In our August 18, 2023, blog we reported that the newly-appointed United States Environmental Protection Agency (USEPA) Office of Environmental Enforcement and Compliance, David Uhlmann was expected to increase the pace of enforcement efforts.  It appears that the EPA has stepped up its efforts at least as compared to enforcement under COVID.  Further, the EPA and the Biden Administration have plans to continue their “pace” of environmental enforcement/rules/regulations.

EPA’s Annual Report

On December 18, 2023, the USEPA issued a News Release announcing their Annual Enforcement Results.  In this report, they state, “In FY 2023, EPA’s enforcement and compliance program focused on addressing 21st century environmental challenges like climate change, environmental justice, and PFAS (per- and polyfluoroalkyl substances), while adding approximately 300 new positions to reinvigorate an enforcement program that had suffered more than a decade of budget cuts that eliminated approximately 950 positions.”

The three areas mentioned (climate, environmental justice, and PFAS) have played prominently in regulations, enforcement, and planning in the Biden Administration.  We have covered all three of these areas extensively over the past year.

Selected Highlights from the Annual EPA Report

With respect to annual enforcement results, below is a brief summary of some of the areas highlighted in the report.

Federal Compliance Monitoring Activities Conducted by EPA

• “In FY 2023, EPA performed over 7,700 inspections, which is over a 30% increase compared to FY 2022.”

The 7,700 on-site inspections represent a steady rise since the lows during the COVID pandemic but are still below recent previous years:  2019 (8,100), 2018 (8,000), 2017 (8,800), and 2016 (9,400).

As we enter 2024, we will likely see a continued upward trend in compliance monitoring activity.  However, it is also an election year and politics may play into decisions in 2024.

Federal Inspections Conducted by EPA in Areas of Potential Environmental Justice Concern

• “The FY 2022 -2026 EPA Strategic Plan sets forth a goal to increase the percentage of inspections in areas of potential environmental justice (EJ) concern from past levels of approximately 30%.”
• “In FY 2023, EPA performed nearly 61% of its inspections at facilities affecting communities with potential EJ concerns significantly exceeding its FY 2023 target of 50% and exceeding its 5-year goal of 55%.”

EJ is something we have reported on consistently over the past few years.  EJ along with climate-related issues has been the focus of the Biden Administration since 2021.

For companies located in urban areas where there may be concerns about EJ, there is the potential for increased scrutiny associated with environmental permits and permit renewals.

To that point, last year a $9.4 billion Formosa Plastics Plant in Louisiana was denied permission to move forward, despite permit approvals by the Louisiana state regulators.  Judge Trudy White, 19th Judicial District Court, East Baton Rouge Parish, Louisiana, cited environmental justice as the reason for the denial of the permit.  Formosa officials stated they still plan to move forward with the project.  However, a report in October 2023, suggests that the plant may be developed elsewhere in Louisiana.

Total Civil Enforcement Case Conclusions in Areas of Potential Environmental Justice Concern

• “In FY 2023 55% of cases addressed facilities in areas of potential EJ concern. This is the highest percentage since FY 2014, the first year for which OECA (Office of Enforcement and Compliance Assurance) routinely collected EJ statistics.”

EPA Seeks to Double Down on EJ

As a tangent to the EPA’s Annual Summary, a recent announcement indicates that the EPA intends to further escalate its EJ efforts.  They are seeking public comment on the revised “Technical Guidance for Assessing Environmental Justice (EJ) in Regulatory Analysis” (November 15, 2023).

Addressing this new guidance, Karen Bennett, E&W Law recently wrote, “EPA’s draft revisions would embed EJ analyses into all EPA regulatory decisions, even where the underlying environmental statutes and existing regulatory impact analyses do not require such an analysis.  The Guidance asks ‘analysts’ to characterize the effects of EPA actions on vulnerable populations in relation to a comparison population group where the focus is on identifying ‘disproportionate and adverse health effects’ that may exist before or be created by the proposed regulatory action.”

“By incorporating disproportionate effects into guidance, EPA avoids questions about its authority to enforce claims of unintentional discriminatory effect.”

“The Guidance would impose a hefty regulatory burden on federal agencies and regulated entities and seems to go way beyond what any regulatory impact analysis or environmental analysis under federal statutes already requires.”

With this in mind, it would be wise to keep a watchful eye on EJ developments in your area.  See the EPA’s “Environmental Justice in Your Community.”

See the Federal Register announcement seeking public comments on the revised guidance.

Finally, one last “highlight” from the EPA’s Annual Report.

Total Civil Enforcement Case Initiations

•  “In FY 2023, EPA initiated 1,751 enforcement actions.”
• “The highest case initiations since 2018.”

As with other areas of enforcement, this shows a steady increase since COVID.  Again, the number is below most of the previous recent years 2019 (1,655), 2018 (1,846), 2017 (1,955), and 2016 (2,424).

PFAS

PFAS are mentioned in the EPA’s summary but are not detailed in the year-end report.  There are several PFAS-related issues that are likely to be significant in 2024: the PFAS TSCA reporting rule that significantly affects small businesses and the pending designation of certain PFAS as CERCLA Hazardous Substances (CERCLA = Comprehensive Environmental Response Compensation and Liability Act).

The EPA report includes much more information, see: “Enforcement and Compliance Annual Results for FY 2023: Data and Trends.”

Continuing Environmental Protection Progress

Since the EPA was established under President Nixon in 1970, we have made remarkable progress in protecting human health and the environment.  One such recent metric is the reduction in greenhouse gases, which despite a growing economy peaked in the United States in 2006/2007 (much of this is owed to the fracking revolution that unleashed natural gas).

We will always have environmental challenges, hopefully, we will approach these challenges with good science and reasonableness.

If you need assistance with an environmental issue, contact us at info@dragun.com or 248-932-0228.

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

Jeffrey Bolin, M.S., reviewed the blog.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas.  See Jeff’s Bio.  

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