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EPA Finalizes National Compliance Initiatives for FY2020-FY2023

On June 7, 2019, the U.S. EPA Office of Enforcement and Compliance Assurance (OECA) finalized its National Compliance Initiatives (NCIs) for FY2020-FY2023. The NCIs represent EPA’s enforcement and compliance priorities. 

The final list of NCIs consists of the following:

  1. Creating cleaner air for communities by reducing excess emissions of harmful pollutants from stationary sources.

  2. Reducing hazardous air emissions from hazardous waste facilities.

  3. Stopping aftermarket defeat devices for vehicles and engines.

  4. Reducing significant noncompliance with National Pollutant Discharge Elimination System (NPDES) permits.

  5. Reducing noncompliance with drinking water standards at community water systems.

  6. Reducing risks of accidental releases at industrial and chemical facilities.

In general, the NCIs reflect EPA’s increased focus on compliance assurance rather than enforcement alone. This is consistent with EPA’s 2018 renaming of the National Enforcement Initiatives using the new NCI terminology. In selecting these new NCIs, EPA stated that it focused on increasing collaboration with states and tribes and encouraging the use of EPA’s “full range of compliance assurance tools,” including compliance assistance, self-audits, and informal and formal enforcement actions.

Notwithstanding EPA’s focus on compliance assurance, businesses should evaluate their operations in light of EPA’s initiatives because any alleged non-compliance still has the potential to result in enforcement actions.

Changes from FY2017-FY2019 NCIs

The new NCIs contain a number of notable changes from the FY2017-FY2019 NCIs.

“Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources"

EPA has significantly modified two previous NCIs – “Cutting Hazardous Air Pollutants” and “Ensuring Energy Extraction Activities Comply with Environmental Laws” – and combined them into a new NCI focused on reducing emissions of both volatile organic compounds (VOCs) and hazardous air pollutants (HAPs). For VOC emissions, the NCI will focus on significant sources of VOCs that have a substantial impact on air quality and that may adversely affect:

  1. NAAQS attainment.

  2. Vulnerable populations.

For HAPs, the NCI will focus on sources that have a significant impact on air quality and health in communities. Unlike its predecessors, this NCI does not focus on a particular industrial sector.

“Reducing Air Pollution from the Largest Sources"

EPA is returning its longstanding New Source Review (NSR) enforcement initiative to its “core program.” For well over a decade, EPA has used this enforcement initiative to pursue a wide variety of industries, such as electric utilities, refineries, and cement plants, claiming routine industry-wide violations of NSR permitting requirements. EPA now appears to believe that this initiative has run its course, citing:

  1. Greater than 80% reductions since 1997 in sulfur dioxide and nitrogen oxide emissions from the power sector.
  2. Installation of controls and/or commencement of investigations at ≥ 90% of facilities in the glass, cement, and acid manufacturing sectors.

Accordingly, EPA found that this NCI “no longer presents a significant opportunity to affect nonattainment areas or vulnerable populations nationwide.”

“Stopping Aftermarket Defeat Devices for Vehicles and Engines"

This new NCI will focus on stopping the manufacture, sale, and installation of defeat devices on vehicles and engines used on public roads as well as on non-road vehicles and engines. The elevation of this new initiative reflects the significant increase in EPA enforcement efforts in this area over the past several years. OECA reports that it has already resolved more than 30 such cases, which together involved more than one million illegal aftermarket parts.

“Reducing Significant Noncompliance with National Pollutant Discharge Elimination System Permits”

This new NCI replaces the NCI titled “Keeping Industrial Pollutants Out of the Nation’s Waters.” The new NCI focuses on all NPDES permittees, rather than just industrial contributors, and seeks to reduce significant NPDES noncompliance by 50% by the end of FY2022.

Outlook

This summer, OECA has stated that it will develop “implementation frameworks” for each NCI in collaboration with states and tribes, according to OECA’s FY 2020-FY2021 National Program Guidance. These implementation frameworks will focus on compliance assurance. However, OECA cautions that “formal enforcement will remain an important tool in the NCIs to address serious noncompliance and create general deterrence.”

