Coming Soon to a Settlement Near You: Next Generation Compliance

In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements.  Some of the tools are more “next generation” than others, but they all bear watching by the regulated community.  The specific tools highlighted in the Giles memorandum include:

  • Advanced monitoring, including real-time monitoring of ambient pollution levels at the facility fence-line or in the immediate neighborhood
  • Third party compliance verification
  • Electronic reporting
  • Increased public availability of compliance data

To me, the first and last bullets are key.  Third party compliance verification is so last generation that I remember suggesting it in 1978 in a class at MIT.  I believe it may have been innovative then; it isn’t now.

Advanced monitoring, particularly when combined with real-time disclosure to neighbors or citizen group, is a whole other kettle of fish.  It will certainly facilitate citizen oversight – and citizen enforcement – of environmental laws.  Of course, in some circumstances, done right, there could be advantages to regulated entities in having such information.  The question always arises, though, if it’s so good for the regulated entities, then why don’t they voluntarily install such equipment, without an enforcement prod by EPA.

In any case, we’re certainly going to see more of this.  While EPA may not always have legal authority to require the various Next Generation Compliance tools, the memorandum encourages EPA staff to include them in Supplemental Environmental Projects.

And if you want some idea of what EPA considers to be Next Generation settlements, EPA has provided a list of examples.

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