On February 12, 2018, the U.S. Environmental Protection Agency (EPA or “Agency”) released its FY 2018-2022 EPA Strategic Plan (“the Plan”), the primary agenda for EPA’s implementation of three over-arching goals set by Administrator Scott Pruitt, as follows:
- Core Mission: “[P]rovide Americans with clean air, land, and water, and ensure chemical safety.”
- Cooperative Federalism: “Rebalance the power between Washington and the states….”
- Rule of Law and Process: “Administer the law…to refocus the Agency on its statutory obligations under the law.”
Significantly, the Plan seeks to “sharply refocus” EPA on its role of supporting states and federally-recognized Indian tribes as primary implementers of environmental programs. Signaling potentially diminished resources, it states that EPA will streamline programs and processes and reduce duplication of efforts. The Plan also calls for greater transparency. For each of these goals, the Plan establishes the objectives outlined below. Regulated industries and other stakeholders should evaluate the potential impacts of these new policy, management, and enforcement priorities on their own sites, products, and activities.
As with many EPA strategic plans through the years, the Agency’s Plan reflects its administration’s stated policies. Thus, the Plan refers to policy goals such as investment in infrastructure in tandem with EPA’s goals to, for instance, accelerate environmental impact and permit reviews. The Plan also highlights the need to “maximize flexibilities provided by law” to consider unique state circumstances when making regulatory and policy decisions. As compared to EPA’s more expansive strategic plans for fiscal years 2011-2015 and 2014-2018, there is no mention of climate change, which had been featured as a top Agency goal in both of its most recent prior plans. In addition, the tone of the enforcement discussion shifts somewhat to emphasize cooperative federalism and prioritize cleaning up hazardous waste sites. Unlike prior plans, EPA does not enumerate specific benchmarks for its enforcement program. Instead, many of the elements of the core mission simply reflect the scope of the Agency’s jurisdiction and its goals of carrying out established programs.
Goal 1: Core Mission
With respect to its first goal, EPA identified four objectives: (1) improve air quality; (2) provide for clean and safe water; (3) revitalize land and prevent contamination; and (4) ensure safety of chemicals in the marketplace. Consistent with these objectives, EPA seeks to accomplish the following by September 30, 2022:
- Air Quality: To improve air quality, EPA states that it will reduce the number of nonattainment areas from 166 to 101. The Plan proposes to accomplish this strategic measure by, among other actions, developing regulations and guidance to implement standards, addressing transported air pollution, and improving the efficiency and effectiveness of the State Implementation Plan/Tribal Implementation Plan (SIP/TIP) process. The Agency also plans to prioritize efforts to “reduce the production, import, and use of ozone depleting substances (ODS)” through reviewing safer alternatives under the Montreal Protocol.
- Water Quality: To provide clean and safe water, EPA identifies three strategic measures: (i) reduce the number of community water systems out of compliance with health-based standards, (ii) increase the investment of non-federal dollars for EPA water infrastructure finance programs, and (iii) reduce the overall square mileage of watershed with non-compliant surface waters. To accomplish these measures, the Plan states that EPA will improve and update the nation’s water-supply infrastructure through increased financing and strengthened compliance with state and tribal partnerships.
- Land Contamination: To revitalize land and prevent contamination, EPA identifies four strategic measures that make additional Superfund and brownfield sites and Resource Conservation and Recovery Act (RCRA) corrective action facilities ready for anticipated use (RAU). The Administrator previously identified top priority Superfund sites and plans to implement recommendations from EPA’s Superfund Task Force to expedite cleanup actions. In accelerating the pace for these actions, the Plan also emphasizes protecting the environment and human health by preventing future releases of contamination. The Plan calls for EPA to engage stakeholders at all levels to make cleanup and land revitalization decisions. EPA recognizes that the discovery of new pathways and emerging contaminants, such as per- and polyfluoroalkyl substances (PFAS) may pose a challenge to these initiatives.
- Chemical and Pesticide Safety: In the wake of passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act in 2016, EPA identifies three strategic measures concerning the Toxic Substances Control Act (TSCA): (i) complete all EPA-initiated TSCA risk evaluations for existing chemicals, (ii) complete all TSCA risk management actions for existing chemicals, and (iii) complete all TSCA pre-manufacture notice final determinations. EPA also identifies two strategic measures with respect to pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA): (i) complete all FIFRA-mandated decisions for the pesticide registration review program, and (ii) reduce pesticide registration decision timeframes by an average of 60 days.
