Introduction

            There is significant skepticism about EPA’s inspection and enforcement activities in the current administration. Certainly, EPA’s priorities shifted after the second inauguration of President Trump; however, EPA is still flexing its enforcement muscle. This is particularly true for its “core enforcement programs,” which target hazardous air pollutants affecting human health; “high-risk” facilities handling extremely hazardous substances; hazardous wastes; and unpermitted discharges to surface waters.^[1] In the second quarter of 2025, EPA Region 10, which covers Idaho, alone closed 19 civil enforcement cases brought under six separate laws.^[2]

This article summarizes EPA’s broad enforcement authorities and some of the compliance obligations that EPA emphasizes for enforcement. This article offers guidance on preparation and practices for navigating an EPA inspection. Ultimately, the best preparation is a good compliance program that catches and corrects potential violations before EPA comes knocking.

Environmental Law 101

In the 1970s, Congress passed multiple laws to protect our environment and public health. These laws vest the EPA with authority to regulate facilities big and small that engage in regulated activities, including large manufacturing plants, [3] energy facilities,[4] apartment complexes,[5] and municipalities.[6] Environmental compliance is triggered by activities (e.g., discharge of pollutants) and site conditions (e.g. the presence of hazardous materials or wetlands), not necessarily the type of business. The term “facility” is used as an umbrella term for locations that are regulated. Laws limit the discharge of pollutants and hazardous substances into our environment. Laws afford EPA broad enforcement authority, allowing on-site inspections, data collection, and remote investigations that can result in significant penalties and corrective actions.

Examples of the laws enacted over fifty years ago are the Clean Water Act (“CWA”), the Clean Air Act (“CAA”), and the Resource Conservation and Recovery Act (“RCRA”). The CWA prohibits the discharge of a pollutant to a water of the United States without first obtaining a discharge permit.[7] The CAA requires facilities to obtain a permit before “constructing” or installing equipment that would emit pollutants to the atmosphere and imposes technology requirements on many types of pollution emitting equipment.[8] The RCRA requires facilities that generate, store, treat, or dispose of hazardous waste to manage hazardous wastes according to prescribed standards.[9] Laws may impose technology requirements, work practice standards, recordkeeping, reporting, and notification requirements to demonstrate compliance. Generally, these laws are enforceable by EPA and state regulators. Citizens groups can enforce them too.

Environmental laws carry both civil and criminal penalties. For civil violations, these laws impose strict liability.[10] To be liable for civil enforcement, the owner or operator need not have knowledge of the violation, nor be negligent.[11] Violations can trigger large civil penalties. For example, the CWA authorizes a maximum civil penalty of $59,114 per day of violation.[12] Environmental laws impose criminal penalties for both negligent and knowing violations.[13] Negligent violations are generally a misdemeanor punishable by significant fines and up to a year in prison. Knowing violations are felonies punishable by fines and multiple years of prison.[14] A violator need not know they were violating the law, only that they were committing the violative act.[15]

            Environmental laws apply to industrial facilities that generate pollution during manufacturing. These regulated entities must comply with emissions and discharge limitations, pollution reduction obligations, and significant documentation requirements.[16] Environmental laws also apply in unexpected places and ways. Examples include: 

• The owner of an apartment building, built in 1970, wants to remodel several apartments. If original building materials contain asbestos, the owner is required to submit a notice to EPA prior to disturbing any asbestos-containing material and follow certain work practice standards when performing demolition work.[17] These requirements stem from the CAA, which designates asbestos as a hazardous air pollutant.[18]
• A small auto mechanic is prohibited from removing or altering emission control units on diesel trucks, including personal vehicles, and is also prohibited from installing what are called “defeat devices” which bypass or render inoperative emission control systems.[19] These prohibitions come directly from the CAA requirements for mobile sources.[20]

 While these activities do not require permits to operate, EPA actions against small business violators yield settlements that cost tens of thousands of dollars in penalties.

Recordkeeping Is Essential

            In addition to compliance with pollution reduction requirements, entities must keep records to document compliance. Recordkeeping is the foundation for compliance assurance. Some laws require submitting records to EPA, allowing EPA to evaluate a regulated entity’s compliance status without an on-site inspection.

            Records must be truthful, accurate, and complete. EPA fined an all-terrain vehicle importer $686,000 related, in part, to its inaccurate and missing records.[21] EPA relies on records, or the absence of records, as evidence in enforcement actions. Records submitted to the agency are publicly available under the Freedom of Information Act, 5 U.S.C § 552.[22] Public records can serve as the basis for a citizen suit, which is an enforcement action initiated by a concerned group or individual. Knowingly providing false information, or altering or failing to file any required records, is a criminal violation subject to imprisonment for up to two years.[23]

 EPA at the Gate

            EPA has broad authority to enter a facility to evaluate compliance with environmental laws.[24] Inspections can be announced, meaning EPA schedules them ahead of time, or unannounced, meaning EPA shows up without warning. EPA can use contractors to conduct inspections and special agents who investigate criminal allegations.

