On January 12, 2023, the US Environmental Protection Agency (“EPA”) published its proposed National Enforcement and Compliance Initiatives (“NECIs”), soliciting public comment on the Agency’s potential Initiatives for fiscal years 2024 through 2027. These NECIs will guide EPA’s Office of Enforcement and Compliance Assurance (“OECA”) in its enforcement efforts over the next four years by focusing resources on “serious and widespread environmental problems where federal enforcement can make a difference.” Unsurprisingly, the identified NECIs build off EPA’s FY2022 Enforcement Results (on which we recently reported) and reflect OECA’s overarching goal: “to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”
Though unique in some respects, the response to a COVID-19 incident parallels the response to other incidents. Every incident, be it a fire, injury, or a government inspection and issuance of a citation involves four key elements of response: (1) the immediate response; (2) the extended response; (3) compliance and prevention; and (4) preparedness/lessons learned to improve. These response elements apply equally to a COVID-19 incident. …
Continue Reading Tips For Minimizing Liability When Responding to a COVID-19 Incident
Last week, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement report detailing the results of the past year’s civil and criminal enforcement and compliance efforts. The report covers the 2020 fiscal year, which ran from October 1, 2019, through September 30, 2020, and thus provides some key insight into the effect of the COVID-19 pandemic on environmental enforcement.
Continue Reading EPA’s FY2020 Annual Enforcement Results Are In
Over the last decade, phase one of the Clean Air Act’s regional haze program cost companies (primarily electric generating companies) hundreds of millions of dollars in compliance costs and caused the early closure of a number of facilities. The program is just now entering the initial stages of its second planning period, with major implementation activities expected over the next few years. Unsuspecting companies are finding themselves the targets of the program’s requirements for the first time. In states that have taken early action—Arizona, New Mexico, North Dakota, Oregon and Washington—there has been a shift in attention from older power plants to oil and gas operations and manufacturing facilities in the pulp and paper, cement, and minerals sectors, among others. Even companies that have been through this regulatory process before are facing difficult new questions due to major rule changes enacted in 2017, changes to guidance and key technical documents, and a new focus on statutory provisions addressing “reasonable progress” that were not often used in the past. Hunton Andrews Kurth LLP partner Aaron Flynn has assisted numerous clients in dealing with regional haze issues. In this video, partner Allison Wood interviews Aaron regarding the recent developments in the regional haze program and regarding how companies can best position themselves as states and EPA decide on the next round of emission control requirements.
Continue Reading VIDEO Inside Look: Regional Haze
The US Environmental Protection Agency has continued to pursue an enforcement agenda against many of the same businesses believed to benefit the most from the Administration’s policies. Notably, this includes midstream oil and gas sources, as recently evidenced by EPA’s September 2019 Enforcement Alert titled, “EPA Observed Air Emissions from Natural Gas Gathering Operations in Violation of the Clean Air Act.”…
Continue Reading Don’t Be a Pig: EPA Focuses Enforcement Alert Against Mid-Stream Gas Gathering Operations
EPA’s National Compliance Initiatives for fiscal years 2020 through 2023, recently released, replace the former National Enforcement Initiatives and aim to help regulated entities understand their compliance obligations. Additionally, the Agency plans to focus on returning to compliance through information actions, building state capacity, supporting state actions, bringing Federal civil administrative actions and bringing civil or criminal judicial enforcement actions.
Continue Reading EPA Sets New Enforcement Priorities
In recent years there has been an explosion in the availability of small, low cost, hand held (or drone mounted) air quality monitoring devices or air sensors. Although the most likely near term applications may be community groups seeking information on potential industrial impacts, even individual consumers may have use for such devices to monitor the quality of indoor air. The biggest hurdle to the effectiveness, and eventual integration into the realm of regulatory compliance, of these devices is the lack accepted standards for evaluating the quality of the data they produce. What role will EPA play in that?
Continue Reading Making Sense of “Air Sensors”
Recently, the Trump administration’s Assistant Administrator for Enforcement, Susan Parker Bodine, clarified the role of EPA’s Next Generation Compliance initiative in civil enforcement settlements by announcing that (contrary to the prior administration’s suggestion) there is “no default expectation” that “innovative enforcement” provisions will routinely be sought as injunctive relief in civil settlements. Does this suggest a broader reassessment of the “Next Gen” program by EPA?
Continue Reading Revisiting “Next Generation Compliance”
We are taught from a young age that two plus two equals four; it is a given just as the earth is round, despite recent controversy. But two plus two may not equal four due to two concepts: significant figures and rounding. But why should you care about either of those two concepts? If you are subject to permit limits or standards those concepts can be the difference between compliance and noncompliance.
Continue Reading Two Plus Two Does Not Always Equal Four
It is no secret that California has had appliance efficiency standards in place for some time now. And it is no secret that the California Energy Commission (“CEC”) has been responsible for crafting those standards. According to the CEC and the California State Legislature, however, compliance with those standards has been hit-or-miss. In 2011, the Legislature found that “significant quantities of appliances are sold and offered for sale in California that do not meet the state’s energy efficiency standards,” and the CEC itself has stated that nearly half of all regulated appliances are non-compliant, and that certain product categories are entirely non-compliant. The broad range of products covered by the CEC’s efficiency standards may be partly to blame for the lack of compliance, as manufacturers may not even realize their product must comply. For example, the efficiency standards encompass nearly every device with a rechargeable battery and that rechargeable battery system, meaning everything from cell phones to laptops to tablets to golf carts must be tested, certified and listed in the CEC’s database before being offered for sale in California.
Continue Reading California’s Appliance Efficiency Standards and Cost of Non-Compliance