The U.S. Environmental Protection Agency (EPA) is accepting comment through March 11, 2019, on its proposed “National Compliance Initiatives” for fiscal years (FY) 2020-2023.
National Compliance Initiatives were known as National Enforcement Initiatives until August 2018, when the EPA issued a memo announcing its intent to change the name to better convey the message that compliance is the goal (and enforcement actions are not the only tool to achieve this goal). The EPA stated it would transition to NCIs by (1) modifying selection criteria for the FY 2020-2023 NCI cycle to better align with Agency Strategic Plan measures and priorities; (2) engaging more fully with states and tribes in the selection and development of the initiatives; (3) enhancing the EPA’s use of the full range of compliance assurance tools in an NCI; and (4) extending the priorities cycle to four years to better align with the Agency’s National Program Guide cycle.
Some of the key Strategic Plan measures and priorities related to the NCIs are:
• SM- I: Reduce the number of nonattainment areas.
• SM-2: Reduce the number of community water systems out of compliance with health-based standards [drinking water].
• SM-4: Reduce the number of square miles of watershed with surface water not meeting standards [impaired waters].
• SM-17: Reduce the average time from violation identification to correction.
• SM-18: Increase the environmental law compliance rate.
• Strategic Plan: “With our partners, we will pay particular attention to vulnerable populations.” (p. 7)
These help inform the direction that EPA is proposing to take with the FY 2020-2023 NCIs, and the EPA also notes that it “intends to focus on environmental and public health risks, not specific industry sectors” as had been done under prior administrations.
The current NCIs are:
• Cutting Hazardous Air Pollutants (HAPs)
• Reducing Toxic Air Emissions from Hazardous Waste Facilities
• Reducing Risks of Accidental Releases at Industrial and Chemical Facilities
• Keeping Industrial Pollutants Out of the Nation’s Waters
• Ensuring Energy Extraction Activities Comply with Environmental Laws
• Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters
• Reducing Air Pollution from the Largest Sources
The EPA is seeking comment on whether to:
• Extend “Cutting Hazardous Air Pollutants (HAPs),” “Reducing Toxic Air Emissions from Hazardous Waste Facilities,” and “Reducing Risks of Accidental Releases at Industrial and Chemical Facilities”
• Transition “Keeping Industrial Pollutants Out of the Nation’s Waters” to “National Pollutant Discharge Elimination System (NPDES) Significant Non-Compliance (SNC) Reduction”
• Transition “Ensuring Energy Extraction Activities Comply with Environmental Laws” from a natural gas extraction sector focus to focus on significant sources of VOCs that have a substantial impact on air quality (without regard to sector), and that may adversely affect vulnerable populations or an area’s CAA attainment status or merge it into “Cutting Hazardous Air Pollutants”
• Move “Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters” and “Reducing Air Pollution from the Largest Sources” back to EPA’s standard core enforcement program
• Create new NCIs “Increase Compliance with Drinking Water Standards” and “Reduce Children’s Exposure to Lead”
If you have any questions about how these proposed NCIs may impact your industry or business, please reach out to Phillip Bower, Partner in Husch Blackwell’s Madison, Wisconsin, office for advice regarding complex environmental regulations.