Regulatory Developments

EPA Pivots From National Enforcement Initiatives To National Compliance Initiatives

August 22, 2018

On August 21, 2018, Susan Bodine, Assistant Administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA), issued a memorandum to EPA Regional Administrators ordering a shift in OECA’s activities from enforcement to compliance.  This column reports on this important shift in Agency focus.

Background

For over two decades, EPA has strategically focused its enforcement and compliance resources on priorities it deems the most pressing.  The result of this effort is a listing of top priorities referred to as National Enforcement Initiatives (NEI).  EPA has historically reviewed these NEIs every three years to ensure they continue to reflect the most pressing environmental priorities.
 
This year, EPA’s new top enforcer, Assistant Administrator Bodine, took it a step further and elected to recast the NEIs priority setting process in a more fundamental way.  According to Ms. Bodine, “[r]ecognizing the need to focus resources to achieve environmental law compliance … EPA intends to evolve National Enforcement Initiatives [NEIs] into a National Compliance Initiatives (NCIs) program by providing states and tribes with additional opportunities for meaningful engagement, by developing and applying a broader set of compliance assurance tools, and by aligning the NCIs with the Agency Strategic Plan measures and priorities.”  OECA’s goal is to increase compliance as “enforcement actions are not the only tool for achieving this goal.”
 
Ms. Bodine states that in the transition to NCIs, EPA will make four adjustments.  First, EPA is modifying its selection criteria for the Fiscal Year (FY) 2020-2023 NCI cycle to align better with EPA’s Strategic Plan measures and priorities.  In selecting the NCIs for the FY 2020-2023 cycle, EPA plans to consider four key factors.
 
First, OECA intends to align priorities more closely with the Agency’s Strategic Plan measures and priorities to address:  nonattainment areas, impaired waters, public health threats posed by drinking water noncompliance, populations vulnerable to air toxics or chemical accidents, and children’s exposure to lead.  OECA will emphasize selecting new NCIs that advance our progress in meeting our Strategic Plan measures and priorities.  EPA will also assess the need for EPA expertise, authority, or resources.  States or EPA may determine that the EPA's expertise, authority, or resources are needed to improve compliance.  Examples may include:  remedying violations where states lack the authority or the expertise; sharing technologies; providing national compliance assistance tools; or, creating data analytic tools to identify serious environmental problems or disproportionate adverse impacts to public health.  Finally, EPA will assess the need to address serious and widespread non-compliance across the country.  While a noncompliance problem may not be present in every EPA region or state, it may be sufficiently common that a national focus is necessary to remedy the non-compliance to maintain certainty for regulated entities through a level playing field and a consistent level of environmental and public health protection across our country.
 
Second, EPA will engage more fully with states and tribes in the selection and development of the initiative.  EPA intends to provide new opportunities for early and meaningful input from states and tribes at several key points in the process.  EPA notes that it looks forward to receiving state and tribal input on the current NEIs, including whether to continue, modify, or conclude them, and suggestions for new NCIs.  Opportunities for state and tribal engagement in the identification and development of the FY 2020-2023 NCIs will follow from the schedule included in the memorandum at Attachment 1.  In addition to obtaining input from states and tribes, EPA will continue its practice of seeking public comments through the publication of a Federal Register notice.
 
Third, EPA intends to enhance its use of the full range of compliance assurance tools.  EPA plans to develop an implementation strategy for each NCI.  The NCI implementation strategies will include options for remedying the most significant non-compliance problems and improving general compliance in the timeliest manner, and will identify the most appropriate tools for achieving the stated goals.  During strategy development, EPA will seek the views of states and tribes on which compliance assurance tools would be most effective for the implementation of each NCI.  Compliance assurance tools could range from general compliance assistance, to inspections, to informal and formal enforcement actions.
 
Finally, EPA will extend the priorities cycle to four years (from three) to align better with its National Program Guide cycle.  States and others have requested that EPA align the NEI cycle with the National Program Guidance cycle (formerly National Program Managers Guidance).  The National Program Guidance is revised every two years; in most cases, however, an NCI cannot be completed in a single two-year cycle.  OECA believes that the better approach would be to extend the NCI cycle from three to four years to facilitate this alignment.
 
The memorandum commits EPA to using the full range of compliance assurance tools.  EPA states, however, that “[e]nforcement actions will continue to be a critical tool for addressing serious violators and deterring violations.”
 
For FY 2019, EPA will evolve the existing NEIs into NCIs.  EPA’s priorities will be to create NCIs that:
  • Keep industrial pollutants out of the nation’s waters;
  • Prevent animal waste from contaminating surface and ground water;
  • Keep raw sewage and contaminated storm water out of our nation’s waters;
  • Reduce air pollution from the largest sources, focusing in FY 2019 on completing ongoing enforcement cases and monitoring compliance with existing enforcement settlements;
  • Reduce risks of accidental releases at industrial and chemical facilities, focusing on the most serious situations of non-compliance, addressing vulnerable populations first;
  • Cut hazardous air pollutants;
  • Ensure energy extraction activities comply with environmental laws; and
  • Reduce toxic air emissions from hazardous waste facilities.
Commentary

The private sector can be expected to celebrate EPA’s emphasis on compliance, with appropriate emphasis placed on enforcement.  Not everyone will be pleased, however.  The Trump Administration was called out by The New York Times late last year for what it stated was a significant drop in enforcement actions.  According to the Times, “it [the Times] built a database of civil cases filed at the E.P.A. during the Trump, Obama and Bush administrations.  During the first nine months under Mr. Pruitt’s leadership, the E.P.A. started about 1,900 cases, about one-third fewer than the number under President Barack Obama’s first E.P.A. director and about one-quarter fewer than under President George W. Bush’s over the same time period.  In addition, the agency sought civil penalties of about $50.4 million from polluters for cases initiated under Mr. Trump.  Adjusted for inflation, that is about 39 percent of what the Obama administration sought and about 70 percent of what the Bush administration sought over the same time period.”
 
Time will tell how the new focus will play out.  Everyone can be expected to agree that the most urgent enforcement efforts should be limited to matters that truly endanger human health and the environment.  Most of us in the private sector would prefer that EPA devote its limited resources to compliance efforts and education.  The vast majority of regulated entities try hard to follow the law and do the right thing and do not need the threat of litigation and stiff penalties as a deterrent.

 
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