Every four years under its National Enforcement and Compliance Initiatives (NECIs), the Environmental Protection Agency (EPA) identifies national environmental issues of significant concern.
The agency then focuses its resources on the most serious and widespread environmental issues by developing and implementing national program initiatives. The primary goal is to protect human health and the environment by using the NECIs to hold parties responsible as well as to compel such parties to return to compliance.
Currently, the EPA is seeking public comment by March 13, 2023 on its NECIs for fiscal years (FY) 2024-2027, which can be found here by clicking this link.
The EPA will use three criteria to evaluate its existing and proposed new initiatives:
- The need to address serious and widespread environmental issues and significant violation, particularly in overburdened and vulnerable communities
- Areas where federal enforcement can aid in obtaining national consistency, a level playing field, and regulatory compliance
- Align with the EPA’s strategic plan, in particular tackling Climate Change (CC) and advancing Environmental Justice (EJ).
Specifically, the agency seeks comment on its proposal to continue the following four fiscal year 2020-2023 national initiatives in fiscal year 2024-2027:
- Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants
- The EPA plans to continue this initiative, focusing on processes with continued widespread noncompliance: flares, storage tanks, wastewater treatment and incineration/combustion.
- The agency can advance EJ and CC by prioritizing inspections at sources impacting vulnerable or pollution-burdened communities and seek the reduction of methane emissions that contribute to CC.
- Reducing Risks of Accidental Releases at Industrial and Chemical Facilities
- The EPA seeks to focus on enforcement responses to catastrophic accidents and advancing EJ and addressing CC by increasing inspections in vulnerable and overburdened areas, including when selecting facilities for inspection.
- Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (NPDES) Program
- The EPA seeks to focus on the worst effluent violators and reducing significant noncompliance rates.
- The agency seeks to expand its focus to include municipal permittees covered under a general permit, where unlawful discharges can cause impact overburdened communities.
- The EPA proposes remedies in enforcement actions to advance climate resiliency
- Reducing Non-Compliance with Drinking Water Standards at Community Water systems
- The EPA indicated that while progress has been made, more improvement in compliance is needed, including for health-based violations of the Lead and Copper Rule, the Disinfection Byproducts Rule and the Ground Water Rule. The EPA will focus on these rules.
- The agency would seek to increase inspections at systems serving overburdened communities and would consider CC resiliency where appropriate.
The EPA also seeks comment on its proposal to include two potential new NECIs and two other areas for further evaluation as potential NECIs.
The two potential new NECIs are:
- Mitigating CC
- The EPA seeks to combat CC by focusing on
- reducing non-compliance with the illegal import, production, use and sale of hydrofluorocarbons (HFCs) pursuant to the American Innovation and Manufacturing Act of 2020 (AIM Act);
- excess emissions from sources within certain industrial sectors, including oil and natural gas production facilities and municipal solid waste landfills; and
- The EPA seeks to combat CC by focusing on
- non-compliance with other requirements, such as mobile source, fuels and methane regulations.
- Addressing PFAS Contamination
- The EPA would focus on implementing the commitments it made in its 2021-2024 Per- and Poly-fluoroalkyl substances (PFAS) Strategic Roadmap.
- A PFAS NECI initially would focus on identifying the extent of PFAS exposures that pose a threat to human health and the environment and pursuing responsible parties.
- The agency would partner with states where appropriate and to the extent PFAS cleanup occurs under CERCLA, the EPA will develop a CERCLA enforcement discretion and contribution protection settlement policy.
- Addressing PFAS Contamination
The two areas for further evaluation as potential NECIs are:
- Reducing Exposure to Lead
- The EPA already is tackling lead contamination in all media. The agency is addressing lead concerns in paint, drinking water, soil, and air emissions. The EPA is seeking comment on whether its lead enforcement commitments should be added as a new NECI.
- Addressing Coal Combustion Residuals (CCR)
- The EPA is already addressing noncompliance with its regulations for the safe disposal of CCRs (i.e., coal ash from coal-fired power plants). The agency indicates approximately half of the CCR facilities are located in eight states: IA, IL KY, MI, MO, NC, and TX. The EPA is soliciting comment on whether to add a CCR NECI to reduce noncompliance.
Finally, agency seeks comment on whether any other areas should be considered for NECIs, including two successful NECIs in FY 2023-2023 that it proposes to return to its standard enforcement program (i.e, not pursue any longer under a national initiative):
- Reducing Toxic Air Emissions from Hazardous Waste Facilities
- Stopping Aftermarket Defeat Devices for Vehicles and engines.
No crystal ball is needed to determine the EPA’s priorities. They are clearly revealed by the agency’s proposed NECIs for FY 2024-2027!
While a crystal ball might foreshadow if your operations may face challenges under these future NECIs, you have an opportunity now to affect the future by providing comments by March 13th on the agency’s proposed national initiatives.
- Senior Attorney
Laura L. Romeo is a senior attorney in the firm's Bloomfield Hills office and Co-leader of Plunkett Cooney’s Environmental & Energy Practice Group. Ms. Romeo has numerous years of experience focusing on environmental, energy ...
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