Environmental Justice: A Focus in Criminal Enforcement

by Amanda Reeve and Lucas J. Narducci

The U.S. Environmental Protection Agency’s (“USEPA”) Office of Enforcement and Compliance Assurance (“OECA”) released July 1, 2021 guidance establishing a process on which it will rely upon to advance its’ Environment Justice (“EJ”) goals.  Using authorities granted under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”), the USEPA is determined to strengthen its EJ initiative through cleanup enforcement at both private and federal facility sites.

Working within the CERCLA and RCRA statutes, the guidance provides the following process in which cleanup and federal facilities enforcement programs can work to protect overburdened communities:

Require Responsible Parties to Take Early Cleanup Actions

This would be accomplished by empowering EPA regions to use the authorities granted under CERCLA Section 106(a) and RCRA Section 7003.

Ensure Prompt Cleanup Actions by Responsible Parties

Several options can be implemented to expedite cleanups, including working with the Department of Justice to address delays by federal agencies; issuing CERCLA Section 106 orders to private entities that have delayed cleanups; etc.

More Robust Enforcement Instruments

Including enforceable language in enforcement instruments to protect the impacted community; requiring installation of advanced monitoring equipment and making that data publicly available; mandating that Potentially Responsible Parties publish and keep current a schedule of compliance obligations; etc. are a few of the enumerated ways to make enforcement instruments more robust.

Increased Oversite of Enforcement Instruments

This measure would require compliance reviews at sites to ensure that enforcement instruments are being implemented accordingly and timely; ensuring institutional controls are regularly monitored for compliance and determining whether or not new institutional controls are needed; and assessing whether or not the remedy implementation is adversely impacting the community.

Build Trust and Capacity Through Community Engagement

Proactively and regularly communicating with the community and being more transparent about the cleanup activities and activities impacting that community are key components to successfully implementing this measure.

The USEPA is confident that this process will strengthen and advance the agency’s EJ goals.  However, the OECA will monitor and evaluate this process and update it accordingly as well as other tools to ensure more effective and impactful measure are being implemented in its EJ initiatives.

Does any of this really change the way things are actually accomplished in certain states with the relevant USEPA region, probably not. It is somewhat refreshing that the federal government at times focuses in on what numerous federal administrations implemented several decades ago.  Again, as these initiatives get under way, we will strive to provide updated info that may impact you, your business, or your community.

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