With 2024 underway, it’s a good time for regulated industry to put the EPA’s 2024–2027 National Enforcement and Compliance Initiatives (NECI) front of mind.
Every four years, across administrations, the EPA selects enforcement and compliance initiatives to allow the Agency and its state partners to prioritize issues and determine the necessary resources to address the most serious and widespread environmental problems the United States is facing.
In selecting initiatives, the EPA Office of Enforcement and Compliance Assurance (OECA) relied on three criteria:
- The need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities;
- A focus on areas where federal enforcement authorities, resources, and/or expertise are needed to hold polluters accountable and promote a level playing field; and
- Alignment with the EPA’s Strategic Plan.
The current initiatives focus on three goals from the Strategic Plan:
- Goal 1: Tackle the climate crisis.
- Goal 2: Take decisive action to advance environmental justice.
- Goal 3: Enforce environmental laws, and ensure compliance.
“All [six] of the initiatives incorporate environmental justice considerations to ensure that the benefits of our Nation’s environmental laws can be shared by everyone living in the U.S.,” states the OECA memorandum on the initiatives. “Taken together, these initiatives focus on significant noncompliance with environmental laws across all media—air, water, and land—so that law-abiding companies are not at a competitive disadvantage with polluters.”
- Mitigating climate change
This initiative is a new NECI that was selected because addressing climate change is a top priority for the Agency. Directing enforcement and compliance efforts to reducing greenhouse gas (GHG) emissions is believed to be the fastest route to limiting the worst effects of climate change.
This NECI will use the OECA’s criminal and civil enforcement authorities to address three separate and significant contributors to climate change:
- Methane emissions from oil and gas facilities;
- Methane emissions from landfills; and
- The use, importation, and production of hydrofluorocarbons (HFC)
EPA’s stated reasoning for this NECI. Oil and gas systems and landfills are the second- and third-largest sources of methane emissions in the United States. Methane is a climate super-pollutant that’s more than 25 times as potent as carbon dioxide at trapping heat in the atmosphere.
Planned enforcement specifics. The OECA will focus on enforcement of long-standing air pollution requirements, such as New Source Performance Standards (NSPS) at oil and gas facilities and landfills. This will have the added benefit of reducing methane emissions. And, if the EPA creates new rules to reduce methane emissions in the future, enforcement of those requirements could be included under this NECI.
The OECA will also continue to focus on the phasedown of HFCs, another climate super-pollutant, by ensuring this occurs under the schedule required by the American Innovation and Manufacturing Act (AIM Act) and the Kigali Amendments to the Montreal Protocol.
“Prior phaseouts of ozone-depleting substances under the Montreal Protocol resulted in significant unlawful activity that required a strong enforcement response, especially at our borders,” adds the OECA memo. “OECA will reduce harmful HFC emissions through criminal and civil enforcement of the AIM Act.”
Criminal and civil enforcement directed at HFCs is expected to focus on the heating, ventilation, air conditioning, and refrigeration (HVACR) industry.
“OECA has documented widespread noncompliance in all three of these areas, resulting in potentially tens of thousands of tons of unlawful emissions of [GHGs] and other pollutants. This NECI will help achieve EPA’s goals to combat climate change while also addressing significant noncompliance in specific industry sectors that are sources of harmful pollution.”
- Addressing exposure to PFAS
This is also a new initiative for the Agency that was selected because of the toxicity and persistence of per- and polyfluoroalkyl substances (PFAS)and the breadth and scope of PFAS contamination throughout the country.
EPA stated reasoning for this NECI. PFAS contamination is a significant priority for the EPA, and while the regulatory framework for PFAS continues to develop across multiple statutes, the OECA has already taken several enforcement actions to ensure compliance with existing statutes, including action to address an imminent and substantial endangerment to communities.