© 2019 Beveridge & Diamond PC

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About this Author

Laura K. McAfee, Environmental Attorney,  Beveridge Diamond Law Firm
Principal

Ms. McAfee is a Principal in Beveridge & Diamond, P.C.'s Baltimore office, and is Co-Chair of the Firm's Air Practice Group and of the Oil and Gas Practice Group. Her practice is devoted primarily to Clean Air Act matters, including both environmental counseling and litigation. Ms. McAfee has represented petroleum refineries, chemical companies, trade associations, municipal waste combustors, pharmaceutical companies, natural gas companies, and others on a wide range of permitting and compliance issues under the Clean Air Act and comparable state laws, including air toxics (MACT/...

410-230-1330
Daniel B. Schulson, Environmental Attorney, Beveridge & Diamond Law Firm
Associate

Daniel Schulson applies rich and diverse experience gained from working in the Office of General Counsel at the U.S. Environmental Protection Agency (EPA) to clients’ challenges on a broad array of issues. He assists clients with many aspects of environmental and administrative law, including compliance counseling, permitting, due diligence, audits, commenting on agency rulemakings, administrative enforcement defense, and litigation. 

Examples of Mr. Schulson’s experience include:

  • Negotiating favorable administrative settlements with EPA and state regulators for alleged violations of environmental statutes, including the Clean Air Act, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Emergency Planning and Community Right-to-Know Act. 
  • Counseling clients on “voluntary disclosures” under EPA’s self-disclosure policy and similar state-based policies.
  • Defending a leading crop-protection company in a multi-million dollar EPA administrative enforcement action.
  • Representing leading crop-protection companies in FIFRA and Endangered Species Act federal litigation challenging product registrations.
  • Counseling companies on a wide range of permitting and compliance issues under the Clean Air Act and comparable state laws.
  • Preparing comments for companies and trade associations on both federal and state proposed air regulations.
  • Advising a global pharmaceutical company on the environmental aspects of a major transaction and conducting related due diligence.
  • Drafting a successful petition for review and subsequent state supreme court briefing in defense of a solid waste recycling company facing toxic tort claims brought by individuals alleging agricultural operations constituted a nuisance.

While at EPA, Mr. Schulson formulated effective litigation strategies to defend agency actions and advised senior Agency officials on matters arising under a variety of statutes including the Clean Air Act, Clean Water Act, and the Resource Conservation Recovery Act. Mr. Schulson was awarded an Agency commendation for outstanding counseling on administrative and regulatory law issues. He also was awarded a Department of Justice commendation for assisting in the successful defense of EPA's suite of greenhouse gas regulations.

Mr. Schulson also served as a Brookings Institution Congressional Fellow on the U.S. House of Representatives' Committee on Natural Resources. As a Fellow, he provided counsel to members of Congress and staff on legislation and oversight issues relating to energy production and mining on federal lands including U.S. offshore energy production, the Bureau of Land Management’s hydraulic fracturing rule, coal mining in the Powder River Basin, and the U.S.-Mexico Transboundary Hydrocarbon agreement.

(202) 789-6007
Joshua Van Eaton Energy Attorney
Principal

Josh helps clients resolve high-stakes compliance, enforcement, and litigation matters.

He brings the perspective gained from a distinguished U.S. government service career to provide clients with strategic counsel on air, water, and waste issues with a focus on mobile source emissions. He also litigates those matters and advises on proactive environmental compliance strategies.

Prior to joining Beveridge & Diamond, Josh served as Senior Trial Attorney in the Environmental Enforcement Section of the Environment and Natural Resources Division (ENRD) of...

202.789.6033
Grant Tolley, Beveridge Diamond, environmental lawyer
Associate

Grant maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. Grant joined the firm following his graduation from the Georgetown University Law Center.

Prior to joining Beveridge & Diamond, Grant served as a law clerk for the Environmental Protection Agency (EPA) and worked as a student attorney for the Institute for Public Representation, Environmental Litigation Clinic, where he prepared an amicus brief in support of EPA’s Cross-State Air Pollution Rule Update in a challenge pending before the D.C....

(202) 789-6063