On August 17, 2023, the U.S. Environmental Protection Agency (EPA or Agency) Office of Enforcement and Compliance Assurance (OECA) announced its national enforcement and compliance priorities for fiscal years 2024-27, following the Agency’s solicitation of public comment on the proposed initiatives earlier this year. The National Enforcement and Compliance Initiatives (NECIs) echo the Biden administration’s focus on climate change, environmental justice, and EPA’s strategic goals outlined in EPA’s 2022-2026 Strategic Plan. Stakeholders should take note of EPA’s new, modified, and continuing initiatives. Specifically, EPA will focus on six NECIs:
1. Mitigating Climate Change: EPA identified “tackling the climate change” as the Agency’s “top priority” and plans to use OECA’s criminal and civil enforcement authorities to address alleged “widespread noncompliance” regarding (1) methane emissions from oil and gas facilities, (2) methane emissions from landfills, and (3) the use, importation, and production of hydrofluorocarbons.
2. Addressing Exposure to PFAS: The new NECI pertaining to per- and polyfluoroalkyl substances (PFAS) focuses on controlling ongoing PFAS releases, ensuring compliance with permits and other agreements to address PFAS contamination, and adapting to changes in the scientific and regulatory landscapes. This further intensifies EPA’s focus on PFAS already seen in the Agency’s PFAS Strategic Roadmap and the addition of new PFAS to the Toxic Release Inventory.
3. Protecting Communities From Coal Ash Contamination: EPA intends to conduct investigations, with a focus on facilities that manage coal ash that EPA believes may affect surrounding communities, take enforcement actions at noncompliant facilities, and address affected groundwater, surface water, and drinking water resources. EPA reports it intends to focus on approximately 300 regulated coal combustion residual facilities with 240 landfills and 535 surface impoundments.
4. Reducing Air Toxics in Overburdened Communities: Building on its existing initiative of “Creating Cleaner Air for Communities,” EPA will focus the Agency’s air initiative on targeted overburdened communities selected by each of the 10 EPA regional offices. These communities will be those that EPA finds are experiencing “impacts from higher levels or multiple sources of toxic air pollution.” Each region will select communities in partnership with states based on “fenceline monitoring and other sophisticated tools that allow detection” of air pollution.
5. Increasing Compliance With Drinking Water Standards: EPA also announced its intention to continue its focus on increasing the Agency’s presence in the field, pursuing strategic enforcement to reduce noncompliance, and offering additional compliance assistance to address public health. The drinking water initiative seeks to ensure that the approximately 50,000 community water systems (CWS) across the country comply with the Safe Drinking Water Act (SDWA). In fiscal year 2022, EPA reported that it found that 18,282 CWSs had at least one SDWA violation, and 2,854 had a health-based violation.
6. Chemical Accident Risk Reduction: EPA is continuing its focus on inspecting and addressing noncompliance at facilities that use anhydrous ammonia and hydrogen fluoride and use “all available enforcement tools to address violations of risk management requirements, including holding entities criminally responsible.”
Which Initiatives Did EPA Discontinue?
- Stopping Aftermarket Defeat Devices for Vehicles and Engines: This initiative focused on the manufacture, sale, and installation of devices on vehicles and engines that bypass or defeat emission controls (defeat devices). EPA found that the Agency had made “significant progress” on the initiative, addressing over 460,000 aftermarket defeat device violations across 130 enforcement cases since 2020, and had raised awareness of the concerns associated with defeat devices. While aftermarket defeat devices may not receive the increased attention and enforcement resources that occurred during the past several years, EPA retains all of its authority under the Clean Air Act to pursue violations. OECA also remains responsible for taking timely action to address recommendations by the January 25, 2023, Office of Inspector General report that found EPA was not on track to reach its goals to stop aftermarket defeat devices and tampered vehicles.
- Reducing Significant Noncompliance With National Pollutant Discharge Elimination System: OECA began this national initiative to improve compliance in the Clean Water Act permitting program, and EPA has reported that it brought the rate of significant noncompliance among the approximately 46,000 permittees across the country from 20.3% in fiscal year 2018 to 10.1% by the end of fiscal year 2022. EPA credits much of its success to improving the completeness and accuracy of the water discharge permit compliance data, which means that regulators can now quickly identify and address violations, even without national initiative focus and resources.
- Reducing Toxic Air Emissions From Hazardous Waste Facilities: In fiscal year 2017, OECA began this initiative to reduce organic air emissions from hazardous waste facilities as required under the Resource Conservation and Recovery Act. Since then, EPA reported that the Agency concluded over 100 enforcement cases and worked with states and industry to provide compliance training. This initiative has been returned to the standard core enforcement program, but OECA will continue to offer training to state regulators and the regulated community.
What Should Regulated Entities Expect?
- Strengthened Enforcement: The rebranding of EPA’s initiatives from National Compliance Initiatives to National Enforcement and Compliance Initiatives reflects the current administration’s focus on using the full breadth of EPA’s authority in both compliance and enforcement.
- The Rise of PFAS Regulation and Enforcement: Any products and/or facilities with potential PFAS, even if a specific given substance is not currently regulated or banned, should anticipate heightened Agency scrutiny.
- Environmental Justice Considerations: Although time will tell how aggressively EPA pursues the enforcement priorities, companies should stay vigilant in their efforts to comply with relevant statutory and regulatory requirements. Facilities operating in or near communities EPA determines are overburdened or disadvantaged should expect increased investigative and enforcement EPA efforts.
More information about the EPA NECIs is available on EPA’s website here.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.
Attorney Advertising—Sidley Austin LLP, One South Dearborn, Chicago, IL 60603. +1 312 853 7000. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships, as explained at www.sidley.com/disclaimer.
© Sidley Austin LLP