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Environmental Justice and Enforcement Guidelines

Section 4

4.0 Environmental Justice and Enforcement Guidelines

4.1 Identifying Potential Environmental Justice Cases
4.2 Implementing Environmental Justice in the Enforcement Process

4.2.1  Initiation of Enforcement Actions
4.2.2  Processing of Enforcement Actions
4.2.3  Negotiation and Settlement of Enforcement Actions
4.2.4  Supplemental Environmental Projects
4.2.5  Actions Involving Indian Nations

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4.0 Environmental Justice and Civil Enforcement Guidelines

These guidelines are applicable to civil regulatory enforcement. They are intended to assist the Region's enforcement staff to (i) identify EJ communities; (ii) recognize and determine when EJ issues may arise in a particular civil regulatory enforcement matter; and (iii) consider in addition to enhanced public participation other options to address EJ concerns in the initiation, processing, and resolution of an enforcement matter. Actual EJ communities, by definition, bear an unfair burden due to pollution, and affected residents and children may experience disproportionately high and adverse health effects. Therefore, it is important to provide equitable inspection coverage in low-income and minority areas. It is always important to return violating facilities to compliance as quickly as possible.

The Region will continue to provide compliance and enforcement information to those communities located in low income and/or minority areas. In particular, the Region will coordinate on-site compliance visits and seminars to specifically address EJ concerns. Further, EJ concerns will be considered in targeting single and multimedia inspections. Notwithstanding, the Region will respond to complaints from potential EJ communities, as well as all segments of the population, with the appropriate inspection.

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4.1 Identifying Potential Environmental Justice Cases

Enforcement matters, including those which arise in environmental justice communities often present unique challenges. It is also important for enforcement personnel to bear in mind that the level of community interest may vary depending upon the specifics of the case and the nature of the potential violations. There is no single technique, appropriate, in every matter for determining how to keep community members informed and solicit their views. It is expected that by utilizing existing enforcement standard operating procedures and these guidelines, Regional enforcement staff should, if appropriate:

Enforcement staff should conduct an initial screening (See Section 2.2.1) during the preparation of each regulatory civil enforcement matter to determine if one or more of the following criteria are met:

Where either of the above two criteria are met, or where the enforcement action involves a facility in an area where environmental justice concerns have been previously expressed, enforcement staff should either (i) conduct the analysis as provided in Section 2.2, or (ii) where appropriate, to expedite the resolution of the enforcement matter, treat the community of concern as if it were determined to be an actual EJ community.

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4.2 Implementing Environmental Justice in the Enforcement Process

Where one or more of the above criteria are met, enforcement personnel should consider enhanced public outreach throughout the three stages of the enforcement process as discussed below. It is recognized that not all cases will be the same. Therefore, the enforcement staff should exercise judgement concerning the kinds of activities that are appropriate to the case, recognizing their responsibility under the EO and Agency's policy to incorporate EJ into all aspects of EPA's programs when authorized to do so.

4.2.1 Initiation of Enforcement Actions

EPA often issues a press release to announce a major enforcement action. For EJ matters, the enforcement staff should consult with CD as to the appropriateness of providing additional information to local, affected communities, taking into account both the enforcement sensitivities related to the action and the level of community interest. At the initiation of enforcement actions that involve EJ concerns, in addition to coordinating with the EJ Coordinator, enforcement staff should consider:

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4.2.2 Processing of Enforcement Actions

After enforcement actions have been initiated, the affected community and other interested persons or groups should be kept informed of the progress of an enforcement action, as appropriate and pursuant to the Communications Plan developed pursuant to Section 5.2. For cases that reach a hearing (either administrative or judicial), the enforcement staff should, as appropriate, keep concerned citizens informed of significant milestones in the litigation process.

4.2.3 Negotiation and Settlement of Enforcement Actions

Settlement discussions are a particularly sensitive phase with respect to community outreach. The specific terms of settlement discussions are generally confidential and ordinarily should not be discussed with the general public. Community input will be solicited, as appropriate, in enforcement action resolutions as discussed below, particularly if major SEPs (Section 4.2.4) or compliance activities may be involved.

To the extent possible and appropriate in a given case, the enforcement staff should seek to include in the settlement of the action provisions benefiting the community, such as:

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4.2.4 Supplemental Environmental Projects (SEPs)

The Agency's 1998 "Supplemental Environmental Projects Policy" actively encourages the use of creative settlement approaches in enforcement actions. Such approaches may have particular applicability where violations have been identified in communities disproportionately impacted by environmental problems. As always, the enforcement staff have discretion in determining how to settle cases consistent with applicable EPA policy and guidance. The SEP policy encourages the Regions to obtain SEPs which promote pollution prevention and remedy environmental damage to reduce long-term exposures within affected communities.

The enforcement staff should encourage, whenever appropriate in discussions with the violating facility, the development of SEPs. Where appropriate, the affected community should be involved in development of the SEPs. Any SEP should be developed in accordance with the Agency's SEP Policy. The degree of community involvement will depend on the range of potential allowable SEPs feasible for the enforcement action.

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4.2.5 Actions Involving Indian Nations

Whenever a potential enforcement action involves a federally-recognized Indian Nation in any way, in addition to referencing this Interim Policy, enforcement staff should be advised that appropriate Agency guidance must be followed to ensure that EPA acts consistent with its trust responsibility and "government-to- government" relationship with the Indian Nations. This policy applies when a facility is:

Situations involving any of these factors should be brought to the immediate attention of Region 2 Indian Coordinator .

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