSRE) issued a memorandum in 1999 entitled Negotiation and Enforcement Strategies to Achieve Timely Settlement and Implementation of Remedial Design/Remedial Action at Superfund Sites, and in 2009 issued a partially superseding memorandum entitled Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations.  Both of these memos sought to accelerate what is often a drawn-out negotiation process, either through deadline-setting or enhanced Regional-Headquarters dialogue.  The 1999 memorandum specifically noted that bifurcating Remedial Design from Remedial Action and accomplishing the former through an administrative consent order rather than a consent decree was a potential tool to accelerate site progress.  The Cleanup Enforcement Memo includes reminders about several of these long-standing tools as a means of minimizing work delays, but does so with specific reference to potential environmental justice benefits.

New(er) Tools?

The Cleanup Enforcement Memo does include potential tools that have not historically been a topic of much discussion in the CERCLA and RCRA cleanup programs.  Key to its stated objectives is the stress on the availability of mapping and screening tools such as EJSCREEN to identify sites affecting overburdened communities, along with a reference to addressing “the most urgent risks to human health” at such sites.  If this results in a focusing of enforcement priorities on a specific subset of sites that present immediate exposure concerns or acute release threats, rather than a general exhortation to all EPA Assistant Regional Counsel to speed things up across the board, the Memo might achieve more for the target communities than its predecessors have achieved and advance EPA’s underlying goal of promoting environmental justice.

In addition, the Cleanup Enforcement Memo includes some other relatively new ideas, such as including settlement terms that provide for the performance of a specific project in the event of noncompliance with the settlement agreement, perhaps in lieu of the traditional approach of stipulated penalties.  Such projects could benefit the pertinent community far more than the assessment of penalties, although it might be challenging to value and identify such projects in a timely fashion.  The Memo also suggests that potentially responsible parties (PRPs) could be required to maintain and publish a schedule of compliance obligations under the pertinent enforcement instrument to keep the public apprised of compliance status.  The Memo similarly recommends that the Regional Offices undertake additional compliance reviews at sites in communities with EJ concerns, and evaluate whether cleanups are having unintended consequences such as dust and noise on neighboring communities.

The Cleanup Enforcement Memo also mentions tools specifically in connection with disputes over cleanups at federal facilities on the National Priorities List.  These include the increased use of certain dispute resolution techniques and working with DOJ to elevate issues and, where appropriate, issue CERCLA Section 106 orders to federal agencies.  To do the latter would require the concurrence of DOJ, which has rarely provided such concurrence in the past.

Overall, the Cleanup Enforcement Memo provides an important reminder to everyone of:

• EPA’s emphasis at all levels on environmental justice;
• The value that EPA places on moving negotiations along without undue delay;
• The potential for increased enforcement should EPA perceive a delay as unreasonable; and
• The potential value to PRPs of engaging with affected communities (along with EPA) to mitigate the risk of frustrated community expectations and surprises during implementation.

Beveridge & Diamond’s Superfund, Site Remediation, and Natural Resources Damages practice group assists clients in litigation and allocation at CERCLA sites, including complex, large-scale sites. We counsel clients on developing case law and requirements under CERCLA and similar state laws. B&D’s Environmental Justice practice has been at the forefront of EJ issues for decades, bringing specialized private sector and government experience to bear.” For more information, please contact the authors.