States, Groups Ask EPA to Exclude Initiative From Enforcement Priorities for FY 2014-16

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By Jessica Coomes  

Ohio, Pennsylvania, and some industry groups are encouraging the Environmental Protection Agency to exclude a new compliance initiative from the agency's enforcement priorities for fiscal years 2014 through 2016.

EPA sought comments on extending its six existing sector-based enforcement priorities for three additional years and also on including the Next Generation Compliance initiative, which emphasizes electronic emissions monitoring and reporting and making more information on compliance publicly available.

“The inclusion of the Next Generation Compliance Approach is a departure from the role of the National Enforcement Initiatives as a means to focus federal enforcement attention on the most important environmental problems, by redirecting resources toward internal agency logistical concerns rather than focusing enforcement attention on the sources of environmental problems,” the Pennsylvania Department of Environmental Protection told EPA in comments Feb. 27.


 

Next Generation Compliance “appears to simply be an attempt on the part of EPA to insert themselves in the issues historically managed by the states.”  
Pennsylvania Department of Environmental Protection

The department said the initiative would focus on entire sectors, not just the bad actors within a sector, and Next Generation Compliance “appears to simply be an attempt on the part of EPA to insert themselves in the issues historically managed by the states.”

EPA reviews its national enforcement initiatives every three years to determine where it may best apply its resources and to identify the most pressing environmental problems where noncompliance is a contributing factor.

Priorities for FY 2014 to FY 2016

EPA published a notice in the Federal Register on Jan. 28 seeking recommendations and comments on its enforcement priorities for fiscal 2014 to fiscal 2016. Comments were due Feb. 27 (18 DER A-1, 1/28/13).

Several commenters told EPA that the agency has not provided enough information about Next Generation Compliance.

“If U.S. EPA intends to pursue the 'Next Generation Compliance' approach, the agency should issue a separate Federal Register approach that fully explains the purpose, provides background information and data, impact on state and local air agencies, and total costs,” the Ohio Environmental Protection Agency said Feb. 26.

The American Chemistry Council said in comments that it does not know enough about the program to take a position on it.

“It would be premature to elevate Next Generation Compliance to the status of 'national enforcement initiative' before even the basic goals, milestones and significant action plans for the program have been developed and publicly vetted,” the trade association wrote Feb. 27.

Justification Should Be Vetted

The American Petroleum Institute said Feb. 27 that EPA should fully vet its justification for the program with the public before making it a national enforcement priority, but it said the “rushed” 30-day comment period “indicates there is no intention to do so.”

The Government Accountability Office said in a report released Jan. 9 that EPA has not developed a strategic plan for fiscal year 2012 to implement the Next Generation Compliance initiative, and the agency's failure to develop a plan could prevent the program from obtaining its long-term goals (07 DER A-25, 1/10/13).

In response to the GAO report, EPA said it will develop a strategic plan for the initiative in fiscal year 2013.

Current Priorities Outlined

EPA's current enforcement priorities, which were established for fiscal years 2011 through 2013, aim to achieve compliance in the areas of:

 

• sewage discharges from municipal infrastructure,

• hazardous waste at phosphoric acid facilities and high-risk mineral processing sites,

• new source review,

• toxic air emissions,

• energy extraction, and

• concentrated animal feeding operations.

 

EPA also received comments related to the specific sectors.

Mineral Processing, Air Toxics, Energy Extraction

The National Mining Association said the mining and mineral processing initiative should be removed because the sector has been a priority for eight years, and compliance rates have increased. EPA also has not provided clear goals or an exit plan for the initiative, the trade association said.

“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,” the National Mining Association said Feb. 27.

The Texas Pipeline Association urged EPA not to focus its enforcement efforts on the natural gas industry under both the air toxics and energy extraction priorities.

“The current Administration has repeatedly made clear that it views natural gas as part of the solution to the nation's clean energy needs, not part of the problem,” the association wrote Feb. 27. “EPA should not treat it as an area in need of enhanced enforcement focus.”

The American Petroleum Institute said petroleum refineries are not high-risk facilities that deserve scrutiny under the air toxics enforcement priority.

“The fact is that [hazardous air pollutant] emissions from petroleum refineries are well-controlled and present no significant risk to human health or the environment,” the trade association wrote.

Wastewater, Animal Feeding

Wastewater utilities urged EPA to focus its efforts on the integrated planning approach to manage stormwater and wastewater overflows rather than enforcing wet weather violations. In other comments, a coalition of environmental, food safety, and animal rights groups criticized the agency for failing to enforce actions against concentrated animal feeding operations (45 DER A-29, 3/7/13).

Meanwhile, the Florida Department of Environmental Protection (DEP) said EPA should reduce the scope of the enforcement initiatives.

“DEP suggests that EPA review its approach to oversight of state compliance and enforcement with the goal of increasing focus on compliance outcomes and minimizing the agency's bias towards enforcement,” the state wrote Feb. 22. “It is DEP's opinion that a state that dedicates resources to front-end compliance assistance, that exceeds federal inspection requirements, and that finds compliance in excess of 90 percent in all media (such as Florida), is achieving maximum environmental protection, and this should be the goal of EPA.

“By contrast, a state that prioritizes the pursuit of enforcement and collection of monetary penalties after non-compliance has occurred has unnecessarily placed its citizens and environment at risk.”

 


Comments on the enforcement initiatives are available at http://www.regulations.gov in Docket ID No. EPA-HQ-OECA-2012-0956.