Beveridge & Diamond
 

EPA Seeks Comment on Proposed National Enforcement Priorities for 2011-2013

Beveridge & Diamond, P.C., January 6, 2010

On January 4, 2010, the U.S. Environmental Protection Agency (“EPA”) published in the Federal Register its proposed enforcement priorities for fiscal years 2011-2013.  The proposed priorities, if finalized, will form the basis for targeted inspections, compliance assistance, and enforcement actions nationwide.  Comments are due January 19, 2010; the notice emphasizes that EPA will not extend this deadline.

Background

EPA sets national enforcement priorities every three years through a consultation process with EPA regions, states, tribal governments, and the public.  Enforcement priorities are selected according to three criteria: (1) environmental impact; (2) significance of noncompliance; and (3) the appropriateness of federal action to address the noncompliance.  

For each selected national priority area, EPA develops a strategy to achieve specific goals.  According to EPA’s website, these strategies:

  • describe the environmental or noncompliance problem;
  • discuss the reasons why the EPA chose to address the problem;
  • explain how the problem will be addressed; and
  • highlight the progress made by EPA action.

Once enforcement strategies for national priorities have been developed, EPA assembles teams of EPA headquarters and regional office staff to direct work and set benchmarks for specific strategies.  EPA also monitors implementation to ensure that sufficient progress is occurring to achieve the long-term goals set out in the strategy.  At the end of the three-year cycle, EPA may decide to continue the priority strategy into the next cycle or transition from priority status to EPA’s core enforcement program (the fundamental activities implemented by EPA, state, and local agencies to protect the environment).    

Preliminary List of 2011-2013 Proposed National Enforcement Priorities

As a first step in developing the 2011-2013 priorities, EPA solicited feedback from EPA regions, states, tribes, associations, and the public in Fall 2009.  Public comment during this initial phase was administered through the online National Enforcement and Compliance Assurance Priorities Discussion Forum on EPA’s blog in August 2009.  EPA requested feedback on three specific topics: EPA’s selection criteria for priorities, suggestions for future environmental priorities, and providing information for public use.

Based on the feedback received, EPA developed the following list of “priority candidates” for enforcement during fiscal years 2011-1013:

Air Toxics.  EPA is proposing to continue its 2008-2010 focus on national problem areas of leak detection and repair, flares, and toxics near schools.  EPA is also considering the addition of a geographic initiative to allow regions to identify and evaluate compliance of large sources of hazardous air pollutants in disproportionately affected geographic areas.

Concentrated Animal Feeding Operations (CAFOs).  EPA is proposing to focus on ensuring that CAFOs in the U.S. (approximately 19,000) comply with the Clean Water Act requirements to protect surface waters from animal waste.

Environmental Justice—Community Based Approach.  EPA is proposing geographically-based targeted enforcement activities in identified disadvantaged communities.  EPA regions would work with the communities to identify environmental and health threats within the geographic area to achieve maximum compliance with environmental regulations and protect human health and the environment.

Indian Country Drinking Water.  EPA is proposing greater compliance assistance, monitoring, and enforcement of drinking water quality in Indian Country to reduce threats to human health from consumption of contaminated drinking water.

Marine Debris.  EPA is proposing enforcement of newer permit requirements, such as the NPDES general permit for vessels, to eliminate discharges that contribute to marine debris.

Mineral Processing.  EPA is proposing stronger enforcement, including process-based inspections and EPA sampling, of solid and hazardous waste disposal requirements at mineral processing and mining facilities.

Wet Weather Municipal Infrastructure.  EPA is proposing to encourage utilities to carry out an ongoing process of oversight, evaluation, maintenance and replacement of stormwater and sewage system infrastructure. 

New Source Review / Prevention of Significant Deterioration (NSR/PSD).  EPA believes that many stationary sources have made modifications to facilities without applying for and obtaining NSR/PSD permits under the Clean Air Act.  The Agency is proposing to continue its 2008-2010 focus on compliance in four industry groups (coal-fired electric utilities, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities and glass manufacturing facilities) and is considering the addition of lime manufacturing facilities to the NSR/PSD priority.   

Resource Conservation and Recovery Act (RCRA) Enforcement.  EPA is proposing a comprehensive national RCRA corrective action enforcement strategy that will establish consistent RCRA corrective action enforcement program principles, priorities and practices.  The strategy would provide greater public transparency of cleanup activities, development of guidelines for conducting targeted file reviews to evaluate compliance status, inspection or oversight plans for facilities that have not been inspected for several years, tracking tools to review compliance with order/permit schedules, and model orders and voluntary agreements.

Resource Conservation and Recovery Act (RCRA) Financial Assurance.  Financial assurance has been a national enforcement priority since 2006, covering both RCRA corrective action and RCRA closure/post-closure obligations.  EPA is proposing to extend the financial assurance priority for RCRA corrective action into fiscal years 2011-2013.  Under this proposal, financial assurance for site closure/post-closure under RCRA would no longer be a national enforcement priority and would transition back to EPA’s core enforcement program.

Resource Extraction.  EPA is proposing a combination of activities to increase focus on resource extraction activities: compliance assistance to help companies to understand their responsibilities for both energy and environmental needs; increased monitoring at wastewater treatment plants, resource extraction sites, and sensitive ecosystems to obtain data and to evaluate conditions; and targeted enforcement at facilities coupled with an enhanced deterrence effect.

Pesticides at Day Care Facilities.  A joint study between EPA and the U.S. Department of Housing and Urban Development revealed that a large variety of pesticides (both general and restricted use) are being used in day care facilities nationwide.  EPA is proposing a uniform approach to detecting pesticide labeling and use violations to send a strong enforcement message to day care facility owners and operators and commercial pesticides applicators.  EPA also proposes to engage in capacity building for the states to enable them to develop outreach materials, target for, and inspect these facilities.

Surface Impoundments.  EPA is proposing increased scrutiny of an estimated 18,000 surface impoundments operating nationwide.  According to an EPA study, 90% of industrial surface impoundments are not correctly reporting all chemicals of concern.  The proposed enforcement strategy would focus on chemical, petroleum, and paper product manufacturing.

Wetlands.  EPA is proposing to address the perceived pattern of noncompliance with Clean Water Act section 404 permit violations and unpermitted discharge to wetlands, especially in coastal watersheds.

Worker Protection Standards (WPS) for Agricultural Pesticides.  EPA is proposing to address WPS violations through targeted product use and compliance inspections and “aggressive pursuit” of violators (using a combination of enforcement and media announcements).

Background documents for these priority areas may be found on EPA’s website.

EPA is seeking comment on the above list of candidate enforcement priorities.  EPA also invites proposals for additional priority areas for consideration.   

A complete copy of the EPA notice is available here.  For more information, please contact Steve Herman at (202) 789-6060, sherman@bdlaw.com, David Friedland at (202) 789-6047, dfriedland@bdlaw.com, or Lauren Hopkins at (202) 789-6081, lhopkins@bdlaw.com

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