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Today, the EPA is considering changes to that framework that will embrace a new mindset about how we address both new and ongoing pollution scenarios that continue to challenge both industry and regulators alike. This new EPA strategy is dubbed “Next Generation Compliance,” or “Next Gen,” and though still relatively unstructured, it offers a much more proactive approach to compliance through increased use of technology, transparency, and cooperation. In the September/October issue of the Environmental Law Institute’s publication, The Environmental Forum, Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance, provides a breakdown of what the future may hold in her article titled “Next Generation Compliance.”
According to Giles, while the past impetus on enforcement will continue, today’s advances in technology may help minimize the need for enforcement by making it easier and smarter to simply comply in the first place. “We are moving toward a world in which states, EPA, citizens, and industry will have real-time electronic information regarding environmental conditions, emissions, and compliance, and we are using what we have learned about compliance to make it easier to comply than to violate.”
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Making it easier to comply will serve two obvious purposes: better compliance rates and less pollution. However, it will also address the fact that the EPA and the states simply do not have the enforcement resources to keep up with violators and that thus, it is much more intelligent to craft rules “with compliance built in.” To illustrate this, Giles cited how the agency addressed the cumulative effect of auto emissions in the United States. Rather than requiring each car owner to comply with requirements, “we require auto manufacturers to install pollution controls … and certify cars as meeting that standard.”
Similarly, in a 2013 proposed rule requiring emissions controls on all oil and gas producers, the EPA introduced the idea that they would require emissions equipment manufacturers to certify their models as compliant, leaving oil and gas producers with the much easier task of just purchasing and installing the certified equipment that meets their needs. Moreover, Giles said, this change also encourages use of technology to further simplify reporting. “Compliance checks are easy: government need only electronically compare the user’s purchase and installation reports with the manufacturer’s sales reports.”
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This vastly more efficient way of regulating thousands or even millions of emissions sources has its roots in EPA’s lessons learned about encouraging compliance, which Giles said prove two things— “simplicity and clarity”—to be most effective. “When you consider what will actually happen in the real world, the net environmental benefit of a simpler, clearer rule may trump a more detailed and in theory more protective standard. We need to think more carefully about balancing flexibility and simplicity when we write rules and permits.”
In addition, Giles said the face of enforcement will also change as it becomes more innovative and finds ways to not only punish violators but also to institute programs that make them clean up their act. One such program began in 2010 and targeted the nation’s worst drinking water systems. They were given 6 months to comply after which enforcement actions began in earnest. Three years later, according to Giles, “we have seen a 65-percent drop in reported public water suppliers with serious violations.” Giles also cited other innovations, such as advanced monitoring capabilities and third-party verification of compliance status, as other ways the EPA is upgrading enforcement and subsequently, compliance.
©2013 Environmental Law Institute®, Washington DC. Reprinted with permission.