On September 15, 2015, the United States Environmental Protection Agency (EPA)  proposed three new National Enforcement Initiatives (NEIs) that it is considering for the upcoming enforcement cycle.  EPA’s proposal would be a significant expansion of the EPA’s NEIs and represents the first time in six years that the EPA has proposed substantial changes or additions to its enforcement priorities.   EPA selects these initiatives as a vehicle for prioritizing the use of its civil and criminal enforcement resources across the regions. EPA has nominated the following three new areas for the upcoming enforcement cycle:

  1. "Protecting Communities from Exposure to Toxic Air Emissions"

Organic Liquid Storage Tanks: EPA is proposing to expand the existing air toxics NEI (which covers flares and leaks) to focus on excess air emissions from large storage tanks. In particular, over the last several years, EPA’s enforcement program has been focusing on volatile organic compounds and hazardous air pollutant emissions through the use of advanced remote monitoring techniques such as infrared cameras. EPA is pursuing emissions associated with storage tank control systems, design flaws, and the expansion of production volumes without corresponding increases in emissions control. The expansion of the NEIs to include “storage tanks” comes on the heels of EPA’s recent settlement with Noble Energy, Inc. and several other settlements in which EPA has secured storage tank inspection and repair programs. The regulated community should expect that EPA will be focused on aboveground storage tanks across sectors.

Hazardous Waste Air Emissions: EPA is also proposing to focus on air toxics emissions resulting from the handling of hazardous waste at treatment, storage, and disposal facilities (TSDFs) and large quantity generators (LQGs) that are not properly controlling hazardous waste releases to the air as required by regulation. EPA states that it is concerned about widespread violations of the air emission requirements under the Resource Conservation and Recovery Act (RCRA), including improper use of monitoring and control devices by facilities, resulting in releases of emissions from RCRA regulated units. 

  1. "Keeping Industrial Pollutants out of the Nation's Waters" – EPA has identified the mining, chemical manufacturing, food processing, and primary metals manufacturing sectors as the top contributors to surface water pollution. EPA is seeking to address pollution discharge in excess of permit limits and create a national enforcement approach for companies that operate in more than one state. EPA’s interest in industrial sources of wastewater represents a significant shift away from its Clean Water Act efforts of the last 20 years, which have focused almost exclusively on discharges from municipal wastewater systems and treatment plants.   
  2. "Reducing the Risks and Impacts of Industrial Accidents" – EPA is proposing to focus on reducing the risks and impacts of industrial accidents involving highly toxic substances. EPA will concentrate its efforts on the facilities that are considered “high risk” based on their proximity to densely populated areas, the quantity and number of extremely hazardous substances used, or the facility’s history of significant accidents. This expanded focus on risks from toxic industrial accidents represents a continuation of EPA’s aggressive use of Clean Air Section 112(r) enforcement authorities under the Clean Air Act’s General Duty Clause and risk management programs.    

EPA is now seeking public comment on this list of potential NEIs as well as comment on which of the current NEIs should continue, be expanded, or returned to the standard enforcement program. The public is also invited to propose any other areas for consideration. The current NEIs for the FY2014-2016 cycle include:

  1. Reducing air pollution from the largest sources;
  2. Cutting toxic air pollution;
  3. Assuring energy extraction and production activities comply with environmental laws;
  4. Reducing pollution from mineral processing operations;
  5. Keeping raw sewage and contaminated stormwater out of our nation's waters; and
  6. Preventing animal waste from contaminating surface and ground water. 

All comments must be submitted by October 14, 2015, through regulations.gov to be considered by EPA. EPA will then publish the final selection of the NEIs in the National Program Manager Guidance (NPM Guidance), which will in turn be released for public comment. EPA has indicated it will not extend the October 14 deadline in order to ensure timely release of the NPM Guidance so that EPA regions, states, and tribes may use the guidance in their annual planning processes.