As has been its tradition for nearly 25 years, the Environmental Protection Agency ("EPA") announced that it is seeking public comment on its National Enforcement and Compliance Initiatives ("NECIs") for fiscal years 2024-2027. The January 12, 2023 notice follows a December 2022 memorandum that updated EPA's policy on enforcement and compliance measures to formally revise the nomenclature of its programs to "National Enforcement and Compliance Initiatives" from the previous title, "National Compliance Initiatives." This change sends a clear signal that EPA intends to reemphasize the role of federal civil (judicial and administrative) and criminal enforcement as the Agency strives to promote greater compliance and hold accountable those that violate EPA's environmental laws or contribute to serious environmental problems.
EPA seeks public comment regarding "which of the current six national initiatives should continue in the FY 2024-2027 cycle", noting that those not retained will be "returned to the standard or "core" enforcement program at the end of FY 2023." Returning an initiative to the core program would indicate that the Agency made significant progress and that the issue is no longer so serious or widespread as to require the added focus and resources given to NECIs. EPA historically has made decisions with respect to these initiatives using primary criteria, including the nature and extent of the noncompliance within the initiative area and alignment with the Agency's Strategic Plan. This cycle, EPA intends to pay particular attention to climate change and environmental justice – two of its strategic priorities – in the selection and implementation of each of the initiatives.
EPA proposes to continue four of the six existing initiatives into the FY 2024-2027 cycle, indicating the Agency believes those remain key nationwide compliance concerns:
- Creating Cleaner Air for Communities by Reducing Excess
Emissions of Harmful Pollutants
- EPA plans to narrow its focus on processes it has identified to have continued widespread noncompliance—including flares, storage tanks, wastewater treatment, and incineration/combustion—and to prioritize inspections at sources impacting vulnerable or pollution-burdened communities.
- Reducing Risks of Accidental Releases at Industrial and
- EPA plans to focus on enforcement responses to "catastrophic accidents" and increase inspections at facilities in vulnerable and overburdened communities, such as fenceline communities.
- Reducing Significant Non-Compliance in the National
Pollutant Discharge Elimination System ("NPDES")
- EPA plans to focus on addressing the worst effluent violators and further reducing the effluent violation component of the significant non-compliance rate. This NECI would expand to include municipal permittees that are covered under a general permit, which highlights the need to work collaboratively with states to achieve progress.
- Reducing Non-Compliance with Drinking Water Standards at
Community Water Systems
- EPA plans to focus on the most common health-based violations in the Lead and Copper Rule, the Disinfection Byproducts Rule, and the Ground Water Rule. While the agency notes the progress achieved in improving the safety of drinking water, it highlights the still-pervasive nature of the violations and seeks further improvement through increased inspections, including at systems serving vulnerable and overburdened communities.
EPA proposes returning to the core program "Reducing Toxic Air Emissions from Hazardous Waste Facilities" and "Stopping Aftermarket Defeat Devices for Vehicles and Engines." The Agency cites its comprehensive enforcement statistics along with estimates of pounds of pollution prevented through those actions, and believes it has taken effective action to significantly raise awareness to regulators and the regulated community on both of these topics.
EPA is inviting comment on two potential new NECIs, namely climate change mitigation and per- and poly-fluoroalkyl substances ("PFAS").
- The agency differentiates this climate change NECI as focused on tackling climate change mitigation whereas its incorporation of climate considerations across all NECIs strategic goal pertains more to climate change resilience. The agency intends to use available compliance and enforcement tools to tackle illegal import, production, use, and sale of hydrofluorocarbons ("HFCs"); reduce excess emissions from sources within specific industrial sectors, including municipal solid waste landfills and oil and natural gas production facilities; and reduce non-compliance with other requirements (e.g., mobile source, fuels, and methane regulations).
- The proposed PFAS NECI would target effective implementation of the commitments to action made in EPA's 2021-2024 PFAS Strategic Roadmap. EPA would focus on identifying the extent of PFAS exposure and plans to work with State partners to supplement PFAS enforcement work enacted by State regulators.
Lastly, EPA is considering two additional NECIs, namely reducing exposure to lead, and addressing coal combustion residuals ("CCR"). The Agency requests comment on these two potential NECIs, recognizing that its bandwidth for enforcement across more areas is limited. Finally, EPA invites interested parties to recommend other areas for consideration as an NECI as well.
EPA's comment period will remain open for 60 days from the date on which the notice was published in the Federal Register, until March 13, 2023. Companies should carefully consider how these proposals might impact their operations and submit comment as necessary. We will continue to monitor relevant developments.
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