EPA Floats Enforcement Priorities for FY 2017-2019

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By Renee Schoof

Sept. 14 — The Environmental Protection Agency has proposed its national enforcement priorities for fiscal years 2017-19, including some new initiatives focusing on air toxics and industrial water pollution, according to a notice scheduled for publication Sept. 15.

The agency is seeking comment until Oct. 14 on whether, along with the new priorities, it should keep the current six areas of focus—air pollution from power plants and other largest sources; toxic air pollution; pollution from land-based natural gas extraction; pollution from mineral processing operations; raw sewage and contaminated stormwater; and animal waste pollution in water.

The new initiatives proposed are an expansion of the initiative on toxic air emissions to include a focus on organic liquid storage tanks and hazardous waste facilities; water pollution by mining, chemical manufacturing, food processing and primary metals manufacturing; and reducing the risks and impacts of industrial accidents involving highly toxic substances.

The agency, which selects its National Enforcement Initiatives every three years, also is asking for comment on whether there are any other areas that should be added.

Seeking to ‘Make a Difference.'

“National Enforcement Initiatives are selected to focus on important national environmental problems where noncompliance is a significant part of it and where we think a federal enforcement program can make a difference,” Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance, told Bloomberg BNA on Sept. 10 outside a conference in Arlington, Va.

The EPA makes its suggestions based on data from investigations and the public interest, but also “understanding we live in a time of restrained resources,” she said.

The Sept. 15 notice referred to EPA's declining budget over the past five years, and said, “so we need to keep resource constraints very much in mind as we consider taking on new work.”

Significant Modification of Priorities

This is the first time in the past six years that the EPA has proposed a significant modification of or expansion to its three-year National Enforcement Initiatives, Adam Kushner, an attorney at Hogan Lovells who formerly was director of EPA's Office of Civil Enforcement and director of the Air pision, told Bloomberg BNA Sept. 14.

The agency's proposal “signals that EPA is ready to devote significant additional resources to enforcement efforts in these areas,” Kushner said.

The proposed new focus on risks from toxic industrial accidents represents an expanded interest to use Clean Air Section 112(r) enforcement authorities under the general duty clause, Kushner said. There have been a number of significant industrial accidents in the past several years that have caused serious injuries and deaths. It appears that the EPA would propose to devote additional resources to make sure appropriate risk management plans are in place, Kushner said.

In recent years, EPA has expansively interpreted its authority under Section 112 beyond what Congress intended in the law, Kushner said. The EPA should be sure to remain true to the plain language of the statute and congressional intent, should it move forward, he said.

Focus on High-Risk Facilities

In its notice for comment, the EPA said about 150 catastrophic accidents occur every year, and that about 2,000 facilities are considered high risk because of their proximity to densely populated areas, the extremely hazardous substances they use or their history of accidents.

The EPA said it was considering expanding its air toxics initiative based on what it has learned about the sources of the largest toxic emissions and the causes of the releases. The agency said optical remote-sensing techniques have shown that volatile organic compound and hazardous air pollutant emissions from storage tanks “can greatly exceed the permitted and/or estimated emissions.”

The agency also said its observations of hazardous waste sites and publicly available compliance information show what appear to be “widespread violations of the air emission requirements under the Resource Conservation and Recovery Act (RCRA).”

All of the new priorities will involve the use of Next Generation Compliance, which involves monitoring technologies, data analytics and publicly available results, according to the EPA's notice seeking comment.

Mining Industry Opposed to Listing

The mining industry indicated that it would ask EPA to remove it from the enforcement priorities list.

Luke Popovich, vice president for external communications of the National Mining Association, told BNA in an e-mail: “EPA has failed since 2007 to provide a clear set of performance-based strategy goals or a well-defined exit plan for the mining and mineral processing enforcement initiative. In a time of severely constrained budgetary resources, it is the agency's duty to demonstrate it is appropriately allocating limited federal resources on agency programs. EPA's OECA (Office of Enforcement and Compliance Assurance) is no exception. Given that the mining and mineral processing sector has been an enforcement priority for almost 10 years and has seen notable increases in compliance rates, NMA believes that the mining and mineral processing industry should be removed from the priority list and returned to the core enforcement program.”

In other cases, regulated industries tend not to comment because they don't want to draw attention to their own sectors or those of others, said Granta Nakayama, an attorney with King & Spalding who was the EPA assistant administrator for the Office of Enforcement and Compliance Assurance from 2005 through 2009. “It's not really a two-way dialogue,” he said.

To contact the reporter on this story: Renee Schoof at rschoof@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com