In a recent memo issued by EPA’s Office of Enforcement & Compliance Assurance (OECA), Assistant Administrator Cynthia Giles announced that four specific “enforcement tools” should be considered “in all civil enforcement cases and incorporated in civil and administrative settlements whenever appropriate.”  OECA notes that these measures can be imposed via settlement through “injunctive relief, mitigation, or Supplemental Environmental Projects.”

These tools include:

  •  “Advanced monitoring,” including both point source emission/discharge monitoring and ambient monitoring,
  • Independent third party verification of a settling party’s compliance with settlement obligations,
  • Electronic reporting, and
  • Public accountability through increased transparency of compliance data (EPA notes that “facilities are more likely to take extra caution to self-police and ensure their operations are addressing pollution problems when the information is transparent”).

One of the more problematic areas of this policy is so-called “advanced monitoring.”  In the memo, EPA defines “advanced monitoring” as monitoring techniques that (1) are not in widespread use, (2) are collected on a “real-time or near real-time” basis, (3) are easier to use or more mobile, (4) provide “acceptable” data quality that is “easier to interpret,” or (5) existing technology used in a “new way.”  Examples cited by EPA include infrared video cameras to record emissions, mobile monitors, and fence-line monitors.

Unless carefully vetted, these Next Generation “tools” could create significant issues for companies entering into settlements with EPA.  For example, most permitted compliance monitors are based on established technology and subject to extensive calibration requirements to ensure accuracy; conversely, other technologies that are “not in widespread use” are unlikely to achieve the same level of accuracy and may wrongly indicate noncompliance.  Moreover, EPA’s emphasis on “real-time” data is of questionable value when standards (and compliance) are based on long-term “rolling” averages.  Finally, while “transparency” of data can be helpful in some instances, it can also be abused or misinterpreted, and thus create confusion as to a facility’s compliance status.

To read the full OECA memo, click here. Troutman Sanders will continue to monitor and track this development as it is implemented by the EPA.