When managers (environmental, plant, human resources, etc.) consider their various responsibilities, obligations, and so on, environmental compliance is one of those constant obligations. What may not be constant is the current less heavy-handed approach to compliance by the United States Environmental Protection Agency (EPA).
On several occasions, we (and others) have noted the kinder, gentler approach by the current administration when it comes to encouraging environmental compliance. However, with the 2020 elections upon us, this kinder, gentler approach could drastically change if there is a change at the top of the Executive Branch.
Let’s begin with some recent federal environmental enforcement news.
Federal Environmental Enforcement
BP Alaska paid $125,000 in fines for hazardous waste violations. According to an article by Alaska Public Media, “The federal agency (USEPA) claims BP failed to properly label hazardous materials in two buildings at Prudhoe Bay. It also alleges that the oil company didn’t have adequate insurance to cover injuries or property damage that could come from storing and handling hazardous waste.” EPA spokesperson, Bill Dunbar, said the BP is now in compliance with the federal program.
FIFRA, EPCRA, TRI, and More
The EHS Advisor reports that in the fourth quarter of 2019 violations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) were collectively approximately $700,000. Nearly half of this (~$300,000) was paid by one chemical company. The EHS Advisor states that this fine was “…for producing and distributing an unregistered disinfectant on multiple occasions, using outdated labeling, and not properly reporting pesticide production.”
The same publication reports that violations under 112(r) of the Clean Air Act, Risk Management Plan, resulted in $375,000 in fines. There were also violations and enforcement under the Emergency Planning and Community Right to Know Act (EPCRA). The largest EPCRA violation noted was about $80,000 for failure to report under Tier II and the Toxics Release Inventory (TRI) for several years.
There is federal enforcement, but the trend in enforcement frequency has been downward. Of course, if you are one of the targets of enforcement, the overall trends do not matter.
The EPA’s Less-Adversarial Approach
In an online article by Kelley, Drye, and Warren, they state, after the election of President Trump, “The USEPA signaled that it would…focus on improving compliance…including voluntary self-correction, that achieve environmental goals more quickly and in a less costly, adversarial, and time consuming manner than traditional enforcement…”
This article also states that the EPA sought to expand the use of the audit policy by promoting the eDisclosure program, the New Owner Policy, and reminding companies that the Audit Policy does not require advance notice. If you need additional information on these programs, you can contact Dragun’s office (248-932-0228).
The current EPA policy eliminates 100% of the gravity-based civil penalties. The EPA will only seek to recover the economic benefit portion of a potential penalty.
Many of the promoted policies mentioned above predate the Trump Administration. However, under President Trump, the EPA is strongly endorsing these policies (see: EPA Announces Renewed Emphasis on Self-Disclosed Violation Policies).
Seventy-Four Percent Increase in Self-Disclosures
Encouraging the use of these programs seems to have worked. In our October 10, 2019, blog, we wrote, Voluntary disclosures… have increased markedly. In FY 2015, there were 289 (at 666 facilities) voluntary disclosures. In 2018, that number had risen to 532 (at 1,561 facilities). The EPA states, “In the nearly three years since launching eDisclosure, EPA has seen about a 74% increase in the number of annual self‐disclosures as compared to the two years prior to its launch.”
As evidenced in the 2016 election, it is increasingly difficult to predict election outcomes. What we can say with certainty is, from a federal perspective, this is a favorable environment to consider environmental compliance assessments. We continue to encourage the regulated community to work closely with their environmental advisors, technical and legal, to address compliance issues now rather than later.
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