EPA Proposes Enforcement Initiatives

On January 19, 2023, the EPA announced its proposed 2024–2027 National Enforcement and Compliance Initiatives (NECIs).

Every 4 years, the Agency selects national initiatives to focus resources on serious and widespread environmental problems where federal enforcement can make a difference. The primary objective of these initiatives is to protect human health and the environment by holding polluters accountable through enforcement and assisting regulated entities to return to compliance.

Proposed initiatives

The following four NECIs were part of the Agency’s 2020–2023 cycle and are proposed to continue in the 2024–2027 NECI cycle:

1. Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants. This initiative, started in fiscal year (FY) 2020, addresses the adverse health and environmental effects from exceedances of the National Ambient Air Quality Standards (NAAQS) for ozone to which sources of volatile organic compounds (VOCs) contribute, as well as health impacts on communities from emissions of hazardous air pollutants (HAPs).

In continuing this initiative, the EPA states it plans to focus on processes for which widespread noncompliance continues to be identified: flares, storage tanks, wastewater treatment, and incineration/combustion. This can also further the EPA Strategic Plan goals of advancing environmental justice and addressing climate change by prioritizing inspections at sources impacting vulnerable or pollution-burdened communities and by achieving pollutant reductions, with the co-benefit of reducing emissions of methane, which contributes to climate change.

• Reducing Risks of Accidental Releases at Industrial and Chemical Facilities. This initiative, which began in 2016, seeks to decrease the likelihood of chemical accidents and ensure that thousands of facilities nationwide, many of which are in vulnerable or overburdened communities, comply with Section 112(r) of the Clean Air Act (CAA) and the Chemical Accident Prevention regulations, also known as the Risk Management Program (RMP).

The Agency plans to continue this initiative because it states it has found that many regulated facilities still are not adequately managing the risks they pose or ensuring the safety of their facilities to protect surrounding communities. For 2024–2027 NECIs, the Agency states its focus will be on enforcement responses to catastrophic accidents and integrating the Strategic Plan goals of advancing environmental justice and addressing climate change by increasing inspections in vulnerable and overburdened areas, such as fenceline communities, and considering vulnerability of facilities to natural hazards and climate change as criteria when selecting facilities for inspection. In addition, the CAA General Duty Clause (GDC) requirements cannot be delegated to states, tribes, or territories, and while RMP regulations may be delegated, the EPA remains the sole enforcement authority in all but nine states.

• Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (NPDES) Program. This initiative, which began in FY 2020 and was undertaken in collaboration with NPDES states, seeks to reduce the number of facilities in significant noncompliance (SNC) with their NPDES permits.

In the next NECIs cycle, the Agency states its plan is to focus on ensuring the worst effluent violators are addressed and on reducing the effluent violation component of the SNC rate. (During the FY 2020–2023 cycle of this initiative, the EPA and the states together cut the national SNC rate in half, to 9.0%, and focused on reducing missing data and improving data quality; however, a large number of facilities continue to have effluent violations.) While focusing on addressing the worst effluent SNC violators, the initiative would be expanded to include municipal permittees that are covered under a general permit, as unlawful discharges from facilities with a general permit can cause significant adverse impacts to communities, particularly overburdened communities.

• Reducing Non-Compliance with Drinking Water Standards at Community Water Systems. This initiative, which began in FY 2020, seeks to ensure that the approximately 50,000 regulated drinking water systems that serve water to residents year-round—referred to as Community Water Systems (CWSs)—comply with the Safe Drinking Water Act (SDWA).

The EPA plans to continue this initiative for the FY 2024–2027 cycle because while the EPA, working with the states, has made considerable progress in improving SDWA compliance, further improvement in compliance is needed. In the next NECI cycle, the Agency will focus on the most violated rules, which are the Lead and Copper Rule, the Disinfection Byproducts Rule, and the Ground Water Rule. The Agency states it will seek to increase the number of inspections at systems serving overburdened communities and ensure that communities know about health-based violations and steps to take to protect their health. In addition, the initiative would consider climate change resiliency by ensuring compliance with SDWA Section 1433, which requires CWSs serving more than 3,300 people to develop risk and resilience assessments and emergency response plans, which must include the risks posed by climate change and natural hazards on the infrastructure of the system.

The following current two initiatives are planned to be returned to the Agency’s standard “core” enforcement program:

1. Reducing Toxic Air Emissions from Hazardous Waste Facilities
2. Stopping Aftermarket Defeat Devices for Vehicles and Engines

Two new NECIs are proposed to be added to the 2024–2027 NECIs:

1. Mitigating Climate Change. A potential climate NECI would seek to combat climate change through a focus on reducing noncompliance with the illegal import, production, use, and sale of hydrofluorocarbons (HFCs) pursuant to the American Innovation and Manufacturing Act of 2020 (AIM Act) and excess emissions from sources within certain industrial sectors, including municipal solid waste landfills and oil and natural gas production facilities, as well as noncompliance with other requirements such as mobile source, fuels, and methane regulations.

• Addressing Per- and Poly-Fluoroalkyl Substances (PFAS) Contamination. A potential PFAS NECI would focus on implementing the commitments to action made in the EPA’s 2021–2024 PFAS Strategic Roadmap. In the road map, the EPA committed to holding polluters and other responsible parties accountable for their actions, ensuring they assume responsibility for characterization and remediation efforts and prevent future releases of PFAS.

This initiative would initially focus on identifying the extent of PFAS exposures that pose a threat to human health and the environment and pursuing responsible parties for those exposures. To the extent that PFAS cleanup efforts occur under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the EPA will develop a CERCLA enforcement discretion and contribution protection settlement policy regarding PFAS contamination. For example, the EPA intends to focus enforcement efforts on PFAS manufacturers whose actions result in the release of significant amounts of PFAS into the environment and on federal facilities that may be a significant source of PFAS contamination. The EPA does not intend to pursue entities where equitable factors do not support assigning CERCLA responsibility.

In the proposed action, the EPA requests comments on two additional actions it is considering as additional NECIs:

1. Reducing exposure to lead: Ongoing exposures to lead in the environment present a health risk to many people nationwide, especially in communities overburdened by pollution, which are disproportionately communities of color and low-income communities. Some of these exposures result from noncompliance with laws designed to reduce or eliminate exposure and enforcement can play a key role in addressing this noncompliance.

• Addressing coal combustion residuals (CCR): The EPA has ongoing efforts to address noncompliance with Resource Conservation and Recovery Act (RCRA) regulations for the safe disposal of CCRs, commonly known as coal ash, from coal-fired power plants. The EPA is seeking comment on the idea of a CCR-focused NECI to reduce noncompliance in this sector.

The proposed NECIs have been published in the Federal Register and are available for public comment until March 13, 2023.

“The National Enforcement and Compliance Initiatives identify serious environmental challenges where EPA can make a difference through a coordinated national approach,” said Larry Starfield, acting assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance, in the EPA news release. “We look forward to receiving public comment on our proposals for FY 2024-2027, which include both familiar and emerging issues. Of particularly importance, we have built environmental justice considerations firmly into every initiative in order to protect vulnerable and overburdened communities.”