In our September 7, 2023 blog, we briefly discussed the Environmental Protection Agency’s (EPA) National Enforcement and Compliance Initiatives (NECI). These initiatives were selected to advance all goals of EPA’s Strategic Plan. An August memo provides additional insight into the NECI guiding principles.
Compliance Initiatives Three Goals
According to an August 17, 2023 memo by David Uhlmann, Chief of the EPA Office of Enforcement and Compliance Assurance (OECA), the NECIs were developed with a “particular focus on three cross-cutting goals: Goal 1: Tackle the Climate Crisis; Goal 2: Take Decisive Action to Advance Environmental Justice; and Goal 3: Enforce Environmental Laws and Ensure Compliance.”
Unprecedented Criminal and Civil Enforcement
Of particular interest was the focus on Goal 3 – Enforce Environmental Laws and Ensure Compliance. To meet this Goal, “OECA will strategically deploy its criminal and civil enforcement resources in each initiative, in ways that OECA has not done before, to hold polluters accountable, reduce noncompliance with the environmental laws, and protect communities from environmental harm” (emphasis added).
This memo also included language that continues the focus on climate, PFAS, and environmental justice. “As the current initiative cycle draws to a close, during another summer of record heat, deadly wildfires, and catastrophic flooding, the United States faces new environmental challenges that demand an enforcement response: the existential threat of climate change, the scourge of PFAS contamination, and the reality that, for too long, the worst effects of pollution have plagued overburdened communities.”
Proposed Air Emissions Reporting Requirement
In other regulatory developments, on July 25, 2023, the EPA announced proposed updates to the Air Emissions Reporting Requirement (AERR) to “improve EPA’s collection of certain emissions data critical for performing air quality and risk analyses, among other regulatory and non-regulatory activities.” This would allow the EPA to annually collect (starting in 2027), hazardous air pollutant (HAP) emissions data for point sources (under the Clean Air Act) in addition to continuing the criteria air pollutant and precursor (CAP) collection in place under the existing AERR. The proposed amendments would “ensure that EPA has sufficient information to identify and solve air quality and exposure problems and ensure that communities have the data needed to understand significant environmental risks that may be impacting them” (Source: USEPA).
According to a blog by Vorys, “The proposed revisions would require facilities that meet the AERR-specific definition of a ‘point source’ to annually report their actual HAP (Hazardous Air Pollutant) emissions to USEPA using the Combined Air Emissions Reporting System (CAERS).”
Expanding the Definition of “Point Source”
The revised AERR would also expand the definition of a point source. Under the revised AERR, a facility would be a point source if the facility is (1) a major source for purposes of Clean Air Act operating permits; or (2) a non-major source that belongs to certain industrial sectors, and it emits certain HAPs at or above proposed reporting thresholds. USEPA estimates the revised point source definition would apply to 129,500 facilities (Source: Vorys).
PFAS as HAPs?
Although per- and polyfluoroalky substances (PFAS) are not currently listed as HAPs, the EPA is also considering whether to impose PFAS emissions reporting requirements through the revised AERR.
EPA Plans to Grow
As the planned regulatory activity is anticipated to pick up, the EPA is hoping to add to their staff. As reported by the Federal News Network, “The White House proposed a $12 billion budget for EPA for fiscal 2024. If enacted, the funding would be a 19% increase over the agency’s budget for fiscal 2023, and the largest budget ever for the agency.”
As we and others have pointed out in the past, the pace of new environmental regulatory development under the Biden administration is significant. In our June 30, 2023 blog, we included information about the intent of this Administration to pick up the pace of regulations.
With the growing environmental regulations and the EPA’s commitment to civil and criminal enforcement, environmental compliance will be increasingly important for the regulated community.
American Chemistry Council – “Massive Restrictions” on Members
This pace of environmental regulatory development has not gone unnoticed. Chris Jahn, President & CEO of the American Chemistry Council wrote, “A massive rise in restrictions targeting the U.S. chemical industry is stifling American innovation and hampering our industry’s ability to create products that are important to national priorities, including the manufacture of semiconductors in the U.S. President Biden talks on the one hand about reshoring U.S. manufacturing; on the other hand, his federal agencies are taking actions that will stop that from happening. This regulatory overload threatens to offshore jobs, production, and supply chains by weakening the ability of the United States to compete with international rivals – such as China. Unless the Biden Administration and Congress take a different approach to how they create and apply regulations, critical chemistries will suffer—and the important products chemistry supports will suffer as well.”
Preparing For Environmental Inspections
With this apparent aggressive position by the EPA, it may be wise to prepare for regulatory inspections as the EPA has an eye toward robust enforcement efforts.
Conventional wisdom suggests that when approaching an election year, enforcement activity might be more muted. However, it does not appear that conventional wisdom applies under this administration.
In fact, with this apparent aggressive position by the EPA, it may be wise to consult with your legal and technical advisors to prepare for regulatory inspections. Also, see our document, “Seven Steps to Prepare for an Environmental Regulatory Inspection” and our monthly environmental compliance tips for some insight.
For more information or assistance with an environmental issue, contact Jeffrey Bolin, M.S. at 248-932-0228, Ext. 125.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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