Regulatory Developments, Special Topics in Environmental Management

Take a Look at EPA’s Proposed National Compliance Initiatives for 2020–2023

Since President Donald Trump occupied the White House, the EPA has been methodically revising its approach to enforcement. One important policy change occurred in summer 2018 when the Agency’s Office of Enforcement and Compliance Assurance (OECA) announced that the National Enforcement Initiatives (NEI) program, the OECA’s triannual prioritization of the country’s top noncompliance problems, would be revamped under a new title: National Compliance Initiatives (NCI). The announcement was contained in a memo in which the OECA outlined its selection criteria for the next round of NEIs, which will cover the years 2020 to 2023. The OECA has now proposed its NCIs for those years. While in the past, the NEIs have tended to be fairly consistent from cycle to cycle, the proposed NCIs appear to significantly depart from that past practice and are reflective of the current EPA’s desire to put more weight on compliance assistance, rely less on an enforcement-first approach, and shift more of the enforcement burden to the states.
Environmental Protection Agency sign
The 2017–2019 NEIs provide a platform for the proposed NCIs. While the EPA is currently maintaining the 2017–2019 initiatives, the Agency is also requesting comment on whether it should continue or modify each of those initiatives or conclude and return them to the core or standard enforcement program.

Continuation, Modification, Removal

The proposed NCI list and associated actions are as follows:

  • Cut hazardous air pollutants (HAPs). This NEI would be extended from the previous program. The initiative focuses on HAPs emitted by chemical and petrochemical point sources. For example, flaring at petroleum refineries has been found to have disproportionally adverse impacts on disadvantaged and minority populations that live near these facilities. “The Agency also believes that its expertise will help improve compliance rates and facilitate a timely return to compliance where noncompliance is found,” says the EPA.
  • Reduce accidental releases at industrial and chemical facilities. This initiative would be extended from the previous program. Clean Air Act (CAA) Section 112(r)—called the Risk Management Program (RMP)—authorizes the EPA to require that these facilities identify risks accidental chemical releases present to nearby populations and take actions to prevent such releases. Again, the EPA continues to believe that noncompliance with the RMP is particularly dangerous for nearby vulnerable communities. “Therefore, the EPA plans to continue this NCI with a focus on the most serious situations of non-compliance and attention to the EPA Strategic Plan objective of addressing vulnerable populations,” states the Agency.
  • Reduce significant noncompliance (SNC) with National Pollutant Discharge Elimination System (NPDES) program. This would be a modification of the 2017–2019 NEI, which was titled “Keeping Industrial Pollutants out of the Nation’s Waters.” The shift appears to be away from enforcement and toward increasing the environmental law compliance rate, with a particular focus on the most egregious instances of permit violations. “The NCI has incorporated the existing ‘Industrial Pollutants’ NCI with a broader focus of increasing the percentage of all NPDES permittees in compliance with their permit (as measured by reducing the rate of permittees in SNC),” says the EPA. “This effort could establish a model for improving environmental program compliance rates that could be used in other programs.”
  • Ensure compliance of extraction activities. This would be a modification of the 2017–2019 initiative, which focused on one industrial sector: natural gas extraction. This focus implied, the EPA now states, that all problems in this sector, large or small, should be a priority. The Agency now proposes to shift its concentration to significant public health and environmental problems without regard to sector. “Specifically, for the FY 2020-2023 NCI cycle, the EPA is proposing to transition this NCI to an initiative that will focus on significant sources of volatile organic compounds (VOCs) that have a substantial impact on air quality (without regard to sector), and that may adversely affect vulnerable populations or an area’s CAA attainment status,” states the Agency.
  • Reduce air pollution from the largest sources. This initiative would be returned to the core enforcement program. The Agency argues that enforcement and other efforts it has made since 1996 have substantially reduced emissions of CAA criteria air pollutants from major sources of air pollution. Much of that enforcement has been directed to alleged violations of New Source Review (NSR), a program that requires that facilities undergoing major modifications obtain permits that require the installation of state-of-the-art pollution control equipment. In the last several years, the EPA has been taking steps to change the NSR criteria so that they would apply to fewer facility modifications. In any event, given the performance of large facilities, the Agency believes an NCI designation is no longer appropriate. Should the proposal be made final, it would mark the first time in more than 20 years this issue has not been a national initiative.
  • Keep raw sewage and contaminated stormwater out of the nation’s waters. This initiative, which has been in the program since 2000, would be returned to the core enforcement program. According to the EPA, 97 percent of large combined sewer systems, 92 percent of large sanitary sewer systems, and 79 percent of Phase 1 municipal separate stormwater systems are now either in compliance or on an agreed-upon schedule to come into compliance. “Accordingly, the Agency believes that this NCI no longer presents a significant opportunity to correct water quality impairment nationwide,” says the EPA.
  • Increase compliance with drinking water standards. This is a new NCI proposed by the EPA. The nation’s aging drinking water infrastructure, plus noncompliance with drinking water standards, exposes millions of people to health risks, says the EPA. Thousands of community water systems (CWS) fail to collect required samples or take required follow-up actions once contaminant exceedances are detected. As a whole, the drinking water sector does not appear to be progressing toward improved compliance. “This potential NCI would focus on EPA 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 CWSs most at risk,” says the Agency.
  • Reduce children’s exposure to lead. This is a new NCI proposed by the EPA. Children’s exposure to lead in drinking water and paint is a chronic problem in minority and disadvantaged areas. “A potential lead NCI would support various agency efforts to tackle lead contamination in all environmental media and could present an opportunity to use consumer education to increase compliance,” states the EPA. In its proposal, the EPA says the public is invited to propose other areas for consideration as NCIs,“keeping in mind resource considerations.”

The Agency will accept comments until March 11, 2019.

The prepublication version of the proposal is available here.