PFAS NECI goals. The initial goals of the PFAS NECI are:
- Identifying and characterizing the extent of PFAS contamination near PFAS manufacturing/use facilities in the country using authorities such as the Comprehensive Environmental Response, Compensation, and Reliability Act (CERCLA); the Resource Conservation and Recovery Act (RCRA); the Clean Water Act (CWA); and the Safe Drinking Water Act (SDWA);
- Performing oversight of PFAS characterization and control activities at federal facilities to ensure these facilities meet all environmental obligations and serve as a model for the regulated community; and
- Continuing to address violations and imminent and substantial endangerment situations by major PFAS manufacturers, federal facilities, and other industrial parties that significantly contributed to the release of PFAS into the environment.
Planned enforcement specifics. The OECA will increase enforcement actions, particularly where necessary to protect drinking water supplies.
“In addition, if EPA designates PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), this NECI would focus on implementing EPA’s PFAS Strategic Roadmap and holding responsible those who significantly contribute to the release of PFAS into the environment, such as major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties,” the OECA memo states. “If PFOA and PFOS are listed as hazardous substances, OECA does not intend to pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments, much as OECA exercises CERCLA enforcement discretion in other areas.
“Beginning in FY 2025, the Agency will build upon these initial goals by taking additional enforcement actions where appropriate. Activities under this NECI may expand if additional regulations are finalized.”
- Protecting communities from coal ash contamination
This is the third new initiative for the Agency that was selected because neighborhoods located near coal ash facilities are often environmental justice communities that likely face existing environmental burdens that put them at greater cumulative risk from the environmental impacts associated with proximity to coal ash landfills or impoundments, including harmful air pollution and threats to drinking water sources.
EPA stated reasoning for this NECI. In 2021, coal-fired electric utilities generated almost 80 million tons of coal combustion residuals (CCRs), more commonly known as coal ash. Coal ash contains contaminants such as mercury, cadmium, chromium, and arsenic, which are associated with cancer and other serious health effects. There are approximately 300 regulated CCR facilities nationwide that comprise approximately 775 coal ash units (240 landfills and 535 surface impoundments).
Planned enforcement specifics. “Noncompliance with the CCR requirements under the Resource Conservation and Recovery Act appears to be widespread,” the OECA memo notes. “Many utilities are not complying with the current performance standards and monitoring and testing requirements. In addition to serious and widespread noncompliance, the CCR regulatory program is predominantly a federally implemented program, with only three states currently approved to implement a regulatory program. This NECI focuses on conducting investigations, particularly at coal ash facilities impacting vulnerable or overburdened communities; taking enforcement action at coal ash facilities that are violating the law; and protecting and cleaning up contaminated groundwater, surface water and drinking water resources.”
- Reducing air toxics in overburdened communities
This initiative is a modification of an existing initiative started in fiscal year (FY) 2020 as Creating Cleaner Air for Communities. The original initiative addressed the adverse health and environmental effects from exceedances of the National Ambient Air Quality Standards (NAAQS) for ozone that sources of volatile organic compounds contribute to, as well as health impacts on communities from emissions of hazardous air pollutants (HAP).
EPA stated reasoning for this NECI. Overburdened communities suffer impacts from higher levels or multiple sources of toxic air pollution. The communities for this initiative will be selected by each region that’s facing high levels of toxic air pollution from HAPs.
“Each Region will make those selections in partnership with states based on fenceline monitoring and other sophisticated tools that allow detection of the worst forms of toxic air pollution,” the OECA memo continues. “Many communities overburdened by air pollution are impacted by HAPs, such as benzene, ethylene oxide and formaldehyde. These pollutants are known or suspected to cause cancer or other serious neurological, reproductive, developmental and respiratory health effects when breathed or ingested through the food chain, including harm to children.”
Planned enforcement specifics. This initiative seeks to target, investigate, and address noncompliance with HAP regulations, focusing on HAP sources in overburdened communities. When noncompliance is found and the Agency decides to move forward with enforcement, regional offices will engage with community groups to determine the appropriate relief to address the community’s concerns.
