Harvesting low-hanging fruit

EPA’s actions can be predicted by its statements and planning activity. During the 2008-2010 planning cycle, EPA stated that it would focus on three main areas of the storm water program, including ready-mixed concrete with crushed stone and sand and gravel operations. Clearly, these industries, and the others who fit into similar operational categories, should be on notice and take action to reduce their risks.

EPA will also look for “big ticket,” high-profile enforcement actions that are press-worthy and involve large civil penalties, costly injunctive relief, pollution mitigation, and expensive supplemental environmental projects. In addition to making a media splash, EPA believes that these types of enforcement actions reduce the rate of non-compliance. 

EPA will also step up the number of inspections and expedite enforcement of CWA violations, focusing on clusters of facilities whose non-compliance is adversely impacting already impaired waters. If your sites are near impaired waters, you should be on notice of increased EPA enforcement risks.

 Finally, EPA will focus on areas previously targeted under its National Priority program. One of EPA’s national priorities is the mineral processing and mining sector. While EPA intended to use the Resource Conservation and Recovery Act (RCRA) as its tool for implementing this enforcement priority, in its most recent strategy summary, EPA indicated it will evaluate other tools, including the CWA, to address environmental risks. 

From 2004 to 2007, EPA completed inspections at 20 phosphoric acid facilities, 25 other mineral processing facilities, and five mine sites. Familiarity with the sector as a result of these inspections, combined with EPA’s belief that the “mineral processing and mining sectors generate more wastes that are corrosive or contain toxic metals than any other industrial sector,” indicate that EPA continues to aim enforcement attention on this sector. We predict that information gleaned from previous RCRA inspections, coupled with EPA’s desire to use the CWA for this purpose, will lead to enhanced CWA enforcement in the industrial minerals industry in the near future.

Mitigating enforcement risks

Given the increased enforcement risks, target facilities should make every effort to assure compliance with permitting requirements and institute programs to remain in compliance. 

Operators should engage in a permit compliance assessment, preferably under the direction of counsel, looking back over a minimum of the past five years, in order to gauge the risk of future enforcement action.