EPA is in the process of rolling out Next Generation Compliance, or NextGen, in an effort to make its programs more effective, facilitate compliance, and, ultimately, enhance environmental benefit.  But in many ways, NextGen seems poised to expand enforcement against the regulated community.

NextGen consists of five interconnected components:

  • More Effective Regulations and Permits
  • Advanced Monitoring
  • Electronic Reporting
  • Expanded Transparency
  • Innovative Enforcement

EPA is already using the components of NextGen to guide enforcement actions and settlements around the country (and in fact, EPA case teams have been directed to consider and include NextGen compliance tools in civil judicial and administrative settlements).  These NextGen compliance tools often involve the use of new technology or other advanced practices that are not commonly used or included in settlements.  Specifically, NextGen compliance might include:

  • Advanced monitoring, including the use of technology that is not yet in widespread use in a particular sector or regulatory program;
  • Independent third party verification of a settling party’s compliance,
  • Electronic reporting, and
  • Public accountability through increased transparency of compliance data.

EPA may also try to expand the use of NextGen compliance tools in the settlement context beyond the allegedly violating facility.  For example, if EPA is asking for advanced monitoring in the context of a settlement, there is a good possibility that it will ask for that advanced monitoring on a company-wide (or geographically relevant) basis.

EPA plans to use the increased data gathered under NextGen to develop data analytics tools so that it can evaluate performance on an industry-by-industry basis.  It also plans to develop predictive analytics in an effort to identify potential future risks.  It is not clear how EPA intends to use these analytics tools, or whether they will be available to the public, but it is reasonable to assume that they will be used to guide enforcement priorities.

EPA has developed a Strategic Plan for implementation of NextGen through 2017.  While the mechanics of NextGen are still being developed and implemented, one thing is certain – if you are involved in a compliance or enforcement matter with EPA, you can be sure that NextGen will influence the regulator’s goals.