In enforcement actions, EPA seeks appropriate injunctive relief to return violators to compliance, and addresses the root causes of noncompliance in an effort to minimize or eliminate the potential for repeat violations. On June 12, 2003, EPA's Office of Enforcement and Compliance Assurance (OECA) released guidance that addresses the use of environmental management systems (EMSs) as injunctive relief or supplemental environmental projects (SEPs) in settlements. The OECA guidance, which is entitled "Guidance on the Use of Environmental Management Systems in Enforcement Settlements as Injunctive Relief and Supplemental Environmental Projects," is effective immediately, and applies to settlement negotiations only.
Environmental Management Systems
Over the last 10 years, many companies have implemented an EMS to manage the environmental aspects and impacts of their activities. According to EPA,
"The most common framework for an EMS is plan-do-check-act, with the goal of continual improvement. EMSs provide organizations of all types with a structured approach for managing environmental and regulatory responsibilities to improve overall environmental performance, including areas not subject to regulation such as resource conservation and energy efficiency.... Based on the practical experience and knowledge [EPA has] gained, it is becoming clear that EMSs, when implemented diligently, can help improve environmental performance and foster other important benefits to organizations [Position Statement on Environmental Management Systems (EMSs), May 15, 2002]."
In its EMS position statement, EPA also states that it will act to promote the adoption of EMSs by a wide variety of organizations in a wide range of settings. According to the agency, EMSs should be designed and implemented to focus on achieving improved environmental performance and compliance, preventing pollution through source reduction, and continuing improvement.
Using EMSs in Enforcement Settlements
The June 12, 2003 guidance addresses the use of EMSs in enforcement settlements either as injunctive relief or as SEPs. In the guidance, OECA notes that it "... supports and will promote EMSs for industry, state and local governments, and federal facilities of all types and sizes, whether in compliance or determined to be in violation." EPA contacts for specific issues addressed by the guidance are provided in Table 1.
EMSs as Injunctive Relief in Enforcement Settlements
Since 1993, OECA and EPA regional offices have required defendants to develop and implement compliance-focused EMSs at 258 facilities across the United States. According to the June 12, 2003 guidance, an EMS with a compliance focus should be included as part of injunctive relief when the root cause of the violations is the lack of a systematic approach to identifying, understanding, and managing a regulated entity's environmental obligations.
Even when a compliance-focused EMS is not needed, OECA notes that specific EMS elements or requirements should be part of injunctive relief when those elements or requirements are required by law or regulation. The guidance also allows EPA to require violators to enhance an existing EMS, or management program, if violations occur at a facility despite the presence of an EMS, or management elements that are common precursors to a formal EMS (e.g., policies, training programs, corrective action...