Goal 2: Cooperative Federalism
With respect to cooperative federalism, EPA identified two objectives: (1) enhance shared accountability; and (2) increase transparency and public participation. In the spirit of cooperative federalism (in which the responsibility for environmental protection is shared among the federal, state, tribal, and local governments), the Plan focuses on improving shared governance through initiatives such as streamlining federal review of permits and state/tribal actions. The Plan also emphasizes strengthening intergovernmental consultation among governors to receive diverse comments on the impacts of prospective regulations. The promotion of cooperative federalism where the states and tribes take the lead in enforcement is consistent with this Administration’s stated policy to decrease the size of the Agency, including its fiscal proposal for 2019 that reduces the budget for EPA by more than 23 percent.
The Plan recognizes the importance of compliance assurance and the need to implement innovative and cost-effective ways to enhance compliance monitoring among the federal, state, tribal, local, and industry partners. With regard to international partnerships, EPA says that it will collaborate with international partners to more closely align environmental laws and governance with U.S. standards in order to “help level the playing field for U.S. industry.” This is a significant concern for many companies managing environmental obligations across multiple regions of the world, and this is an issue to watch.
To increase transparency and public participation, EPA states that it will pursue a community-driven approach to implement effective solutions. In connection with increased transparency, EPA aspires to eliminate its backlog of Freedom of Information Act (FOIA) requests by September 30, 2022. EPA also will work on web-based tools to provide two-way communication between the public and environmental agencies to increase public participation.
Goal 3: Rule of Law and Process
With respect to its third goal, EPA says that it will “reinvigorate the rule of law and process as it administers environmental regulations as Congress intended” by refocusing the Agency on its “core” statutory obligations. EPA states that one of its highest priorities is to create consistency and certainty for the regulated community, and to accomplish this task, the Plan identifies five objectives: (1) compliance with the law; (2) create consistency and certainty; (3) prioritize robust science; (4) streamline and modernize; and (5) improve efficiency and effectiveness.
- To address compliance with the law, the Plan identifies strategic measures to (i) reduce the average time from violation identification to correction, and (ii) increase the environmental law compliance rate. For civil enforcement, the Plan emphasizes that delegated states are the primary enforcers and that EPA will cooperate.
- Communicating a theme of consistency and certainty, EPA identified two strategic measures: (i) meet 100 percent of the legal deadlines imposed on EPA, and (ii) reduce the hours of unnecessary or duplicative reporting burdens on the regulated community by 10 million hours (the current baseline is estimated at around 173.8 million hours). The Plan emphasizes the importance of strengthening relationships with industry sectors to have a better understanding of the regulated communities’ needs in order to promote consistency. Because EPA allocates significant resources to legal challenges for missing statutory or regulatory deadlines, EPA stated its desire to perform a “systematic mapping of the processes associated with these obligations” to improve Agency compliance. In addition, EPA will catalog its statutory responsibilities by 2019.
- Stating that it is prioritizing robust science, EPA’s Plan proposes to increase the number of research products, but does not offer specificity. The Plan focuses on enhancing scientific tools pertaining to air quality, safe and sustainable water resources, land remediation, chemical safety, and human health risk assessments.
- To streamline and modernize, the Plan establishes a goal of reaching all permitting-related decisions within six months by September 30, 2022. During the next five years, EPA will collect and report permitting data for each of the Agency’s permitting programs to better understand how to streamline these processes. EPA plans to continue to implement digital tools to modernize the permitting process. It also plans to improve efficiency in the permitting process without sacrificing environmental results by, for example, expanding the scope of minor permit modifications so that fewer permit reviews are required. While the Plan does not mention this Administration’s “One Agency, One Permit” concept, its general policy statements support the concept, where only one lead agency would be responsible for the environmental review of a major project. This form of streamlining would have significant implications for much of the regulated community.
- The Plan discusses the modernization and improvement of the Agency’s business practices, such as the procurement process, to replace outdated or non-existent policies. EPA proposes to implement a number of information and data management systems that will modernize the data collection and storage processes at the Agency and protect the Agency from any cybersecurity threats. The Plan also prioritizes quality training and management of its workforce.