NH Legal Perspective: EPA Proposes National ‘Compliance’ Initiatives

This article was originally published in the Union Leader and can be found here.

NH Legal Perspective: EPA Proposes National ‘Compliance’ Initiatives

By: Lynn Preston

March 30, 2019

About every three years the Environmental Protection Agency announces its National Enforcement Initiatives (NEIs) — essentially, EPA’s enforcement and compliance playbook for combating the nation’s top environmental noncompliance problems.

Back in August, in what appears to be a continuation of the current administration’s reshaping of agency policies, EPA’s Office of Enforcement and Compliance Assurance (OECA) announced its intent to retitle its existing program on National “Enforcement” Initiatives to National “Compliance” Initiatives.

This name change clearly signals a proposed shift in focus and emphasis. The August memorandum identified “adjustments” reflecting this recent policy change and called this new approach an effort to “better convey the message that increased compliance is the goal, and enforcement actions are not the only tool for achieving this goal.”

As described in the EPA memorandum, adjustments will include EPA’s use of the full range of compliance assurance tools in a new National Compliance Initiative (NCI). The memorandum goes on to highlight the need for joint governance and accountability with the state agencies in implementing this new initiative.

EPA’s proposed list of NCIs for 2020-2023 was recently published in the Feb. 8 edition of the Federal Register. Three initiatives the EPA proposes to continue:

Cutting Hazardous Air Pollutants (HAPs). The EPA will extend its current initiative that focuses on chemical and industrial source HAP emissions from activities such as “flaring” and leaking equipment.

Reducing Toxic Air Emissions from Hazardous Waste Facilities. The EPA continues its current initiative that targets noncompliant situations associated with the release of certain air emissions resulting from the improper management of hazardous waste facilities.

Reducing Risks of Accidental Releases at Industrial and Chemical Facilities. EPA will also continue to focus on noncompliance associated with sources regulated under the Clean Air Act’s Risk Management Program. This program requires facilities to identify and prepare management plans for the prevention of releases of extremely hazardous substances.

Two initiatives the EPA proposes to modify:

“Keeping Industrial Pollutants out of the Nation’s Waters” becomes “National Pollutant Discharge Elimination System (NPDES) Significant Non-Compliance (SND) Reduction.” The EPA proposes modifying its current initiative to move towards increasing compliance with water discharge permits to achieve reductions in discharges — but, perhaps, recognizing in its rebranding that some industrial discharges will continue to occur — at least over the duration of the NCI.

Ensuring Energy Extraction Activities Comply with Environmental Laws. The EPA is modifying this initiative to expand its focus beyond natural gas extraction to include all compliance requirements (large and small) in this sector.

Two initiatives the EPA proposes to remove:

Reducing Air Pollution from the Largest Sources. The EPA contends its enforcement activities since the mid 1990s have substantially reduced emissions of air pollutants from major sources — much of which was completed under its New Source Review program requiring permitting for major modifications at these facilities. Consequently, an NCI designation is no longer necessary or appropriate, and removal from the NCI is warranted.

Keeping Raw Sewage and Contaminated Stormwater out of the Nation’s Waters. According to the EPA, enforcement activities since 2000 against the largest municipal sewer systems have resulted in significant improvements in compliance and major reductions in water pollution. Overall, an initiative focused on this sector no longer presents a significant opportunity to correct water quality impairment nationwide and, thus, removal from the NCI is proposed.

The EPA proposes to add two new initiatives:

Increase Compliance with Drinking Water Standards. The EPA adds this new initiative in its NCI to prioritize issues associated with community water systems. The EPA intends on “working jointly with states to identify how we can collaborate to use our resources more effectively and efficiently to focus efforts where they can make the biggest difference as we work together to increase compliance with primary drinking water standards thus improving public health protection at community water systems most at risk.”

NCI to reduce children’s exposure to lead. In this new NCI, the EPA proposes to support various agency efforts to tackle lead contamination in all environmental media and will focus on opportunities to use consumer education to increase compliance and decrease exposures.

Over the last few decades there is ample evidence of demonstrable progress resulting from the EPA’s enforcement initiatives in sectors posing real risk to public health and the environment and, at times, against some pretty egregious violators. Yet, while there will always be a certain number of “bad actors” out there, the majority of the noncompliance, at least those that I see here in New England, is identified and addressed before significant environmental damage occurs.

I like the sound of the new initiative — “compliance” in place of “enforcement” — for those not-so-bad actors. It recognizes that many regulated entities have significantly stepped up their game in the environmental compliance arena over the last 10 to 15 years. However, it remains to be seen whether the EPA’s new NCI and its efforts to work jointly with the states can provide industry and other “not-so-egregious” violators with the compliance assistance, support, and other tools to, in the EPA’s words, “better convey the message that increased compliance is the goal, and enforcement actions are not the only tool for achieving this goal.”