The Nickel Report

The US Environmental Protection Agency (EPA) recently released its latest National Compliance Initiatives (NCIs), which aim to focus the Agency’s enforcement arm, the Office of Enforcement and Compliance Assurance (OECA), on areas of significant environmental violations and other opportunities for the greatest environmental benefit through increased compliance with environmental laws. In a memorandum issued June 7, 2019, enforcement chief Susan Parker Bodine advised the Agency’s regional offices of the NCIs for upcoming fiscal years 2020 through 2023.

As we previously reported, EPA historically referred to its enforcement priorities as “National Enforcement Initiatives (NEIs)” but shifted to the NCI moniker last summer to coincide with the Agency’s focus on increased compliance assurance rather than purely enforcement actions. EPA published its proposed NCIs in the Federal Register in February, explaining the Agency’s intention to rely on a wide range of compliance assurance tools, including “helping regulated entities understand their compliance obligations, . . . return to compliance through information actions, building state capacity, supporting state actions, bringing Federal civil administrative actions and . . . civil or criminal judicial enforcement actions.”

EPA’s new NCIs will extend several of the existing priorities in place for fiscal years 2017 through 2019, modify others and end those that the Agency determined are no longer necessary or represent opportunities for significant improvement through enhanced enforcement scrutiny. In addition, EPA added two new NCIs to bring a new focus on violations of drinking water standards and children’s exposure to lead, the latter of which OECA will “be contributing to but not leading” within the Agency. The table below offers a comparison of EPA’s current NCIs with its new ones.

As the table demonstrates, EPA opted to continue several of the current NCIs as is, extending them through at least FY 2023. Among these continued priorities is one aimed at reducing toxic air emissions from hazardous waste facilities. Bodine’s memorandum notes that “violations associated with improper management of hazardous waste remains widespread,” and thus the sustained focus on increasing compliance rates in this arena will be beneficial. Another of the continued NCIs focuses on lowering the risk of accidental releases at industrial and chemical facilities. EPA’s proposal explains that these types of facilities carry risks that, if not managed properly, can lead to catastrophic accidents with tragic results. The Agency concluded that continued focus on improving compliance at these facilities is warranted because some facilities are not adequately managing those risks.

Other existing NCIs would also continue, albeit with modifications. For instance, the Agency is incorporating a current priority of keeping industrial pollutants out of the nation’s waters into a broader focus on reducing significant non-compliance with the requirements under the Clean Water Act National Pollutant Discharge Elimination System program, which regulates discharges of pollutants into such waters. EPA is likewise shelving previous, narrower priorities related to the Clean Air Act and instead implementing a more expansive priority dubbed “Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources.” This initiative encompasses EPA’s longstanding priority of reducing excess emissions of hazardous air pollutants, particularly in geographic areas with air quality not meeting certain standards, and its current focus on ensuring compliance with environmental laws by the natural gas extraction industry.

Two new NCIs for the coming years aim to increase compliance with applicable drinking water standards by community water systems and halt the use of aftermarket defeat devices for vehicles and engines. The NCI focused on compliance by community water systems, typically small drinking water suppliers and water treatment operations, is perhaps unsurprising given the increased national attention over the past several years on drinking water contamination in several major cities, such as in Flint, Michigan. The anti-defeat device priority, on the other hand, was not included in EPA’s proposed list of NCIs in February but was added in response to strong recommendations in the public comments on the proposal. Another new initiative EPA initially proposed and requested public comment on was a focus on reducing children’s exposure to lead contamination. Ultimately, however, the Agency determined not to institute an NCI led by the enforcement office for this concern but to instead participate in an Agency-wide effort to focus on this topic. According to EPA’s memorandum, the Lead Action Plan will work to reduce childhood lead exposure, in particular, through efforts including increasing compliance with lead-safe renovation requirements, mapping communities dealing with elevated lead exposures, conducting targeted geographic initiatives and leading public awareness campaigns on lead issues.

Finally, these latest NCIs return two current priorities to EPA’s regular, core enforcement program. Although not discussed in Bodine’s June 7 memorandum, the proposal indicated that Reducing Air Pollution from the Largest Sources, which has been in place in some iteration for more than 20 years, “no longer presents a significant opportunity to affect nonattainment areas or vulnerable populations nationwide” given the substantial reductions achieved through EPA and state efforts over the years. Likewise, with respect to Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters, EPA explained that, together with state partners, it has already “obtained significant improvement in compliance and major reductions in water pollution” with the vast majority of sewer and stormwater systems now currently in or on track toward compliance.

The existing FY2017-2019 NCIs remain in place to guide OECA’s enforcement decision-making through the end of this fiscal year, ending September 30. Therefore, companies whose operations are potentially impacted by the current NCIs should remain wary of heightened federal scrutiny. Even companies not clearly within the purview of the existing NCIs should nonetheless remain cognizant of them as EPA’s recent proposal explains, “for all initiatives, EPA intends to focus on environmental and public health risks, not specific industry sectors.” We will continue to monitor and report on EPA’s compliance and enforcement efforts as the new priorities begin to take effect.