Companies in a wide range of industries are subject to the oversight of the United States Environmental Protection Agency (EPA). The EPA enforces numerous environmental laws, environmental regulations, and executive orders to address violations that pose threats to human health and the environment—and, for companies that need to comply, noncompliance with these federal requirements can lead to inspections, investigations, and steep penalties. Along with administrative and civil penalties, these even include criminal penalties in some cases.

As a result, a comprehensive approach to compliance with these regulatory requirements is essential. With environmental concerns continuing to play a central role in political discourse, this is more true than ever in 2024—and this is likely to remain the case in the years to come.

“While gaining a comprehensive understanding of a company’s environmental compliance obligations is not easy, it is extremely important. The EPA actively enforces companies’ obligations, and noncompliance can have serious consequences not only for companies, but in many cases for their owners and executives as well.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

While the EPA enforces numerous environmental protection requirements and prohibitions, not all of these requirements and prohibitions apply to all companies. With that said, companies cannot afford to make assumptions about which laws, regulations, and executive orders may or may not apply. Instead, informed decision-making is essential, and investing in informed decision-making will pay dividends long-term.

10 Key Areas of Environmental Enforcement and Compliance for 2024 (and Beyond)

Taking a comprehensive approach to EPA compliance starts with gaining a clear understanding of the laws, federal regulations, and executive orders that apply based on a company’s specific operations and environmental risks. While this list is far from exclusive, here are 10 key areas of concern:

1. Clean Air Act (CAA) Compliance

The Clean Air Act (CAA) regulates stationary sources of air pollution in the United States. It establishes different requirements for “area sources” and “major sources,” with an “area source” being defined as any stationary source of pollution that does not meet the qualifications for classification as a “major source.” Pollutants covered under the CAA include carbon monoxide, ground-level ozone, lead, nitrogen dioxide, particulate matter, and sulfur dioxide. Of particular concern for many companies is the inclusion of particulate matter under the CAA. As the EPA explains, while particulate matter includes microscopic particulates from industrial operations, it also includes “ dust, dirt, soot, [and] smoke.”

2. Clean Water Act (CWA) Compliance

As summarized by the EPA, the Clean Water Act (CWA) “establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.” Similar to the CAA, the CWA applies to companies in a wide range of industries, including many companies that would not generally consider themselves to be point sources of water contaminants. In many cases, while discharge is not strictly prohibited by the CWA, companies must obtain a National Pollutant Discharge Elimination System (NPDES) permit in order to comply with the law.

3. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Compliance

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) gives the EPA the authority to mandate that companies clean up environmental contaminants. While some of the EPA’s uses of CERCLA are well-known, many of its enforcement efforts under the statute go under the radar. Here, too, companies in numerous industries can find themselves dealing with the EPA; and, when a company receives an information request or notice letter under CERCLA, it must respond appropriately in order to mitigate its risks and costs.

4. Endangered Species Act (ESA) Compliance

While the Endangered Species Act (ESA) imposes numerous prohibitions, some of its most impactful provisions for companies are its prohibitions pertaining to pesticides. Along with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), discussed below, the ESA prohibits use of pesticides in ways that are likely to jeopardize endangered species, and the EPA’s Office of Pesticide Programs (OPP) is active in enforcing compliance. As urban sprawl and other issues continue to threaten more species in the United States, ESA enforcement is continuing to play a greater role in the EPA’s enforcement regime.

5. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Compliance

Under FIFRA, the EPA regulates the import, manufacture, sale, storage, and use of nearly all pesticides in the United States. Pesticides are among the limited number of products that are subject to EPA registration; and, to secure registration, importers and manufacturers must be able to affirmatively demonstrate that a pesticide “will not generally cause unreasonable adverse effects on the environment.”

But, requiring registration is not the EPA’s only means of enforcement under FIFRA. All types of companies can face scrutiny for improperly storing and using both registered and unregistered pesticides. As a result, FIFRA compliance is a key aspect of EPA compliance for many companies as well.

