EPA's acting chief of enforcement sent a memo to staff last week (that The Hill obtained) calling for them to "[s]trengthen enforcement in overburdened communities by resolving environmental noncompliance through remedies with tangible benefits for the community" with a particular emphasis on "cornerstone environmental statutes."

This guidance appears to be implementing Administrator Michael Regan's directive from earlier in April to strengthen enforcement and help advance the protection of communities, using existing resources to advance environmental justice (EJ) goals. EPA staff is also asked to "think creatively" about developing settlement agreements related to pollution-related noncompliance -- this is a tactic used in lieu of monetary penalties that the Trump administration had ended but that the Justice Department recently revived.

Why This Matters

The Biden administration can immediately make progress correcting environmental injustice through fair and strong enforcement of current laws. As was reported earlier this week, for example, the Environmental Integrity Project (EIP) recently found that last year thirteen US oil refineries emitted more of the cancer-causing chemical benzene than was permitted by the government. These facilities are often found in minority and poor communities. Cleanups can happen more quickly with the creative use of settlement agreements that require the polluter to remediate its mess.

EJ Is a Priority for Team Biden

As The Hill explains, the Biden administration has said that addressing the environmental issues that disproportionately affect disadvantaged communities is a major priority, and they are putting real money behind their talk -- The White House included $1.4 billion for EJ in its budget request for fiscal 2022.  The EPA memo specifically calls on staff to use off-site compliance monitoring tools to:

• Prevent further pollution due to noncompliance, mitigate past impacts from pollution, and seek penalties for violations that impact overburdened communities;
• Seek early and innovative relief, e.g., fence-line monitoring and transparency tools;
• Incorporate Supplement Environmental Projects (SEPs) in settlements, where appropriate;
• Assist and seek to obtain restitution for victims of environmental crimes.

But, but, but Inspections Hard During Pandemic

One limitation, however, on the ability to resume enforcement is the EPA's ability to perform inspections that would identify actual violations during the "continuing COVID-19 health crisis." The pandemic “constrains” the ability of the agency inspectors to safely visit facilities, and the agency says that the health of their employees is a top priority. But the memo states that when "an inspection can be safely performed and failure to inspect a facility could threaten to impact the community’s health (e.g., where health effects are reported in an overburdened community), then an inspection to assess the threat would be deemed mission-critical and appropriate under Agency guidance."

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Copyright © 2021 Our Daily Planet. Reprinted here with permission. This version may have been edited from the original article published on May 6, 2021.