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:
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.
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: