Washington, DC
Legal Intelligencer
(by Ben Clapp and Gina Falaschi Buchman)
On January 12, 2023, U.S. Environmental Protection Agency (EPA) published a notice of public comment period in the Federal Register requesting “Public Comment on EPA’s National Enforcement and Compliance Initiatives for Fiscal Years 2024-2027.”[1] Though EPA is charged with the enforcement of many environmental statutes, like any agency with limited resources, it must prioritize enforcement efforts. Every four years, EPA reviews its priorities and sets new enforcement and compliance initiatives for which it establishes specific goals and a comprehensive strategy.[2]
Over the years, EPA has used various names for these initiatives. The program started as the National Priorities. In 2010, the program was changed to the National Enforcement Initiatives in response to stakeholder feedback that the term “National Priorities” implied that EPA’s many other enforcement activities were of lesser significance programmatically or environmentally. From 2010 to 2018, the program was known as the “National Enforcement Initiatives,” but EPA decided to “evolve the National Enforcement Initiatives program into a National Compliance Initiatives (NCIs) program by providing states and tribes with additional opportunities for meaningful engagement, by developing and applying a broader set of compliance assurance tools, and by aligning the NCIs with the Agency Strategic Plan measures and priorities.”[3]
On December 20, 2022, EPA released a memorandum entitled “Updated Policy for EPA’s Enforcement and Compliance Initiatives” which explains that “[w]hile criminal enforcement and civil enforcement (judicial and administrative) remain the key tools to address serious noncompliance, hold polluters accountable and create general deterrence, EPA also uses informal enforcement and compliance tools to advance the national initiatives. To reflect this comprehensive approach, the national initiatives will now be known as National Enforcement and Compliance Initiatives (NECIs).”[4]
The December 2022 memorandum also sets forth three criteria to be used to evaluate initiatives to be included in the Fiscal Years 2024-2027 NECIs: (1) EPA will consider whether there is a serious need to address the issue and whether it is a widespread environmental violation. EPA will aim to address noncompliance that has a significant adverse impact on the environment and public health, particularly in environmental justice communities. (2) EPA will consider whether federal enforcement can make a difference, that is, will it be effective in holding polluters accountable and leveling the playing field. (3) EPA will consider whether the NECI aligns with the EPA’s FY2022-2026 Strategic Plan to concentrate enforcement resources to contribute towards the broader goals of the agency.[5] Two of the agency’s goals – Goal 1: Tackle the Climate Crisis and Goal 2: Take Decisive Action to Advance Environmental Justice – apply to all program areas. Strategic Plan Goal 3: Enforce Environmental Laws and Ensure Compliance reemphasizes the role of the NECIs. The memorandum also states that NECIs should be evaluated as to whether they can support media-specific goals in the Agency’s Strategic Plan such as Goal 4.1 – Improve Air Quality and Reduce Localized Pollution and Health Impacts.
While the EPA is preparing for the next four-year cycle, it is still enforcing under the current set of National Compliance Initiatives for Fiscal Years 2020-2023. The agency is currently focused on six NCIs where the enforcement program has the lead for the agency and a seventh priority area, where the enforcement program is contributing to the EPA’s goal of reducing childhood lead exposure. The six current NCIs are:
- Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources;
- Reducing Hazardous Air Emissions from Hazardous Waste Facilities;
- Stopping Aftermarket Defeat Devices for Vehicles and Engines;
- Reducing Significant Noncompliance with National Pollutant Discharge Elimination System Permits;
- Reducing Noncompliance with Drinking Water Standards at Community Water Systems; and
- Reducing Risks of Accidental Releases at Industrial and Chemical Facilities.
EPA’s list of proposed NECIs for Fiscal Years 2024-2027 were selected using the three criteria explained above. EPA is soliciting comment on whether to continue, modify, or conclude the six initiatives from the FY 2020-2023 cycle. EPA notes that it is planning to continue the following four existing initiatives into the FY 2024-2027 cycle: (1) Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants. EPA plans to continue this initiative with a focus on processes for which widespread noncompliance continues to be identified: flares, storage tanks, wastewater treatment, and incineration/combustion. (2) Reducing Risks of Accidental Releases at Industrial and Chemical Facilities. EPA plans to continue this initiative because EPA has found that many regulated facilities are not adequately managing risks they pose to surrounding communities. (3) Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (NPDES) Program. EPA will continue and expand this initiative to include municipal permittees that are covered under a general permit, as unlawful discharges from such facilities can cause significant adverse impacts to overburdened communities. (4) Reducing Non-Compliance with Drinking Water Standards at Community Water Systems. EPA proposes to continue this initiative because, while progress has been made working with States in improving Safe Drinking Water Act compliance, further improvement is needed. EPA has also proposed to return the following two initiatives to the standard “core” enforcement program: (1) Reducing Toxic Air Emissions from Hazardous Waste Facilities and (2) Stopping Aftermarket Defeat Devices for Vehicles and Engines as significant improvement has been made and there is increased awareness of the issues.
EPA also specifically solicited comment on two potential new NECIs: (1) Mitigating Climate Change. This initiative would seek to combat climate change through a focus on reducing non-compliance with the illegal import, production, use, and sale of hydrofluorocarbons pursuant to the American Innovation and Manufacturing Act of 2020, excess emissions from sources within certain industrial sectors, and non-compliance with other requirements such as mobile source, fuels, and methane regulations. (2) Addressing PFAS Contamination. This initiative would focus on implementing the commitments under the EPA’s 2021–2024 Per-and Poly-fluoroalkyl substances (PFAS) Strategic Roadmap.[6] EPA also sought comment on two additional areas being considered for possible development as NECIs: (1) Reducing Exposure to Lead and (2) Addressing Coal Combustion Residuals (CCR). EPA noted that while both topics are significant enforcement priorities, resource constraints limit the number of NECIs that can be pursued.
Maintaining an awareness of the NECIs as they are developed and implemented can help the regulated community understand where EPA has identified significant nationwide noncompliance. With this knowledge, companies can identify aspects of their operations that fall within the ambit of the NECIs and evaluate internal compliance programs as appropriate. Additionally, companies should be aware that EPA will sometimes prepare updated guidance documents related to components of the NECIs in an effort to assist the regulated community in complying with the underlying environmental laws and regulations. EPA will accept comments on the proposed NECIs until March 13, 2023 on the Federal e-rulemaking portal (www.regulations.gov).
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[1] Public Comment on EPA’s National Enforcement and Compliance Initiatives for Fiscal Years 2024-2027, 88 Fed. Reg. 2093 (Jan. 12, 2023), available at https://www.govinfo.gov/content/pkg/FR-2023-01-12/pdf/2023-00500.pdf.
[2] Memorandum from Susan Parker Bodine to Regional Administrators, FY 2020-FY2023 National Compliance Initiatives, (June 7, 2019), available at https://www.epa.gov/sites/default/files/2019-06/documents/2020-2023ncimemo.pdf.
[3] Memorandum from Susan Parker Bodine to Regional Administrators, Transition from National Enforcement Initiatives to National Compliance Initiatives (Aug. 21, 2018), available at https://www.epa.gov/sites/default/files/2018-08/documents/transitionfromneitonci082118.pdf.
[4] Memorandum from Lawrence E. Starfield to Regional Administrators, “Updated Policy for EPA’s Enforcement and Compliance Initiatives” (Dec. 20, 2022), available at https://www.epa.gov/system/files/documents/2022-12/necimemo.pdf.
[5] EPA, FY2022-2026 Strategic Plan, (March 2022) available at FY 2022-2026 EPA Strategic Plan.
[6] EPA, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, available at https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
Ben Clapp is a shareholder of Babst Calland. Mr. Clapp’s transactional work, which straddles the Firm’s Environmental and Corporate practice areas, consists of advising clients on the environmental components of complex deals, including identifying and analyzing significant environmental liability and compliance issues arising in connection with mergers and acquisitions, asset sales, project financings, and corporate restructurings, and working to resolve, manage, allocate or mitigate these environmental risks in the client’s best interest. Contact him at 202-853-3488 or bclapp@babstcalland.com.
Gina Falaschi Buchman is an associate in the Environmental Group of Babst Calland. Ms. Falaschi provides advice to clients in the energy, transportation, and technology sectors regarding compliance with state and federal environmental regulations. She has assisted companies with disclosure of regulatory violations to state and federal agencies and has counseled clients in negotiations with the U.S. Department of Justice, U.S. EPA, and California Air Resources Board. Contact her at 202-853-3483 or gbuchman@babstcalland.com.
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Reprinted with permission from the February 16, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
