Publications

Overview

Each year the United States Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) issues guidance in which it explains how EPA should work with state and tribal governments to enforce federal environmental laws for the upcoming year. This spring OECA issued its fiscal year (FY) 2013 National Program Managers Guidance (NPM Guidance), which it will begin to implement when EPA's FY 2013 starts on October 1, 2012. OECA issued the final NPM Guidance document after receiving and considering public comments on its February 2012 draft guidance.

OECA's primary goals for FY 2013 are to use civil and criminal enforcement authority to target the most serious water, air and chemical hazards, including the 2011-2013 National Enforcement Initiatives described below. An important theme in the NPM Guidance is how OECA plans to meet the challenge of maintaining or increasing its investment in the top enforcement initiatives during the current "lean budget times." In this respect, OECA plans to ensure that it focuses available funds on compliance and enforcement initiatives that address the highest-priority pollution issues and those activities that provide the greatest benefit to the public.

Throughout the NPM Guidance, OECA also emphasizes its goals of:

• Promoting environmental justice by protecting areas that are disproportionately impacted by pollution.
• Increasing transparency and efficient dissemination of information by using EPA's Electronic Reporting Tool.
• Resetting OECA's relationship with states through shared accountability and strengthened oversight.

Implementing National Enforcement Initiatives and Other Important Programs

OECA sets its National Enforcement Initiatives based on significant environmental risks and noncompliance patterns on a national level. The FY 2013 NPM Guidance describes how OECA will implement its six top National Enforcement Initiatives for 2011-2013:

• Keep raw sewage and contaminated storm water discharges out of U.S. waters.
• Cut animal waste to protect surface and ground waters.
• Reduce widespread air pollution from the largest sources, especially the coal-fired utility, cement, glass, and acid sectors.
• Cut toxic air pollution that affects communities' health.
• Assure energy extraction sector compliance with environmental laws.
• Reduce pollution from mineral processing operations.

In addition to the National Enforcement Initiatives, OECA and the Regions will focus their enforcement efforts on several primary programs.

EPCRA

• Each Region should inspect or send information request letters to 20 potential non-reporters (previous filers that may be missing years). Regions will also focus on facilities that have never reported but may have been required to do so.
• Regions will add EPCRA questions to information requests under separate air, water and RCRA information requests.
• Each Region must conduct at least four EPCRA Section 313 data quality inspections.

Clean Air Act

• Execute a National Implementation Strategy for compliance with the Greenhouse Gas Reporting Rule and ensure compliance with New Source Review for significant GHG emissions increases.
• Perform 112(r) inspections, including for high priority facilities.
• Focus on non-filers of Risk Management Plans.
• Ensure Title V operating permits are consistent with national guidelines, and do not allow Title V permits to shield against enforcement of pending actions or investigations.

RCRA

• Each Region must inspect at least two treatment, storage and disposal facilities (TSDF), six large-quantity generators (LQG), and one corrective action financial assurance instrument in each state.
• Target enforcement on corrective action facilities that have not made meaningful progress.
• Focus on emerging RCRA issues such as surface impoundments, corrective action, centralized waste treatment facilities and hazardous waste recycling facilities.

TSCA

• Direct 90 to 95 percent of each Region's TSCA resources to the lead-based paint program.
• Use the remaining 5 to 10 percent of TSCA resources for the New and Existing Chemicals Program and the new Formaldehyde Rule.
• Continue to focus on addressing nationally significant PCB civil and criminal violations.

Changes From FY 2012 NPM Guidance

The FY 2013 NPM Guidance contains some notable changes from the FY 2012 guidance. Two changes not directly related to environmental statutes or programs are:

• Next generation compliance. EPA is promoting increased electronic monitoring and reporting. To further this goal, OECA encourages its Regional offices to require that performance testing reports under future consent decrees be submitted through EPA's Electronic Reporting Tool when feasible.
• Budgetary constraints. In light of what it describes as a "lean budget" for FY 2013, EPA reports that it must reduce spending in certain areas while continuing to concentrate on the most important environmental violations and the areas that provide the greatest benefit to the public. EPA plans to reduce its investment in compliance assistance by focusing on delivering guides and materials through the internet and through two-way communication made possible by new electronic reporting technologies.

The NPM Guidance also provides that EPA plans to reduce its investment in the Self-Disclosure Audit Policy, which encourages regulated entities to self-report violations to the EPA to receive penalty mitigation or immunity if certain conditions are met. The NPM Guidance states that EPA believes it can reduce its investment in this program without undermining the incentives for entities to perform internal compliance reviews to find and correct violations. The NPM Guidance suggests EPA is considering alternatives such as a "self-implementing" audit program. At this time EPA has not indicated how this self-implementing program would be maintained or what steps it may take to reduce investment in the Audit Program while continuing the program and the incentives it provides. The NPM Guidance indicates that EPA is rethinking whether or to what extent it wants to reward self-reporting companies with penalty mitigation or immunity, a program that is widely used by proactive companies to detect and correct violations.

OECA notes that the final NPM Guidance was issued before it completed discussions on the content and schedule for budget changes. It concludes that some adjustments contained in the NPM Guidance may be revised in the future. These budget issues should be monitored as EPA and OECA reveal more specific plans for FY 2013.

For further details, see the NPM Guidance on the EPA website.

For More Information

Please contact Andrew L. Kolesar or any member of our Environmental practice group for more information.

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