“Out with the old, in with the new” seems to be the 2016 mantra of the Environmental Protection Agency (EPA). The agency’s fall 2015 release of new proposed National Enforcement Initiatives (NEI), coupled with its memorandum calling for the incorporation of Next Generation Compliance (Next Gen) into enforcement settlements, indicates sweeping changes are ahead for the companies it’s tasked with regulating.
According to the NEI for 2017-2019, the EPA is moving its air enforcement focus from new source review (NSR) permitting of large sources (e.g., coal-fired utilities, cement plants, glass plans and acid plants) to reducing air toxic emissions — and CO2, methane and other greenhouse gases (GHGs) — per President Obama’s Climate Action Plan. The EPA will first target flares, storage tanks, hazardous waste and vehicles, which will most immediately impact those operating in the oil & gas, petrochemical and automotive industries.
Alongside these new enforcement targets, the EPA is increasing pressure on companies to implement Next Gen compliance tools to either achieve compliance or, more to the point, to retroactively address noncompliance. In its January 2015 memorandum, the EPA Office of Enforcement and Compliance Assurance directs its employees to include Next Gen tools in all appropriate civil enforcement settlements. As such, any organization involved in noncompliance settlement cases will likely be compelled to implement one or more of the following tools outlined in the memorandum as part of the EPA’s proposed settlement:
- Advanced monitoring, including both point source emission/discharge monitoring and ambient monitoring (e.g., fence-line monitoring of air pollution at the border of a facility),
- Independent third party verification of a settling party’s compliance with settlement obligations,
- Electronic reporting, and
- Public accountability through increased transparency of compliance data.
Although the proposed NEI will not become official until 2017, recent enforcement settlements indicate the EPA has already begun focusing on the new enforcement targets and including Next Gen tools as part of those settlement agreements, as evidenced by the EPA’s Next Generation Enforcement Settlement Highlights document.
At EDGE, our Air Quality Management Practice is well-versed in the new NEI enforcement targets. We can assist proactive companies across all affected industries plan and prepare for Next Gen compliance, or assist companies found in non-compliance in responding to enforcement actions and implementing Next Gen tools.