On September 15, 2015, EPA solicited public comment on its upcoming cycle of National Enforcement Initiatives (NEI) for fiscal years (FY) 2017- 2019.  EPA is proposing to adopt three new enforcement initiatives and is requesting input as to whether the existing six NEI should continue as enforcement priorities. Notably, the new initiatives would target a large swath of industrial sectors, including: chemical plants, refineries, bulk storage facilities, hazardous waste facilities, large quantity generators of hazardous waste, mining, food processing, primary metals manufacturing, and certain other industrial facilities. The initiatives continue to dovetail with the Agency’s programmatic interest in addressing environmental justice. The notice is also noteworthy for proposing to include surface water discharges from food processors in a national enforcement initiative.  EPA has not added a new enforcement initiative in many years (since before FY 2011). Thus, it seems likely that EPA will adopt one or more of the new initiatives identified in the proposal.  Comments must be received no later than October 14, 2015.

EPA has identified a number of emerging and existing environmental issues that could be subjected to heightened federal enforcement scrutiny in the next three years through the NEI paradigm. According to EPA, these environmental problems are national in scope, based largely on noncompliance with existing environmental requirements, and would benefit from federal enforcement attention.

Existing NEI

The existing NEI focus on six areas: (1) reducing air pollution from the largest sources (e.g., coal-fired power plants and acid, glass, and cement manufacturing facilities); (2) cutting toxic air pollution from leaks, flares, and excess emissions; (3) ensuring energy extraction and production activities (e.g., natural gas development) comply with environmental laws; (4) improving waste-management practices at mining and mineral processing facilities; (5) controlling municipal discharges of raw sewage and contaminated stormwater; and (6) preventing animal waste from polluting surface waters and groundwater.

New NEI

EPA is proposing a new and expanded air toxics initiative to reduce air emissions in communities by targeting (1) large storage tanks holding organic liquids at refineries, chemical plants, and other bulk storage facilities and/or (2) air emissions from hazardous waste facilities (both large-quantity generators and treatment, storage, and disposal facilities). Consistent with this enforcement interest in emissions from storage tanks, EPA recently levied a significant fine against an energy company for alleged violations associated with VOC emissions from condensate storage tanks. See King & Spalding Client Alert.

The Agency’s second new initiative would target food processing, mining, chemical manufacturing, and primary metals manufacturing facilities. In the notice, EPA explained that these sectors “contribute a disproportionate amount” of nutrients and metals, and “are responsible for contributing to surface water pollution.”  Under the initiative, EPA would target companies that violate permitted wastewater discharge limits.

The third new initiative would formalize an uptick in Agency enforcement actions under Section 112 of the Clean Air Act (CAA), aimed at reducing the risks of industrial accidents and releases at what EPA deems to be the highest risk facilities, i.e., ones producing, processing, storing, and using extremely hazardous substances that are acutely toxic or cause serious accidents. Indeed, the Office of Enforcement and Compliance Assurance’s current National Program Manager guidance expressly identifies these types of cases for enforcement attention. EPA typically relies on its authority under CAA Section 112 to investigate and prosecute companies following explosions or accidents at facilities, and typically seeks large penalties in these cases.  Under the initiative, EPA would target facilities and chemicals that pose “the greatest risks, with a goal of increasing industry attention to preventing accidents, instead of addressing problems after accidents happen.”

Finally, EPA indicated that it plans to employ “Next Generation Compliance” approaches in connection with its   selected National Enforcement Initiatives.  According to EPA, the Agency will use the latest monitoring technologies and data analytics to identify problems and target particular facilities for enforcement. Next Generation Compliance is a strategy that the enforcement office has sought to implement since FY 2012. One aspect of the strategy focuses on  wider use of new emissions monitoring technology. EPA routinely seeks such technology in settlement of enforcement actions. EPA released a policy in January 2015 memorializing this practice.

Requiring companies to field test new technology enables EPA to advance new compliance monitoring methods for future regulations. However, when considering whether to adopt Next Gen air monitoring technologies in a settlement, companies should be aware of a unique regulatory aspect of the Clean Air Act—the “credible evidence rule.” The credible evidence rule allows any credible evidence, not simply the compliance demonstration method, to be used to establish violations of Clean Air Act emissions standards. Thus, these advanced air emissions monitoring tools may expose settling companies to future litigation based not on the compliance demonstration method of the applicable air rule, but rather on untested and unproven Next Gen technology.  This could lead to an increase in citizen enforcement, especially in communities with environmental justice concerns, where EPA has been providing funds (through grants) to invest in modern monitoring technology.

Companies operating in one of EPA’s NEI may find themselves subject to heightened enforcement attention. Accordingly, companies should consider reviewing their compliance programs to minimize potential enforcement exposure.  Further, companies should consider submitting comments and data in response to the proposed notice to demonstrate to EPA that a national enforcement focus is not warranted in one of the enumerated areas subject to consideration as an NEI.