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Next Generation Compliance—EPA Strategy to Delegate Enforcement to Third Parties?

In a recent January 2015 Memorandum to EPA’s Regional Enforcement Managers from Cynthia Giles, EPA Assistant Administrator for Enforcement, EPA is touting its Next Generation Compliance strategy as “an integrated strategy” intended to “bring together the best thinking from inside and outside EPA.” In particular, EPA is seeking to include in civil enforcement settlements “advanced monitoring” tools (in some instances, untried) together with electronic reporting disclosing the results of such monitoring. Monitoring results are supposed to be made readily available to the public at large and your competitor next door. To conserve EPA resources, EPA also intends to include in such settlements verification by third parties of the settling parties’ compliance with the settlement terms. Services of such third-party certifiers would be paid by the settling parties. Advanced monitoring tools together with real time field monitoring results obtained without careful laboratory analysis may yield unvalidated and therefore questionable data. As stated on page 5 of the Giles Memorandum, those data would be made readily and immediately available to “impacted community members and neighboring facilities” for the sake of “transparency.”

In fact, EPA envisions the public and your next door neighbor to become participants in EPA enforcement actions. Using advanced monitoring tools with results reported electronically in real time is one thing, but making such unvalidated data readily accessible to untrained community members and a company’s competitors to add additional enforcers to the enforcement process is quite another. EPA, in essence, is delegating its inspection, investigation, and information collection and review obligations—all phases of the regulatory enforcement process—to third parties. This delegation appears to be a significant change in the regulatory enforcement process worthy of careful review through the customary public notice and review process otherwise required by the Administrative Procedures Act. But so far EPA has merely issued guidances and other pronouncements presenting as a done deal Next Generation Compliance and its attendant delegation of enforcement authority and responsibilities to third parties outside of the executive branch. Perhaps all of this is an attempt by the agency to seek support from the regulated community for an increase in EPA enforcement resources by creating the specter of uncertain third-party enforcement for parties accustomed to the certainty of the EPA enforcement process.