Over the last several years, EPA has been touting its “Next Generation Compliance” initiative. Sounds great, but what does it mean, and will it change EPA's enforcement approach?  While it's too soon to make a final judgment, the bottom line is that Next Generation Compliance may be a bit of a dud.    

Cynthia Giles, EPA's assistant administrator for the Office of Enforcement and Compliance, provides a good overview of the Next Generation Compliance initiative in a recent article (link here) in the Environmental Law Institute's Environmental Forum.  Giles' explanation is consistent with - almost repetitive of – other EPA descriptions of the initiative.  It begins with a problem statement: There's widespread noncompliance in both large sources and smaller, more dispersed sources that EPA's current enforcement approach isn't addressing, thereby preventing achievement of the environmental and health goals of EPA's regulations.  The flaw in this problem statement: There's no data to support it.  Where is this noncompliance, and how do we know that it is impeding the attainment of the goals of EPA's existing regulations?  The statement seems more an article of faith rather than a well-documented assessment of the current state of compliance.

Nevertheless EPA uses this “problem statement” to establish the need for, and define the five elements of, the initiative:

1. Design regulations and permits to build in compliance.

2. Use advance emissions/pollutant detection technology.

3. Require electronic reporting.

4. Expand transparency.

5. Undertake innovative enforcement approaches.

These comprise a nice set of talking points, but let's pull these apart one at a time to understand what they mean and whether they represent something new and different for EPA.

Build in Compliance

EPA's first response to address the broad noncompliance it believes exists is to build compliance into regulations.  What does that mean?  The fundamental ideas here – make compliance easier to understand, self-implementing and easier to achieve than noncompliance - are not anything earthshattering. EPA identifies two examples of regulations that have “incorporated” compliance into their design, both of which are focused on “upstream” compliance: (1) making manufacturers of cars, rather than individual users, responsible for installing required pollution control equipment to control mobile source pollution, and (2) gas nozzle inlet restrictors, which prevented misfueling of newer cars with leaded fuel.  While there is little doubt these approaches have been successful, it's difficult to imagine that such upstream approaches could be easily applied and extended to industrial facilities.  One idea that EPA has floated is providing an option for certifying emission control equipment for natural gas extraction/gathering facilities.  That is, facilities can comply with emission control requirements by selecting an approved type of control equipment.  Although such an approach might be a simple way to ensure initial compliance, it does nothing to assure that the equipment is properly maintained and operated.  ”Building in compliance” may be a nice concept, but the available scenarios where such upstream controls can work in the real world may be very limited.

The other element EPA has emphasized – requiring self-assessment and reporting – has been in place for years.  Dischargers are required to submit monthly discharge monitoring reports; large emitters submit annual compliance certifications under Title V of the Clean Air Act; releases of toxic substances must be reported annually under the Toxic Release Inventory program.  So what more is actually required to achieve the goal of self-certification?  EPA hasn't said, yet.

Advance Emissions/Pollutant Technology

EPA's next concept is to adopt new technology to detect emissions or discharges that haven't been detected previously.  The primary examples that EPA has provided are increased use of FLIR (infra-red) cameras, remote sensing and fenceline monitoring.  EPA has also stated that it intends to require use of these technologies in consent decrees, as it did in a settlement with BP regarding its Whiting, IN refinery.  But can these technologies actually improve or even ascertain a facility's compliance with existing requirements?  Broadly stated, while these technologies have their uses, most are unable to actually quantify the level of emissions or discharges.  In essence, they can detect pollution, but may not be able to provide sufficient information to determine compliance.  The real question is whether the additional information gained through these technologies is a cost-effective approach to compliance and enforcement.  That remains to be seen.

Electronic Reporting

I previously wrote (here) about EPA's proposal to require electronic monitoring in the Clean Water Act NPDES program, and, to me, the most important aspect of the Next Generation Compliance initiative is the movement to electronic submission of environmental data.  The value of electronic reporting from EPA's perspective is clear.  It will greatly simplify real-time data aggregation and analysis for EPA and the states, allowing the Agency to focus its enforcement and compliance assistance resources.  Moreover, as I've explained, the greater availability of such data to the public through portals like EPA's Enforcement and Compliance History Online (which EPA has just updated and intends to make additional refinements) greatly increases the likelihood of citizen oversight and enforcement.

The shift to electronic data submission also carries potential benefits for the regulated community.  As with EPA, it should simplify data analysis so that industry can better identify whether compliance problems actually exist.  If implemented correctly, it could also reduce the costs associated with data submission.  Risks exist, of course, including concerns over the quality and accuracy of data appearing in EPA's publicly-available databases and the potential disclosure of confidential business information.  Indeed, addressing confidentiality is a difficult and time-consuming task, as evidenced by the substantial effort EPA has made to address CBI determinations in its greenhouse gas reporting rules.

At bottom, the days of manually sifting through boxes of paper discharge monitoring reports are coming to an end.  That's not a bad thing.  But the road may not be a smooth one.  This shift to electronic reporting will cost money at a time when government resources are dwindling.  States have been pushing back.  Just recently, reports have surfaced about issues with adoption of the electronic waste manifest, which has been hampered by budget constraints.  I think the shift to electronic reporting is inevitable; what's open for debate is how quickly that transition will be completed.

Transparency

EPA desires to make the information it collects more accessible to the public, believing that public disclosure will lead to improved environmental performance.  Think Toxics Release Reporting, which has created incentives for facilities to reduce their use and releases of toxic substances.  EPA's ability to increase transparency is contingent on two elements.  The first step is adoption of electronic reporting and advanced data management systems.  The second step is creating portals to make that information publicly available.  As described above, EPA is moving forward with electronic reporting.  Making data web-accessible is likely to be more of a challenge, as shown by the well-publicized technical problems the Obama administration has had with the Affordable Care Act web portal.

Innovative Enforcement

The final element in EPA's plan is “innovative enforcement.”  This sounds like it might lead to something fundamentally different from EPA's existing enforcement approach.  But it is something far less ambitious than that.  EPA's primary “innovation” is to use the electronic data it collects to deliver more efficient and targeted compliance assistance.  Additionally, EPA intends to rely on the new monitoring technology (described above) to focus its enforcement efforts.  It's not clear how these efforts are truly “innovative.”

Conclusion

EPA's “Next Generation Compliance” is likely to deliver far less than EPA is promising.  The primary innovation is to improve its data collection and management systems and make that data more readily available to the public.  This is not a paradigm shift to a new approach to environmental enforcement.  It is simply an acknowledgement that EPA can do its job better and more efficiently by modernizing its data collection and management functions.  But, in the end, EPA is still going to have to rely on its more traditional enforcement tools – inspections, notices of violation, and administrative, civil and criminal proceedings – as the core of its enforcement approach.