The use of unmanned aerial systems (“UAS,” or more commonly drones) to collect data is gaining considerable attention in the agricultural, manufacturing, real estate and other industries.  In addition to photographic data, infrared information and other remote sensing technologies are under development and testing.  The collected data will provide important and powerful information to provide significant efficiency and improvement of various operations in these industries.  Owners and operators of operating sites, including farms, manufacturing sites, raw material and fuel storage, and others should be aware that data collected by UAS may be subject to review by federal and most state environmental agencies and could be used in enforcement proceedings.  EPA could also utilize UAS directly, or hire contractors to use UAS, for enforcement investigation purposes.

EPA’s Authority to Access Information

The Clean Air Act (“CAA”), Clean Water Act (“CWA”), and the Resource Conservation and Recovery Act (“RCRA”) give EPA broad authority to mandate monitoring and reporting and collect information from regulated entities.

For the purpose of determining whether any person is in violation of the CAA, EPA may require an owner or operator of an emission source, or any person who EPA believes may have relevant information to maintain and submit various data, records, and reports.  EPA’s access to and inspection of documents and records is not limited to documents or records that EPA itself requires to be maintained.  EPA may access any records required pursuant to federal or other applicable regulation, or records directly related to purpose of inspection.

Similarly, under the CWA, EPA may require the owner/operator of a point source to establish and maintain records and reports, install monitoring equipment, or sample effluents.  Under RCRA, EPA may require anyone who “generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes” to furnish information.  Thus, EPA is permitted to request information from past generators as well as parties who may not have been subject to RCRA, but who have actually handled hazardous waste.

The CAA, CWA, and RCRA all stipulate that information obtained by EPA must be made available to the public, unless it fits within the exception for trade secrets.

EPA’s Inspection Authority

The CAA, CWA, and RCRA also provide EPA with a powerful investigatory tool by giving EPA broad authority to inspect and gather information pertaining to regulated entities.

Under the CAA, 42 U.S.C. § 7414(a)(2), the Administrator or an authorized representative may inspect the property of an owner/operator of an emission source.  EPA may enter the property, access records, inspect monitoring equipment, and take emissions samples.  The statute, however, does not define “authorized representative,” and whether or not private companies under contract with EPA are authorized representatives has been a source of substantial controversy.  The CWA and RCRA also provide similarly broad authorizations for EPA to enter a regulated premises.

The concept of an administrative agency flying over industrial complexes or farmland to investigate potential administrative violations is not new.  EPA inspectors have used small private planes to look for CAA and CWA violations, such as dirty runoff or manure dumped into a stream, since at least the late 1970s.  Such flights have long been permitted under the Supreme Court’s decision in Dow Chemical Company v. U.S., 76 U.S. 227 (1986).

According to EPA, one benefit of the flights is that they are relatively inexpensive.  An on-the-ground inspection of a farm might cost $10,000, whereas an aerial survey from a plane would cost around $1,000 to $2,000.  Compared to the cost of hiring a commercial pilot to fly over a property, UAS have the added benefit of being even less expensive.

What This Means to You

Congress has provided EPA with very broad authority to gather information under the major environmental statutes that may reasonably be required by the agency to implement and enforce the statutes.  Such “other information” could include photographic evidence of unpermitted emissions or discharges, or unpermitted disposal of wastes.  As the remote sensing technologies develop, remote data might also be used to identify specific pollutants and waste materials.

Owners and operators of farms, manufacturing operations and other facilities that may be subject to environmental regulation should be aware of the potential use of data that may be collected and be prepared to produce such information if requested or ordered to do so by an environmental regulatory agency.

Husch Blackwell’s environmental attorneys regularly advise clients in all industries on the collection, retention and production of environmental data and the impact of such data on potential enforcement action by the environmental agencies.