U.S. EPA’s New List of Enforcement Priorities

Introduction

Every four years, the U.S. Environmental Protection Agency (U.S. EPA) Office of Enforcement and Compliance Assurance (OECA) creates a list of National Enforcement and Compliance Initiatives (NECI). These NECIs are a list of items the OECA intends to focus on in terms of environmental enforcement and compliance. Per U.S. EPA, they selected the NECIs based on the following items.

• The need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and disadvantaged communities,
• A focus on areas where federal enforcement authorities, resources, and/or expertise are needed to hold polluters accountable and promote a level playing field, and
• Alignment with EPA’s Strategic Plan.

Prioritized Items

Based on the three criteria above, U.S. EPA selected the following 2024-2027 NECIs that were published on August 17, 2023. All the initiatives incorporate environmental justice considerations.

• Mitigating Climate Change (new)
  • U.S. EPA has identified this as its top priority and intends to focus on methane emissions from oil and gas facilities, methane emissions from landfills, and refrigerants.
• Addressing Exposure to Per- and Polyfluoroalkyl Substances (PFAS) (new)
  • The key goals of this NECI is to characterize releases, control ongoing releases that post a threat to human health and the environment, ensure compliance with permits and other agreements that prevent and address PFAS contamination, and address endangerment issues as they arise. Activities under this NECI will expand as PFAS regulations are finalized.
• Protecting Communities from Coal Ash Contamination (new)
  • U.S. EPA believes there is widespread noncompliance with coal combustion residuals (CCR) requirements.
• Reducing Air Toxics in Overburdened Communities (modified)
  • U.S. EPA has modified this priority to focus on overburdened communities facing high levels of toxic air pollution.
• Increasing Compliance with Drinking Water Standards (continued)
  • U.S. EPA will continue to prioritize this initiative in conjunction with the Safe Drinking Water Act.
• Chemical Accident Risk Reduction (continued)
  • U.S. EPA will continue to prioritize this initiative, specifically focusing on anhydrous ammonia for the frequency of spills and hydrogen fluoride for the potential catastrophic nature of the chemical.

What does this mean?

Facilities that operate in the realm of these initiatives can expect to see increased attention from the U.S. EPA. This increased attention on your facility could result in the need for additional resources such as labor and funding to ensure compliance obligations are met. U.S. EPA has stated that it recognizes it cannot thoroughly regulate every issue, but by selecting a subset to focus on, it allows bolstered criminal and civil enforcement to exist in the most problematic environmental areas and best services the public. Is your industry one of those sectors that will receive more attention?

As seen in prior years, it can be expected that agency funding limitations and public/private pushback will undermine some of these enforcement efforts, but the two initiatives that seem to have the most traction are the initiatives focusing on overburdened communities and PFAS contamination. In regard to the emphasis on overburdened communities, in response to President Biden’s direction that agencies must make achieving environmental justice (EJ) part of their missions, U.S. EPA has taken actions such as the creation of the Office of Environmental Justice and External Civil. Regarding PFAS, action has already been taken per the PFAS Strategic Roadmap such as the Proposed PFAS National Primary Drinking Water Regulation that would regulate maximum contaminant levels for six major PFAS. It is expected U.S. EPA will continue to try to focus on all their NECIs, but these two items in particular appear to have the most substance to them. It is also of potential concern that U.S. EPA believes there is widespread noncompliance with coal ash regulations.

What can I do?

There is no time like the present to try to get ahead of these initiatives and the possibility of more scrutiny. To stay ahead of the curve on the current initiative focusing on overburdened communities it would be beneficial for facilities to determine if an EJ community is nearby using the EJSCREEN tool and to identify potential concerns the community may have about the facility. Facilities may want to perform a review of their air toxics regulatory compliance procedures and get a better handle on their air toxics emissions, especially from fugitive sources that may not be well characterized. With respect to the PFAS initiative, creation of a chemical inventory is recommended, and water sampling can be conducted to identify potential sources of PFAS within a facility and help eliminate a PFAS source before potential regulations apply.

If you think your facility could be impacted by these initiatives, please feel free to reach out to Evan Mia at emia@all4inc.com for any questions or needs regarding compliance strategies and plans.