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By Rachel Leven
Feb. 6 — The Environmental Protection Agency's new federal Next Generation Compliance strategy includes approaches that individual states have been using for years to help regulated entities comply with environmental laws.
In Colorado and New Hampshire, for example, the state environmental departments have increased compliance with hazardous disposal requirements by creating self-certification programs for small facilities to check off their requirements.
States have primary responsibility for implementing environmental rules and ensuring compliance, which is why the EPA now is working to introduce Next Gen into even more state programs, including sending advanced monitoring equipment to 11 state and local environmental departments.
Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance, told Bloomberg BNA in December 2014 that states and EPA headquarters program offices alike are seeing the benefits of “building systems” that will result in less pollution and better compliance rates, using less government resources.
Next Gen is intended to help the EPA and states target limited resources to address the highest environmental risks, and it is among the EPA's enforcement priorities for fiscal years 2014 through 2016.
The strategy includes five approaches to reduce noncompliance:
• designing permits and rules with compliance in mind,
• utilizing advanced emissions or pollutant detection technology,
• shifting environmental reporting practices to be done electronically,
• expanding transparency and
• using “innovative enforcement approaches” such as data analytics, according to the EPA.
States have been implementing and proposing approaches to improving compliance for years that now would fall under the Next Gen umbrella.
For example, Martha Rudolph, director of environmental programs for Colorado’s Department of Public Health and Environment, told Bloomberg BNA her state has improved compliance through its Small Quantity Generator Self-Certification Program.
In 2008 the department began sending checklists detailing hazardous waste disposal requirements to small facilities, such as dry cleaners, that generate above a certain threshold of waste.
Self- and third-party certification programs fall under the “more effective rules and permits” prong of the federal Next Gen umbrella, according to a May 2014 presentation Giles gave on the Next Gen program.
In Colorado, compliance improved dramatically, Rudolph said. In 2008, state inspection data showed 31 percent of facilities met all of their hazardous waste regulatory requirements, and in 2011, that number jumped to 84 percent.
The results have prompted the department to incorporate similar self-audit approaches to other areas, such as pharmaceutical disposal in nursing homes, Rudolph said.
Similarly, in New Hampshire, a small quantity generator must review its hazardous waste management processes, self-inspect its facility and certify to the state Department of Environmental Services it is in compliance every three years, according to the department's website.
The success in Colorado and New Hampshire has prompted Oregon to consider following suit, Brian Bowling, the laboratory program manager for the Oregon Department of Environmental Quality, told Bloomberg BNA. A required or recommended self-certification program could help the department address environmental violations by smaller facilities that the office can’t visit often, Bowling said.
Tennessee has conducted front-end outreach and education to make smaller facilities aware of evolving or new permit requirements or laws, which Bob Martineau, commissioner for the Tennessee Department of Environment and Conservation, told Bloomberg BNA falls under the Next Generation Compliance umbrella.
Many smaller facilities, such as dry cleaners and auto body shops, are unaware of certain environmental requirements they most follow, such as hazardous air pollutant rules, Martineau said. Alerting them to the requirements and showing them how to comply helps to improve compliance rates and, therefore, environmental quality, he said.
The outreach has improved the state's understanding of how many facilities should have permits in a given area and are producing pollutants or emissions, Martineau said.
The efforts are “another tool that helps lead to regulatory compliance, but it doesn’t show up in any statistic regarding enforcement,” he said.
The EPA has met with 10 states and plans to meet with more to discuss what actions those states have taken related to Next Generation Compliance, hoping to improve collaboration, the agency told Bloomberg BNA. The agency has conducted its outreach through the Environmental Council of the States and through other air and water state groups, the EPA said in an e-mail.
The EPA has offered to work with states on Next Gen projects in permits and other areas, it said.
Oregon decided after its meeting with the EPA that it wanted to work with the federal agency on the self-certification proposal and a separate proposal to use mobile remote sensor technology to gather data about fine particulate matter concentrations in metro areas, identifying areas with the most significant air quality problems and flagging areas of highest environmental risk, Bowling said.
Martineau said Tennessee requested to work on a pilot project with the EPA after a fall meeting, but the project's topic and timeline have yet to be determined.
The EPA also has solicited interest from states for an advanced monitoring project, the agency said. The EPA has sent or will send in 2015 infrared cameras to 11 states and other local agencies and will help the agencies with certification training.
The agencies involved are in Kentucky, Louisiana, Michigan, New Hampshire, New Jersey, New York, New Mexico, North Dakota, West Virginia, Hamilton County in Ohio, and Northwest/Puget Sound.
Incorporating Next Generation Compliance efforts or similar actions is important for states for a number of reasons, the EPA, state officials and a former EPA enforcement official told Bloomberg BNA.
States “do most of the implementation of setting standards, issuing permits, conducting technical assistance, inspections, and enforcement when needed” for rules and programs, the agency said, so “we anticipate that much of the benefits of Next Gen will come from using these concepts at the state level.”
Adam Kushner, a former director for the EPA’s Office of Civil Enforcement, told Bloomberg BNA the EPA's decision to conduct outreach with states is appropriate and while the best practices talks aren't nascent, they are critical.
States conduct roughly 95 percent of inspections and compliance investigations, and many are strapped for resources, he said. Any help the federal agency can offer in helping states to effectively identify tools, such as a self-disclosure program, and to efficiently allocate resources to encourage compliance is significant, Kushner said.
To the extent the EPA can encourage uniform practices and policies across states, that could be helpful to “promote levelness and fairness for [enforcement of] the regulated community,” he said.
However, states must recognize that Next Generation tools such as remote monitoring require significant upfront investments, and these steps don’t replace on-the-ground inspections or investigators, Kushner, now a partner at Hogan Lovells, said. Certain violations, such as new source review violations, would be difficult or impossible to identify without knowledgeable engineers sifting through historical and technical documents or visiting facilities, Kushner said. Funds for these investigators must remain intact, he said.
For Oregon, Next Generation Compliance approaches help to identify what the highest risks to the environment are and then prioritize efforts that drive the state’s enforcement efforts, Bowling said. This allows the state to address the most urgent needs first and efficiently use its resources, he said.
“Working collaboratively with these partners [states] will help us identify the best approaches and implement more effective environmental programs with limited resources, so we can better protect public health and environment,” the EPA said in its 2014-2017 Next Generation Compliance strategic plan, dated October 2014.
Meanwhile, Rudolph said that making it easier to comply than not comply with environmental requirements—whether or not the facility is already in compliance—helps to prevent environmental problems. While penalties play a role in incentivizing compliance, other actions, such as educating regulated entities, also can improve compliance rates.
Educating entities from power plants to dry cleaners on what they need to do to comply “is more than half the battle,” Rudolph said.
“Once the dam is breached you’ve got to clean it up,” Rudolph said. “But you want to make sure that the dam is never breached.”
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