            EPA inspectors are assigned by region or industry type, so a facility may get to know their EPA inspector. Inspectors may be friendly, but they are not friends. Inspectors are looking for violations. The inspector’s job is to ensure compliance, not to offer compliance assistance. Past uneventful visits do not predict future inspections, and a future inspector may find something that the last one missed.

An inspection is a formal legal action, no matter how friendly the inspector may present. There are a few guiding principles to follow when EPA comes knocking:

Execute a communications plan. The plan should identify (and include directions for security staff, if any) who is the primary contact when EPA (or any other inspector) arrives. This may be the site manager, site environmental professional, or legal department. The plan should prescribe a clear chain of communication and identify an on-site point of contact who will be responsible for interacting with EPA. Clear communication is essential.

            Allow EPA access. Environmental laws grant broad inspection authority to EPA. While an owner or operator can deny EPA inspectors access, note that an administrative search warrant is easily obtainable.[25] Delaying EPA offers no advantage to the company and will cause the inspectors to approach the facility with more suspicion when they return. Access is inevitable.

Treat EPA inspectors like other visitors. Collect credentials (typically business cards) and determine the reason for the visit (e.g., routine inspection, responding to a complaint, collecting data). Provide EPA inspectors with safety training provided to other visitors before entering the facility. Designate a company representative to be the “tour guide” and point of contact for questions. Answer questions truthfully and directly, providing only relevant information. Importantly, “I don’t know” is a fine response. The “tour guide” can offer to provide a response to EPA’s question following the inspection. Control the visit to ensure safety and responsiveness.

            Keep an inspection journal. Note the areas visited, the questions asked, and any comments of interest. These notes will help assess risks following the inspection. Additionally, the “tour guide” can request copies of all photos and videos taken by the inspector and take the same photos and videos.[26] If the inspector takes samples, facility staff should either request a split sample or be prepared to take their own samples. If the inspector requests documents, keep a copy of each for review after the visit. Do not provide documents labeled confidential or attorney-client privilege without review by counsel. Document the inspection with notes, photos, and copies to facilitate evaluation of risk.

            Request a closing conference. A closing conference allows the facility staff and inspector to review findings before the inspector departs the facility. If there were any unanswered questions raised during inspection, the “tour guide” can review those outstanding items, request that EPA clearly restate the question, and agree on a timeline for providing a written response. Review the findings with the inspector at the closing conference to highlight items of concern and follow-up. Use the closing conference to gather real time feedback. If the inspector identifies a deficiency during the inspection that can be corrected promptly, do so before the closing conference

            Debrief promptly with counsel. Organize information collected during the inspection and debrief with facility management and legal counsel while impressions and interactions are fresh. Follow-up from the inspection should involve counsel and can include: a litigation hold for potentially relevant records, preparation of responses to EPA, and a plan to correct noncompliance promptly. If the corrective action requires significant work, begin developing a plan and schedule. Act on findings with purpose and promptness.

            In addition to its on-site visit inspection authority, EPA has authority to send information collection requests (“ICR”) to evaluate compliance with environmental laws remotely.^[27] EPA may provide a detailed ICR before or during the inspection. EPA may digest the information it collected during the inspection and send an ICR weeks or months after the inspection. Responding to an ICR is a formal legal action, and the facility should engage counsel in responding to the ICR to reduce potential liability.

Post-Inspection Penalty Negotiation

            The inspection is over. The ICR response is submitted. Now you wait. EPA may take several months or more before following up on an inspection or an ICR.

            If EPA did not identify any violations or did not identify any actionable violations, you may never hear anything more. In this instance, no news is good news. If EPA identified actionable violations, then the facility will receive a notice of violation and an opportunity to confer, prior to EPA filing a formal complaint.^[28]

            EPA will not express a penalty demand until the facility agrees to corrective actions that achieve compliance. Cooperating through this initial corrective action stage will influence the ultimate penalty demand. If the facility is cooperative, EPA can exercise discretion to reduce the penalty. If the facility is slow to come into compliance or slow to respond, then the initial penalty demand increases. EPA drives compliance first, then negotiates its penalty demand second. 

