EPA’s 2024 - 2027 Enforcement Priorities Officially Take Effect
Members of the regulated community this year should remain particularly vigilant for heightened enforcement and compliance activity from the U.S. Environmental Protection Agency (EPA or the Agency) and delegated state enforcement authorities in areas identified in the Agency’s 2024 – 2027 National Enforcement and Compliance Initiatives (NECIs or Initiatives). EPA updates the NECIs every four years, and uses them as guiding posts for determining how to prioritize issue areas and expend resources accordingly.
As 2023 ended, EPA Administrator Michael Regan tweeted that “[o]n day one as Administrator, I committed EPA to aggressively deliver on [President Biden’s] climate and environmental agenda… EPA has been hard at work reducing harmful pollution across the country, and we have no intention of slowing down.” EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA) corroborates this posture in a memorandum announcing the 2024 - 2027 NECIs. Indeed, the memo outlines what OECA perceives to be “the most serious and widespread environmental problems facing the United States,” and discusses the enforcement and compliance areas the Agency will prioritize in response to these issue areas. The memo encourages state-delegated enforcement and compliance agencies to do the same.
Though OECA’s core enforcement program does not discriminate in the types of cases it chooses to pursue, OECA more aggressively attempts to discover, pursue, and prosecute cases that fall within one of the NECI categories. OECA relied on three criteria in formulating this set of Initiatives: (1) the need to address “serious and widespread” environmental issues and “significant” violations that effect human health and the environment, especially is “overburdened and vulnerable communities;” (2) areas where “federal enforcement authorities, resources, and/or expertise” are needed to “promote a level playing field;” and (3) alignment with EPA’s Strategic Plan. Numerous factors go into the Agency’s determination that a community is “overburdened and vulnerable,” though EPA’s EJScreen is the main tool the Agency uses to map and screen these factors onto any given geographical area. Members of the regulated community should review their location on EJScreen and determine the demographic considerations EPA may take into account when conducting inspections and investigations at their facilities. Indeed beyond being implicated in almost every NECI, environmental justice (EJ) has been a top priority for EPA and the Biden Administration generally.
This advisory will briefly discuss the three new 2024 - 2027 NECIs. It will also discuss the three NECIs carried over into this cycle from the previous, as well as the three discontinued NECIs.
Mitigating Climate Change
Whereas the Strategic Plan identifies climate change as the Agency’s top priority, it is wholly unsurprising to see climate change mitigation listed as a NECI. To effectuate this Initiative, EPA intends to leverage enforcement authority in three specific vocabularies: (1) methane emissions from oil and gas facilities; (2) methane emissions from landfills; and (3) the use, importation, and production of hydrofluorocarbons (HFCs).
Methane and HFCs are both climate change precursors. In terms of the Agency’s tools available to address methane, the memo specifically notes that the Agency will be “focusing on long-standing air pollution requirements, such as New Source Performance Standards at oil and gas facilities and landfills.”
HFCs are common to the heating, ventilation, air conditioning and refrigeration (HVACR) industry. They are currently subject to a strict phase-out schedule under the American Innovation and Manufacturing Act. OECA thus will likely focus criminal and civil enforcement of the AIM Act by focusing on the HVACR industry.
Addressing Exposure to Per- and Polyfluoroalkyl Substances (PFAS)
Consistent with the Biden Administration’s plans to execute on their PFAS Strategic Roadmap, OECA has decided to focus on PFAS contamination throughout the country, though the Agency admits that the regulatory framework for enforcement “continues to develop.” Agency focus here will be on achieving site characterization, controlling ongoing releases, permit compliance, and endangerment issues when they arise.
EPA intends to do this through examining existing authorities like the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Safe Drinking Water Act (SDWA) and the Clean Water Act (“CWA”).
PFAS are ubiquitous in the environment and in daily life. They are commonplace in numerous consumer products, including nonstick cookware, personal care products, stain-resistant carpets and upholstery, and water-resistant fabrics used in rain jackets, umbrellas and tents. Industry should also be aware that PFAS are a central ingredient in many aqueous film forming foams, a fire suppressant used to extinguish flammable liquid fires like fuel fires.
