The EPA recently solicited public comments and recommendations regarding its National Enforcement Initiatives (NEI) for fiscal years 2017-2019. The NEI are selected by the EPA every three years and are designed to focus federal enforcement resources on the most important areas of environmental non-compliance. The current NEI for fiscal years 2014–2016 are:

1. Reducing air pollution from the largest sources.
2. Cutting toxic air pollution.
3. Assuring energy extraction and production activities comply with environmental laws.
4. Reducing pollution from mineral processing operations.
5. Keeping raw sewage and contaminated stormwater out of our nation’s waters.
6. Preventing animal waste from contaminating surface and ground water.

The EPA has the option to continue with any or all of the above NEI into the fiscal year 2017-2019 cycle or, alternatively, return any or all of them to the standard enforcement program. In addition to evaluating whether the current NEI should be continued or expanded, the EPA is also considering adding three other initiatives to the NEI list. These new initiatives include:

1. Protecting communities from exposure to toxic air emissions.
2. Keeping industrial pollutants out of the nation’s waters.
3. Reducing the risks and impacts of industrial accidents and releases.  

Protecting communities from exposure to toxic air emissions.

Under this potential NEI, the EPA would focus its air pollution reduction efforts on organic liquid storage tanks and/or air emissions from the handling of hazardous wastes. The EPA believes that “large storage tanks can be significant sources of excess air emissions at many sites, including terminals, refineries, and chemical plants.” Problems with large storage tanks include inadequate maintenance, design flaws and expansion of production volumes without corresponding increases in emissions control. Of particular concern to the EPA are tanks located in ozone nonattainment areas and underserved/economically depressed communities. With regard to hazardous waste air emissions, the EPA has observed violations involving “the improper use of monitoring and control devices by facilities, resulting in releases of emissions from RCRA regulated units.” The EPA is particularly concerned about toxic air emissions resulting from the handling of hazardous waste at treatment, storage and disposal facilities and large quantity generators that fail to properly control hazardous waste air releases.

Keeping industrial pollutants out of the nation’s waters.

The EPA’s 2014-2016 NEI included a focus on keeping raw sewage and contaminated stormwater out of U.S. waters. For the 2017-2019 NEI, the EPA may instead focus on emissions to U.S. waters (and sediments) from mining, chemical manufacturing, food processing and primary metals manufacturing companies. The EPA views emissions from these particular business categories as posing a heightened threat to U.S. waters.

Reducing the risks and impacts of industrial accidents and releases.

The EPA is also considering focusing on the “[t]housands of facilities across the country [that] produce, process, store, and use extremely hazardous substances that are acutely toxic or can cause serious accidents.” These types of facilities include municipal water treatment plants and large refineries. The EPA considers approximately 2,000 facilities nationwide as “high-risk” due to their proximity to densely populated areas, the amount of extremely hazardous substances they use, or their history of significant accidents. The EPA would particularly focus on the “[f]ailure to adequately train personnel, maintain equipment, conduct routine inspections, or take other common sense precautions.”

Next Generation Compliance

Regardless of which initiatives the EPA ultimately chooses, the EPA aims to enforce the chosen initiatives using Next Generation Compliance tools, which focus on using “the most current monitoring technologies, data analytics and transparency, as well as the latest thinking on what drives better compliance.” Indeed, the EPA already appears to be using Next Generation Compliance tools in observing excess toxic air emissions from storage tanks, such as “optical remote sensing techniques,” including “differential absorption light detection and ranging technology and optical gas imaging cameras.” The EPA’s Next Generation Compliance tools are part of a broader trend whereby environmental monitoring devices become cheaper, faster and smaller (i.e., more portable). The regulated community may soon face (if it is not already facing) the prospect of remote environmental monitoring from regulators, competitors and the general public. Examples of remote monitoring capabilities can be viewed in YouTube videos.

The NEI provide important guidance for the regulated community regarding areas of potentially heightened enforcement. Read more about the EPA’s National Enforcement Initiatives at the EPA’s website.