The Biden Administration has made environmental justice and equity a key pillar of its environmental policy, directing EPA to incorporate this concept at all levels of its decision-making process. EPA’s Administrator Michael Regan announced on April 7, 2021 that “[t]oo many communities whose residents are predominantly of color, Indigenous, or low-income continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts. As a result, Administrator Regan directed his staff to take “immediate and affirmative steps” to engage with communities overburdened by pollution and underserved in resources, including a command to “strengthen enforcement of violations of cornerstone environmental statutes” in those communities .[1] To that end, on April 30, 2021, Lawrence Starfield, Acting Assistant Administrator issued a Memorandum – Strengthening Enforcement in Communities with Environmental Justice Concerns (epa.gov) (“EJ Memo”) identifying a number of measures that may be implemented to advance protection of these communities:

1. Increase Inspections. EPA intends to increase inspections in overburdened communities. The EJ Memo indicates that EPA currently is evaluating the types of programmatic inspections that would address the “most serious threats to overburdened communities” and will develop new inspection goals once that evaluation is complete. The EJ Memo also encourages the use of “offsite compliance monitoring tools” for facilities in EJ areas. As a result, predictions are that there will be increased scrutiny of “low hanging fruit” such as Clean Water Act Discharge Monitoring Reports, Emissions Reporting under the Clean Air Act and Toxics Release Inventory Reports.[2] Thus, facilities located in EJ communities should anticipate increased scrutiny and inspections as EPA implements this policy.

2. Strengthen Enforcement. The EJ Memo states that EPA will strengthen enforcement in overburdened communities by resolving noncompliance through remedies with “tangible benefits” for the community and encourages “creativity” to fulfill this tangible benefit goal.[3] Beyond seeking penalties for noncompliance and preventing future pollution, the EJ Memo also suggests that “tangible benefits” could include mitigation of past impacts for pollution, fence-line monitoring and transparency tools and restitution for victims of environmental crimes. In addition, EPA will consider issuing administrative orders in judicial cases or other interim measures to speed implementation of pollution controls. The EJ Memo also encourages incorporation of Supplemental Environmental Projects in settlements.[4] As a result, potential defendants can expect to see settlement terms that go beyond a typical Administrative Order or Consent Decree to incorporate potential injunctive relief that provides immediate “tangible” results to EJ communities.

3. Increase Community Engagement. EPA intends to increase transparency and information about enforcement cases that could most directly impact overburdened communities through a variety of options including press releases, public meetings, and increased awareness of online compliance history information.

4. State/Tribal Partners. The EJ Memo states that EPA intends to continue sharing responsibilities with their state/tribal “co-regulator” partner but will not “hesitate to step in and take necessary action” where EPA believes the co-regulator is not taking timely or appropriate action where a community’s health may be impacted by noncompliance. In other words, EPA will have no issue with taking over/directly initiating an enforcement action and explicitly rebukes EPA’s 2019 policy that directs deference to states with regard to environmental enforcement.[5]

It is anticipated that this is the first of a number of “Environmental Justice” memos to be issued with EPA and more are expected on the horizon as EJ concerns take center stage at EPA. Whether this enforcement policy will result in a notable transformation of EPA’s enforcement activities will only become clear in the months and year ahead. Some hurdles that EPA will have to cross:

• The definition of communities “overburdened” by pollution will be more difficult to implement than the pronouncement implies. Actual testing of environmental media may not necessarily reveal high concentrations of contamination regardless of the visual impact of industry and the community. EPA will need to develop a defensible definition of “overburdened” by pollution that goes beyond a site-specific “EPA-knows-it-when-they-see-it” approach.

• EPA’s “creative” remedies will be constrained by their statutory authority. Environmental liabilities are imposed on persons/entities based on “conduct.” The private sector entities must do something in violation of a permit, a permit by rule or be responsible for a release or contaminant. A person or entity cannot be “convicted” of mere presence or existence in a particular neighborhood. While a private entity may want to engage in good neighbor practices, they cannot be compelled to take action because of their “status” as a neighbor.

• In most circumstances, liability cannot be imposed retroactively to address “historic” contamination. Although CERCLA can address historical contamination if a party falls within one of the four categories of liable parties, EPA may be reticent to deem an entire community as a Superfund site. Further, while in theory RCRA may require corrective action for historical contamination, that contamination beyond that fence line must still be tied directly with a RCRA Solid Waste Management Unit (SWMU) or Area of Concern (AOC).

• The issues faced by overburdened communities are often not the result of the failures of federal law but have more to do with laws and regulations that are largely local in nature and overseen by local authorities, such as zoning laws. Current environmental laws do not usurp these local laws.

Regardless of the issues that will be faced by EPA as it implements the EJ directives, facilities operating in areas that could be deemed “environmental justice” communities should expect to experience some measure of heightened scrutiny as EPA, delegated jurisdictions and stakeholders are more empowered to take action.