We know that U.S. EPA budget is tight. Maybe that is why they are looking for new and innovative ways to reduce their work load. This is evident in the memorandum released on January 7, 2015 by EPA’s Office of Enforcement and Compliance Assurance.
The memorandum is titled "Use of Next Generation Compliance Tools in Civil Enforcement Settlements." In the memo, U.S. EPA Assistant Administrator Cynthia Giles discusses use of advances in pollutant monitoring and information technology to "increase compliance with environmental regulations."
Third Party Verification
One the the tools U.S. EPA recommends in its memorandum is the incorporation of "independent third party verification" into settlement agreements. The concept is that an outside firm would be identified in the settlement to monitor a companies compliance with the injunctive relief portion of the settlement.
U.S. EPA notes that the verifier must be truly independent. It cannot be an environmental consultant who provides a report to the company before it supplies the compliance review report to U.S. EPA. The verifier will have to certified as independent.
The Agency notes that use of third party verifiers may be especially valuable in situations where the injunctive relief has a lengthy and/or complex compliance schedule. While the memo doesn’t discuss it, I’m certain the expectation is that the company will pay for the third party verification costs.
Other Advanced Compliance Techniques
Other tools discussed in the memorandum include:
- Advanced monitoring- Examples include monitoring techniques that are "not yet in widespread use," or less expensive, easier to use or mobile monitoring techniques.
- Electronic reporting- A company would set up a system whereby it would electronically submit required reports and data in a searchable format. EPA makes clear electronic reporting doesn’t mean just e-mailing the report to a U.S. EPA Regional Office.
- Public accountability through increased transparency of compliance data- The memo encourages companies to display compliance status on their webpage, via a mailer or on the Enforcement and Compliance History Online database (ECHO). The idea is wider dissemination of compliance data will allow the public to monitor and notify U.S. EPA if a company is not meeting its commitments.
While EPA states this strategic initiative is designed to increase compliance. The reality is that U.S. EPA doesn’t have the staff to keep up with its ever increasing workload. The U.S. EPA wants to use monitoring equipment, the public and third parties as another set of eyes to monitor compliance. The additional costs for all of these new techniques will almost certainly be placed upon the settling party.