6. Food Quality Protection Act (FQPA) Compliance

As its name suggests, the Food Quality Protection Act (FQPA) focuses on ensuring the safety of the nation’s food supply. The EPA and U.S. Food and Drug Administration (FDA) address separate aspects of food safety, with the EPA focusing on the potential human safety risks associated with environmental contamination. For companies that are subject to the EPA’s oversight in other areas, addressing the FQPA’s requirements and prohibitions will often be a necessary component of EPA compliance as well.

7. Resource Conservation Recovery Act (RCRA) Compliance

The EPA uses the Resource Conservation Recovery Act (RCRA) to regulate hazardous waste “from cradle to grave.” Under the RCRA, the EPA conducts inspections to assess facilities that generate, process, and store hazardous waste, and it conducts investigations in response to accidents, spills, and other exposure events. Inspections and investigations can both present substantial risks, and companies that may be at risk of facing the EPA’s scrutiny need to ensure that they are prepared.

8. Safe Drinking Water Act (SDWA) Compliance

The EPA enforces the Safe Drinking Water Act (SDWA) in parallel with the FQPA. Companies conducting any activities that have the potential to impact the U.S. drinking water supply—from discharging runoff into the environment to participating in public water systems—need to ensure strict compliance with the SDWA. Recently, one of the EPA’s primary focuses under the SDWA has been on preventing the introduction of per- and polyfluoroalkyl substances (PFAS) into the water supply.

9. Toxic Substances Control Act (TSCA) Compliance

The Toxic Substances Control Act (TSCA) covers potential environmental contaminants that are not covered under statutes (in addition to some that are). The TSCA imposes various testing, recordkeeping, and reporting requirements—in addition to restricting the manufacture and use of certain types of environmentally hazardous substances. Some examples of substances regulated under the TSCA include asbestos, lead, polychlorinated biphenyls (PCBs), and radon.

10. Executive Order (EO) Compliance

Along with the statutes discussed above (among many others), the EPA also actively enforces several Executive Orders (EOs) focused on environmental protection. These EOs focus on issues ranging from disproportionate impact on minority populations to environmental contamination affecting the U.S. energy grid and other energy systems.

Tips for Implementing a Comprehensive EPA Compliance Strategy

To effectively address these (and other) areas of EPA compliance in 2024 and beyond, companies must work with their environmental counsel to ensure that they are giving due consideration to all pertinent prohibitions, restrictions, and requirements. Here are some tips for doing so:

• Conduct a comprehensive environmental compliance needs assessment. All companies should begin by conducting a comprehensive assessment of their environmental compliance obligations. This is essential for determining what compliance measures are (and aren’t) necessary—which both facilitates effective compliance and avoids unnecessary costs.
• Assess environmental compliance options, costs, and alternatives. With a comprehensive understanding of their obligations, companies can then focus on assessing their compliance options, costs, and alternatives. While companies can build compliance mechanisms into their existing operations in many cases, in others a more compliance-based approach may be necessary.
• Work with the company’s EPA counsel to develop the necessary policies, procedures, and protocols. All companies that are subject to the EPA’s oversight need custom-tailored policies, procedures, and protocols. Not only are these essential for effective environmental compliance management, but they are also essential for demonstrating compliance to the EPA when necessary.
• Take a proactive and documentation-focused approach to ongoing environmental compliance management. Along with generating compliance documentation at the outset, companies also need to focus on generating documentation of their successful compliance efforts on an ongoing basis. This is the only way to effectively assess the efficacy of their compliance efforts, and this is essential for withstanding EPA scrutiny as well.

• Ensure that the company is prepared to work with the EPA as necessary. When facing scrutiny from the EPA, working with—rather than against—the agency is often (though not always) the best approach. Companies that are subject to the EPA’s oversight should have documented procedures and a chain of command for responding to EPA inquiries, inspections, and investigations, and they should have a relationship with experienced outside environmental counsel who can step in to communicate with the FDA on their behalf as necessary.