            EPA’s negotiated penalties are governed by agency policies, each with its own specific factors.^[29] These policies provide a standardized framework to calculate the civil penalty. Although the specific policy factors differ by statute and violation type, each comprise the same general elements:

• Economic Benefit: This factor considers the violator’s avoided cost from delaying compliance. Examples of economic benefit include savings from the delay in installing required control equipment, avoidance of monitoring costs, or avoidance of costs to prepare a report or obtain a permit. This element of EPA’s penalty demand levels the playing field for entities that invest in compliance timely.
• Gravity: The gravity component reflects statutory factors outlined for civil penalties, such as 1) the potential for harm from the violation, 2) the extent of deviation from the regulatory requirements, and 3) the history of compliance. These elements assess penalties commensurate with the violator’s environmental impact(s).
• Size of Violator: Some penalty policies adjust the demand based on the size of the violator. This element is based on the net worth of violator. The larger (financially) the violator, the larger the penalty. This factor calibrates the penalty to the entity’s financial position.
• Cooperation: EPA can reduce most penalties by up to 30 percent if the alleged violator promptly cooperates, takes corrective action, and expeditiously reaches settlement. This factor encourages cooperation.
• Other Factors: EPA can adjust the penalty based on the degree of willfulness or negligence and the severity of environmental damage. These factors give agency staff discretion to increase or decrease the penalty based on circumstances.
• Ability to Pay: EPA can further reduce the penalty if the demand threatens to put the violator out of business. The ability to pay analysis requires the alleged violator to provide detailed financial records for EPA’s review. When considering whether to make an ability to pay argument, it is important to remember that the question is not whether there will be financial hardship but whether the company will go out of business. This analysis extracts a penalty for noncompliance without jeopardizing the viability of a business.

EPA’s first penalty offer is not its final offer. In particular, the gravity component provides an ample set of levers to pull to during negotiations. EPA’s penalty demands can typically be reduced up to 50 percent, with negotiation of the penalty policy factors and presentation of new information that the agency did not consider initially. A significant portion of this reduction can come from the cooperation of good actors.

Preparation Enhances Performance

            The best inspection is the one that results in no violations, and the best penalty negotiation is the one you never have. To minimize the risk of EPA enforcement, shore up the facility’s compliance program with the following activities.

            Identify the environmental laws and regulations that apply and develop a regular environmental audit program to self-police and detect gaps. A good environmental audit follows a checklist of the applicable requirements. Check for complete records and walk around the site to ensure the facility is physically in compliance. The audit can be conducted under attorney-client privilege to ensure that employees feel free to fully identify potential compliance gaps, and to limit dissemination.

            Revisit the facility’s housekeeping program. If an inspector enters a tidy, well-maintained facility, the inspector may presume the underlying requirements are also well maintained. Housekeeping is a surrogate for compliance focus. Moreover, many violations stem from delayed, deferred, or ignored maintenance. Housekeeping helps catch small deviations early. 

            Automate recordkeeping, if possible. Deploy a practical system that prompts appropriate personnel to perform compliance tasks timely and to document the task in a designated workflow or location on your system. Invest in compliance, education, and proactive tasks that mitigate risk and support compliance. Then when EPA arrives, the on-site team is prepared, and the facility will show well.

Conclusion

While EPA’s enforcement priorities shift, their authorities remain constant and broad. Environmental laws apply broadly to large and small businesses that are required to comply with permitting, pollution standards, and recordkeeping tasks. Continue to invest in compliance and education to minimize risk of enforcement and the related penalties. Engage employees and counsel, as appropriate, to prepare and to respond when EPA comes knocking.

Krista K. McIntyre, Stoel Rives LLP, represents companies in a variety of economic sectors, including mining, forest products, agribusiness, energy production, chemical processing, and general manufacturing. Clients rely on Krista for permitting, compliance assistance, compliance auditing and enforcement defense in matters involving federal, state, and local pollution control requirements. Krista’s particular expertise covers air quality, release reporting, and agency enforcement. Her practice is multi-state and across EPA Regions.

Wade C. Foster, Stoel Rives LLP, assists clients subject to federal and state environmental laws with enforcement defense, complex environmental litigation, permitting, and compliance. Wade’s substantive areas of focus include water quality, water rights, air quality, and mining.

^[1] Memorandum from Jeffrey A. Hall, Acting Assistant Adm’r, EPA, to Reg’l Adm’rs et al. (Mar. 12, 2025), https://www.epa.gov/system/files/documents/2025-03/necimemo-20250312.pdf.

^[2] News Release, EPA, EPA Region 10 Enforcement Cases April-June 2025 (July 31, 2025), https://www.epa.gov/newsreleases/epa-region-10-enforcement-cases-april-june-2025.

[3] See, e.g., Consent Decree, United States v. E.I. Du Pont De Nemours, Case No. 1:21-cv-00516 (E.D. Tx Oct. 13, 2021) (ordering chemical manufacturer to pay a $3.1 million dollar penalty for violations of multiple environmental laws).

