As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start.
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In a surprising turn of events, the Board of the Bay Area Air Quality Management District (BAAQMD) voted to delay adoption of first-of-its-kind caps on refinery greenhouse gas (GHG) emissions. As we reported just three weeks ago, the Board was slated to adopt Regulation 12, Rule 16: Petroleum Refining Facility-Wide Emissions Limits (Rule 12-16), a regulation that would establish refinery-specific, facility-wide caps on GHG emissions from the five Bay Area refineries and three support facilities.  At a public hearing last week, in what initially looked to be a sure thing, the Board pivoted.  Signaling unease about legal vulnerabilities surrounding procedure, the Board voted to delay adoption of the regulation until at least September 2017.

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Just before President Trump announced his decision to withdraw from the Paris Agreement on Climate Change, California is moving ahead with new greenhouse gas (GHG) regulations, making good on its commitment to continue its path regardless of what goes on in Washington, DC. This week, the Board of the Bay Area Air Quality Management District (BAAQMD) held a special meeting to consider a controversial new regulation targeting oil refineries. If adopted, as planned at the June 21, 2017, Board public hearing, Regulation 12, Rule 16: Petroleum Refining Facility-Wide Emissions Limits (Rule 12-16) would establish first-of-its-kind, refinery-specific, facility-wide caps on emissions of greenhouse gases (GHG). The proposed caps limit refinery emissions to seven percent above recent operating levels.
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Just before Christmas, the U.S. Environmental Protection Agency (EPA) released controversial regulations, titled Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act; Prepublication Final Rule, that EPA states will “modernize” the Clean Air Act Section 112(r)(7) Risk Management Program (RMP) regulations. These 1990s-era regulations, covering about 12,500 facilities across the country, require that facilities storing certain amounts of specified chemicals develop risk management plans to prevent the accidental release of those substances into the air and mitigate impacts of accidental releases that do occur. EPA initiated these RMP rule revisions under the directive of President Obama’s August 1, 2013, Executive Order (EO) 13650, Improving Chemical Facility Safety and Security. After proposal on March 14, 2016, EPA received more than 44,000 comments, making rule issuance in just over six months’ time remarkable, especially given that the final rule and response to comments total about 600 pages.


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