Despite the omnipresent nature of these chemicals, the Agency notes that it will focus on “implementing EPA’s PFAS Strategic Roadmap and holding responsible those who significantly contribute to the release of PFAS into the environment, such as major manufacturers and users of manufactured PFAS, federal facilities that are significant sources of PFAS, and other industrial parties.” And if two specific types of PFAS, PFOA and PFOS, are listed as hazardous substances under CERCLA, OECA “does not intend to pursue entities where equitable factors do not support CERCLA responsibility, such as farmers, water utilities, airports, or local fire departments, much as OECA exercises CERCLA enforcement discretion in other areas.”
Protecting Communities from Coal Ash Contamination
EPA posits that noncompliance with the coal combustion residual (CCR) requirements under RCRA is more widespread than initially anticipated, and thus the Agency seeks to intensify enforcement activity here, specifically in EJ communities.
Retained and Modified NECIs
Reducing Air Toxics in Overburdened Communities (modified from previous cycle)
This initiative from the 2020 – 2023 cycle focused on addressing health and environmental effects from ozone National Ambient Air Quality Standards (NAAQS) exceedances, usually stemming from volatile organic compounds (VOCs) and hazardous air pollutant (HAP) emissions. Under the modified NECI, each EPA Region will look at their most overburdened communities (based on fenceline monitoring) and pick which HAPs it seeks to prioritize.
Though EPA admits regions will decide which HAPs they wish to focus on, the Agency does encourage investigation of several specific HAPs, including benzene, ethylene oxide, and formaldehyde.
Chemical Accident Risk Reduction (continued from previous cycle)
Operating under the assumption that many facilities insufficiently manage risk surrounding chemical accidents under Section 112(r) of the Clean Air Act (CAA), EPA has decided it will continue Agency focus under this NECI by inspecting and addressing noncompliance at facilities using anhydrous ammonia (NH3) and hydrogen fluoride (HF).
Originally promulgated in the 2017 – 2020 cycle, then again in the 2020 – 2023 cycle, this NECI’s original goals focused aggressively on widespread noncompliance regarding storage and handling for a litany of chemicals. Now, it appears OECA will narrow its enforcement and compliance focus to NH3, predominately used as an agricultural fertilizer and a refrigerant, and HF, commonly used in petrochemical manufacturing.
Note that on August 31, 2022, EPA proposed changes to its Risk Management Program (RMP) under CAA Section 112(r) to include new chemical accident prevention program requirements, emergency preparedness requirements, transparency requirements, and other changes to regulatory definitions expanding the Program’s authority.
Increasing Compliance with Drinking Water Standards (continued from previous cycle)
This priority officially became a NECI in the 2020 cycle, and was initiated to ensure the compliance of nearly 50,000 regulated drinking water systems with the SDWA. EPA is continuing to pursue these SDWA compliance goals, and notes it will “ramp up field presence, pursue strategic enforcement to reduce noncompliance, and offer more compliance assistance to prevent and address public health risks.” Overburdened communities will receive particularized attention from OECA here.
NECIs “Returned to Core Enforcement”
Besides the six NECIs described above, the following three 2020 – 2023 NECIs have been relegated down to EPA’s “core enforcement” program. Though no longer national priorities, EPA, its regional offices, and state-delegated authorities still find these Initiatives to be important and will continue to conduct inspections and pursue enforcement actions accordingly, especially in EJ communities that may be particularly vulnerable to the relevant issue.
Reducing Toxic Air Emissions from Hazardous Waste Facilities
Originally promulgated in 2017, this NECI focused on RCRA organic air emissions standards in overburdened communities. EPA relegated this NECI down to the core enforcement program citing success in over 100 enforcement cases, the development and deployment of training programs, and numerous ongoing monitoring and compliance actions.
Stopping Aftermarket Defeat Devices for Vehicles and Engines
OECA touts successes here like the development of a national enforcement program, resolution in over 130 cases, and achieving “general deterrence through robust enforcement.” The Agency does note that they will continue to “investigate and pursue enforcement against upstream manufacturers and distributors of defeat devices,” as well as continue to provide training and coordinate outreach initiatives with states and industry groups.
Reducing Significant NPDES Noncompliance
Finally, EPA notes that will be demoting this NECI given there has been a 50% reduction in “significant noncompliance” in this area. The Agency claims that prior to this NECIs listing, NPDES noncompliance was over 20%, meaning one out of every five permittees had “significant violations” of their permit every quarter, every year.
With a dramatic reduction of such violations accomplished, EPA “can now clearly see which facilities are in violation of their permit and can prioritize these facilities for enforcement or technical assistance.”