[4] See, e.g., Consent Decree, United States v. Hilcorp Energy Co., Case No. 1:24-cv-01055 (D.N.M Oct. 17, 2024).

[5] See 40 C.F.R. § 61.145 (1993).

[6] See, e.g., Consent Decree, United States v. City of Cahokia Heights, Case No. 3:24-cv-02591 (S.D. Ill Dec. 10, 2024) (ordering city to pay $30,000 in penalties and spend $30 million in compliance measures to resolve alleged CWA violations due to sanitary sewer overflows).

[7] 33 U.S.C. § 1311(a); see also United States v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005).

[8] 42 U.S.C. §§ 7401, et seq.

[9] 42 U.S.C. §§ 6901 et seq.; see also Complaint, United States v. Stericycle, Inc., Case No. 1:25-cv-00498 (S.D.N.Y. Jan. 17, 2025) (alleging hazardous waste transporter committed multiple RCRA violations).

[10] See Pound v. Airosol Co., 498 F.3d 1089, 1097 (10th Cir. 2007).

[11] See Id.

[12] The CWA originally authorized a penalty of $25,000 per day of violation, which is regularly adjusted for inflation. 90 Fed. Reg. 1375 (Jan. 8, 2025); 40 C.F.R. § 19.4 (2025).

[13] See, e.g., 33 U.S.C. § 1319(c).

[14] The environmental laws typically cap the maximum sentence for knowing violations at 2 to 3 years per violation, depending on the statute. Violations can quickly accrue, resulting in a very high total maximum sentence. For instance, a knowing violation of a daily discharge limit for even a week would result in seven discrete violations.

[15] See United States v. Lucero, 989 F.3d 1088, 1097 (9th Cir. 2021).

[16] See supra notes 8 – 10.

[17] See 40 C.F.R. § 61.145 (1993).

[18] 42 U.S.C. § 7412(b).

[19] EPA Off. of Enf’t & Compliance Assurance, Enforcement Alert: Aftermarket Defeat Devices and Tampering are Illegal and Undermine Vehicle Emissions Controls (Dec. 2020), https://www.epa.gov/sites/default/files/2020-12/documents/tamperinganddefeatdevices-enfalert.pdf.

[20] 40 C.F.R. Part 85; see also United States v. EZ Lynk, SEZC, No. 24-2386-CV, 2025 WL 2405273, at *1 (2d Cir. Aug. 20, 2025).

[21] Taotao, USA, Inc., EPA, AED/MSEB No. 7872, Administrative Settlement Agreement (Aug. 2013), https://www.epa.gov/sites/default/files/2013-08/documents/loncin-agr.pdf.

[22] See 42 U.S.C. § 7414(c). The only exceptions to public disclosure are for trade secrets or confidential business information, and both exceptions are narrow. See 40 C.F.R. § 2.201, et seq.

[23] See 42 U.S.C. § 7413(c)(2).

[24] See, e.g., 42 U.S.C. § 7414.

[25] See Nat’l-Standard Co. v. Adamkus, 881 F.2d 352, 361 (7th Cir. 1989) (“In order for an administrative warrant to issue, (1) there must be specific evidence of an existing violation, or (2) the search must be part of a general neutral administrative plan.”); Memorandum from Thomas L. Adams, Jr., Assistant Adm’r, EPA, to Reg’l Adm’rs I-X and Reg’l Couns. I-X (June 5, 1987), https://www.epa.gov/sites/default/files/2013-09/documents/cont-access-mem.pdf.

[26] If the photos or videos are of proprietary process equipment or other trade secret information, facility staff should inform the inspector that the photos contain confidential business information and seek protection of that information.

^[27] See 42 U.S.C. § 7414(a)(1).

^[28] EPA may also refer particularly complex, large, or egregious cases to the Department of Justice. Whether the matter is handled administratively or referred to the DOJ depends on the severity of the violations, the size of the potential penalty, and how cooperative the facility has been with EPA. Most environmental laws set a cap on the size of a penalty EPA can obtain administratively; this cap is around $300,000. EPA can obtain a waiver from DOJ to bring administrative enforcement actions seeking larger penalties.

^[29] See, e.g., EPA,Clean Air Act Stationary Source Civil Penalty Policy (Oct. 25, 1991), https://www.epa.gov/sites/default/files/documents/penpol.pdf; Memorandum on Revisions to the RCRA Civil Penalty Policy from John Peter Suarez, Assistant Adm’r, EPA, to Reg’l Couns., Regions 1-10 et al. (June 23, 2003), https://www.epa.gov/sites/default/files/2020-05/documents/june2003rcracivilpenaltypolicyamended050620.pdf.