The haze of EPA's Next Gen Compliance
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April 14, 2015
The haze of EPA's Next Gen Compliance
By Emily Remmel, JD, Legal Editor

The environmental compliance world is constantly changing, but perhaps the most significant compliance modification to date is on the horizon. The U.S. Environmental Protection Agency (EPA) has unveiled an integrated plan to propel environmental compliance and enforcement into the 21st century. The plan is called Next Generation Compliance, or Next Gen. The goal of Next Gen is to move the EPA from the current reaction-based enforcement strategy to a contemporary approach that favors advanced technology and real-time data reporting. Theoretically, Next Gen will use technology to close the enforcement gap amid severed government budgets and reduced staff.

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What is Next Gen?

EPA’s Next Gen proposes five integral concepts that will impact the current compliance climate. The concepts are regulation and permit design, advanced pollution monitoring, electronic reporting, transparency, and innovative enforcement.

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The Next Gen concepts:

Regulation and permit design

Next Gen focuses on incorporating clearer, understandable rules into existing regulations and permits that will improve compliance and ultimately avoid litigation. For example, in an attempt to deter violations and reduce costs, the regulated community, in certain circumstances, can implement EPA-certified compliance-ready models—eliminating the need for duplicative inspections.

Advanced pollution monitoring

EPA’s Next Gen aims to make the invisible visible. Modern technological advancements and equipment will allow for streamline pollution detection and noncompliance events. Some examples of the technology include infrared cameras to catch invisible emissions leaks, solar-powered buoys reporting real-time water quality data, and air-monitoring devices installed along fence lines to notify both neighboring communities and companies of pollution events.

Electronic reporting

Traditional environmental reporting compelled the regulated community to fill out and mail paper reports to the necessary agencies for manual review. The EPA recognizes the benefits of e-reporting—greater accuracy and timeliness—in other federal agencies, such as the U.S. Internal Revenue Service. Therefore, the EPA is transitioning many of its permit reporting online. Environmental impact statements, the National Pollutant Discharge Elimination System (NPDES), and air monitoring are just a few examples of permits soon requiring online submission.

Transparency

Next Gen’s concept of transparency to improve performance is a fundamental change to today’s compliance structure. The EPA proposes making pollution sources, noncompliance, environmental conditions, and performance available to the public to assist community members in holding the regulated community accountable.

Innovative enforcement

The EPA aims to strengthen enforcement tactics by applying the above Next Gen core concepts to more effectively and efficiently regulate compliance. The EPA is leveraging Next Gen concepts in various enforcement settlement cases.

The unknowns of Next Gen

Theoretically, EPA’s Next Gen plan appears simple on paper, but it will be significantly complex to integrate into existing regulatory systems. Many of the concepts the EPA proposes with Next Gen are unclear with respect to how each will affect the regulated community. For example, here are a few of the questions raised:

  • Which facilities (and what size?) will be required to install advanced monitoring equipment?
  • What data will the EPA make public and will data be validated?
  • How will real-time data be reported? Will data be quantitative and qualitative?
  • What about confidential business information?
  • What are the certainties that the general public will not misuse, misrepresent, or misunderstand the data made available?
  • How will the EPA and the states collaborate on e-reporting?

How is EPA’s Next Gen going to affect me?

To best prepare your industry for Next Gen, it is important to know what is happening now. As of now, the EPA is incorporating Next Gen as part of large enforcement settlement cases by requiring advanced monitoring techniques and reporting data on public websites. Also, the EPA does not require universal e-reporting for all environmental regulations. Various air regulations require e-reporting (Toxics Release Inventory and Emissions and Generation Resource Integrated Database or eGRID), and it is anticipated that NPDES reporting will transition to e-reporting later this summer.

The regulated community may be significantly affected by EPA’s Next Gen plan. It is likely Next Gen’s concepts will be challenged. Stay tuned.

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