EPA's New National Compliance Initiatives Reflect Shifting Enforcement Priorities and Methods

New Initiatives

• Stopping Aftermarket Defeat Devices for Vehicles and Engines. Under the Clean Air Act, EPA sets standards for vehicle and engine emissions. According to EPA’s Selection Memorandum, “EPA has found numerous companies and individuals that have manufactured and sold both hardware and software specifically designed to defeat required emissions controls on vehicles and engines used on public roads as well as on nonroad vehicles and engines.” This Initiative reflects EPA responding to increased public attention on mobile sources of air pollution, following several recent, high-profile settlements with automobile manufacturers.
• Reducing Noncompliance with Drinking Water Standards at Community Water Systems. Community Water Systems are regulated drinking water systems that serve water to the same people year-round, and there are over 50,000 nationwide. A Community Water System is a public water system that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. City and town water utilities are considered Community Water Systems. In selecting this Initiative, EPA noted in its Selection Memorandum that in fiscal year 2018, “40 percent of the nation’s [Community Water Systems] violated at least one drinking water standard.”
  
  This Initiative supports EPA’s current Agency Strategic Plan, which calls for a 25 percent reduction in Community Water Systems that are out of compliance with health-based standards by the end of fiscal year 2022. EPA did not specify which pollutants or standards it will target, but, based on EPA’s other current priorities, lead and per- and polyfluoroalkyl substances (PFAS) likely will be targeted contaminants. (EPA issued its Lead Action Plan in December 2018 and its PFAS Action Plan in February 2019, both of which relate in part to drinking water.) As a priority focused on municipal entities operating, in many cases, aging infrastructure systems, this Initiative has many parallels to EPA’s former priority focused on sewer overflows under the Clean Water Act (noted below). 

Modified Initiatives

• Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources. This Initiative focuses on emissions of harmful volatile organic compounds and hazardous air pollutants regulated under the Clean Air Act. It represents a continuation of the prior Initiative for Cutting Hazardous Air Pollutants, merged with a modified version of the prior Initiative for Ensuring Energy Extraction Activities Comply with Environmental Laws. That is, this Initiative absorbed EPA’s previous focus on the energy sector, and those facilities should not assume that this merger of Initiatives will mean a reduction in scrutiny.
  
  Volatile organic compounds affect ozone, so this Initiative will likely focus on facilities in ozone nonattainment areas under the National Ambient Air Quality Standards. While this Initiative is largely a conglomeration of previous priorities, it has potential to involve newer regulations, such as benzene fenceline monitoring at petroleum refineries,⁴ which first required reporting this year. Even if this Initiative becomes more national in scope than the prior cycle, enforcement will still likely target geographic areas with ample energy assets.

• Reducing Significant Noncompliance with National Pollutant Discharge Elimination System Permits. This Initiative modifies the previous Initiative for Keeping Industrial Pollutants Out of the Nation’s Waters to focus on all facilities in significant noncompliance with their Clean Water Act National Pollutant Discharge Elimination System permits. EPA noted in its Response to Comments that “[o]ver 92 percent of [40,000 permitted] facilities are currently in [significant noncompliance] with their permits.”⁵

Continued Initiatives

• Reducing Risks of Accidental Releases at Industrial and Chemical Facilities. This Initiative relates to the General Duty Clause under Clean Air Act Section 112(r) and associated Risk Management Program regulations under 40 C.F.R. Part 68. EPA noted in its Selection Memorandum that about 150 catastrophic accidents involving extremely hazardous substances occur annually, presenting risks to employees and nearby communities. EPA will likely continue to target facilities where accidents occur for enforcing violations of the General Duty Clause and Risk Management Program regulations.

• Reducing Toxic Air Emissions from Hazardous Waste Facilities. According to the Selection Memorandum, EPA is continuing this Initiative because the “prior cycle revealed widespread noncompliance related to leaking or open pressure relief valves and tank closure devices, monitoring, recordkeeping, and numerous other requirements.”

Retired or Replaced Initiatives

Two initiatives were returned to EPA’s core program for compliance and enforcement after several years as enforcement priorities.

• Reducing Air Pollution from the Largest Sources. EPA concluded that it had effectively extended investigations to glass, cement and acid manufacturing sectors, which were of serious concern, inspecting over 90 percent of all facilities in those sectors nationwide. EPA noted in its Response to Comments that “approaches and enforcement efforts in this sector have resulted in a 90 percent reduction in sulfur dioxide emissions and an 83 percent reduction in nitrogen oxide emissions since 1997, while gross electricity generation has increased by 10 percent.”
• Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters. EPA concluded that this Initiative had been largely successful at increasing nationwide compliance. EPA noted in its Response to Comments that “EPA has taken actions to assure compliance at 97 percent of large combined sewer systems, 92 percent of large sanitary sewer systems, and 79 percent of Phase 1 municipal separate stormwater systems.”

What Should Regulated Entities Expect?

• Enforcement Keeps Marching: There may be more opportunities for alternative approaches to enforcement and compliance, such as voluntary disclosures, expedited settlements, and compliance assistance. But these have always been part of EPA’s toolbox. Decisions will often come down to career regional staff who have seen several cycles of Initiatives and who carry out much of the day-to-day enforcement work at the agency.
• Mobile Source Scrutiny: Entities regulated under the Clean Air Act for mobile source emissions, such as engine and automobile manufacturers, should be prepared for increased interest from EPA headquarters and regional staff looking for tips and whistleblowers.
• Water System Focus Likely to Persist: The new drinking water priority could easily persist through several cycles of Initiatives because upgrades to drinking water infrastructure are time and capital intensive. Large and aging water systems could expect compliance schedules running several years (15 years or more in some cases) and injunctive relief costing billions of dollars. The prior wastewater treatment system Clean Water Act priority, now being returned to the core program, was in place for over 20 years, with settlements dating at least as far back as 1998.
• Situational Awareness for Facilities: The “operating environment” for regulated entities remains challenging with greater scrutiny from citizen groups, tips generated from ubiquitous technology such as mobile phone cameras, increasingly sophisticated desktop enforcement targeting, and greater dissemination of compliance data. Facilities therefore should exercise particular care in assuring compliance with requirements in these priority enforcement areas, foster strong working relationships with regulators and assure data that are reported — or that are cited by agencies — are accurate.
• 2020 — the “Big Rewind”? If there were a change in administration after 2020 and a reset at EPA, these priorities would likely remain in place, but the methods by which they are accomplished could change—that is, an even greater emphasis on traditional enforcement and less compliance assistance.

 

---

 

¹ Public Comment on EPA’s National Compliance Initiatives for Fiscal Years 2020-2023, 84 Fed. Reg. 2,848 (Feb. 8, 2019).

² EPA, FY2020-FY2023 National Compliance Initiatives (June 7, 2019) [“Selection Memorandum”], https://www.epa.gov/sites/production/files/2019-06/documents/2020-2023ncimemo.pdf.

³ EPA, Transition from National Enforcement Initiatives to National Compliance Initiatives (Aug. 21, 2018), https://www.epa.gov/sites/production/files/2018-08/documents/transitionfromneitonci082118.pdf.

⁴ See 40 C.F.R. § 63.658.

⁵ EPA, Response to Public Comments Received (June 11, 2019) [“Response to Comments”], https://www.epa.gov/sites/production/files/2019-06/documents/nciresponsetocomment.pdf.