“Though EPA admits regions will decide which HAPs they wish to focus on, the Agency does encourage investigation of several specific HAPs, including benzene, ethylene oxide, and formaldehyde,” according to a JD Supra article by Kelley Drye & Warren LLP.
Reducing air toxins has the added benefit of reducing concentrations of criteria air pollutants such as ozone and particulate matter because HAPs can comprise criteria pollutant precursor emissions. Core air enforcement program activities will also contribute to reducing criteria air pollutant concentrations.
- Increasing compliance with drinking water standards
This initiative is carried over from the previous cycle that began in 2020. Its goal is to ensure the approximately 50,000 regulated drinking water systems (referred to as Community Water Systems (CWSs)) comply with the SDWA.
EPA stated reasoning for this NECI. In FY 2022, 18,282 CWSs had at least one SDWA violation, and 2,854 of those systems had a health-based violation, according to the OECA memo. Many overburdened communities, including those in Native American territories, often face challenges meeting their obligations under the SDWA.
“While OECA, working with the states, has made considerable progress in improving SDWA compliance, further improvement in compliance is needed,” states the OECA memo. “Each year thousands of CWSs continue to violate one or more drinking water standards, exposing millions of people to potential health risks.”
Planned enforcement specifics. The OECA says it will:
- Ramp up its field presence.
- Pursue strategic enforcement to reduce noncompliance.
- Offer more compliance assistance to prevent and address public health risks.
- Continue to promote communication and understanding of NECI goals with the Association of State Drinking Water Administrators and its members.
- Continue to support and work with states, tribes, territories, local governments, and the regulated community to ensure delivery of safe water to communities.
- Chemical accident risk reduction
This initiative also continues from the previous cycle and seeks to reduce risks to human health and the environment by decreasing the likelihood of chemical accidents.
EPA stated reasoning for this NECI. EPA authority for this initiative is provided under the risk management program of Section 112(r) of the Clean Air Act (CAA), which is primarily a federally implemented program, with only a few state-delegated enforcement programs.
Thousands of facilities nationwide are regulated under this program, with the OECA finding that many regulated facilities “are neither adequately managing the risks they pose nor ensuring the safety of their facilities to protect workers, first responders and surrounding communities (nearly half of which are communities with environmental justice concerns),” the memo notes. “The failure to implement required risk management programs at facilities handling extremely hazardous substances can result in catastrophic accidents that cause fatalities and serious injuries, evacuations and shelter-in-place orders.”
Planned enforcement specifics. Under this NECI, the OECA will focus on inspecting and addressing noncompliance at facilities using two extremely hazardous substances that pose a high risk to communities:
- Anhydrous ammonia
- Hydrogen fluoride
Anhydrous ammonia, predominantly used as an agriculture fertilizer or a refrigerant, poses an inhalation risk due to its toxicity and is the most frequently released hazardous chemical from facilities regulated under Section 112(r).
Recent incidents involving the release or potential release of highly toxic hydrogen fluoride, used in petrochemical manufacturing, and concerns about the potentially catastrophic consequences of a hydrogen fluoride release support a focus on facilities that use these hazardous chemicals in their processes.
Releases of these two chemicals have had catastrophic impacts on surrounding communities, required medical responses and evacuations, and caused serious injury and fatalities.
The OECA says it will use all available enforcement tools to address violations of risk management requirements, including holding entities criminally responsible.
Core enforcement priorities
The OECA memo also says that, due to documented success in the previous NECI cycle, the following three initiatives were removed from the NECIs:
- Reducing toxic air emissions from hazardous waste facilities
- Stopping aftermarket defeat devices for vehicles and engines
- Reducing significant noncompliance with the National Pollutant Discharge Elimination System (NPDES)
These issues will continue as part of the agencies’ core enforcement program, where they’ll remain important areas for enforcement and compliance efforts, particularly in environmental justice areas.