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Jim Noles

Jim Noles

Posted: January 15, 2010 05:54 PM

The Shape of Enforcement to Come: EPA Releases Proposed Enforcement Priorities for Next Three Fiscal Years

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On January 4, the United States Environmental Protection Agency rang in the new year by releasing its proposed national enforcement priorities for Fiscal Years 2011 - 2013.

According to EPA, the new priorities are intended to "focus resources toward the most significant environmental problems and human health challenges identified by the EPA staff, states, tribes, and the public."

So what are EPA's fifteen proposed priorities for the next three years? What are those "most significant environmental problems and human health challenges?"

A handful of the priorities represent encore appearances from EPA's last three-year priority cycle. Specifically, EPA is proposing to continue to focus enforcement activities in the areas of air toxics (with specific emphasis on large emitters of hazardous air pollutants, particularly those that violate Leak Detection and Repair standards, illegal flare emissions, or which are located in the vicinity of schools); concentrated animal feeding operations (CAFO); and proper hazardous waste management at the nation's mineral processing (e.g., phosphate, copper, and gold) facilities.

In addition, enforcing Safe Drinking Water Act compliance on the nation's Indian reservations is proposed to remain a carry-over priority from the FY 2008-2010 cycle. Such a reiteration seems understandable; according to EPA, 55% of public water systems in Indian country either violated a health based standard for drinking water quality or had a significant monitoring and reporting violation under the SDWA. In comparison, 27% of all the systems in the United States had a violation of these types.

EPA is also proposing that its enforcement efforts will continue to focus on compliance with the New Source Review obligations of the Clean Air Act (apparently continuing enforcement initiatives that date back to the Clinton administration). Importantly for the lime manufacturing industry, its sector was specifically mentioned as a targeted sector in the new cycle.

The majority of the proposed priorities, however, reflect new foci. Two new proposed foci seek to spur clean-ups of hazardous waste sites and to ensure that entities which manage hazardous waste possess adequate financial assurance mechanisms.

Other proposed new areas of emphasis include enforcement activities targeted against the dumping of illegal marine debris; wet weather municipal infrastructure violations; unpermitted fill of wetlands; noncompliant surface impoundments used for storage of non-hazardous liquid and solid waste (e.g., wastewater treatment, storm water surge capacity, and catch basins for spills and process upsets); inadequate agricultural worker protection from pesticides; and violations of environmental laws in connection with energy resource extraction (notably natural gas facilities and mountain-top coal mining).

EPA is also proposing to treat pesticides at day care facilities as a new enforcement priority. As EPA readily admits, however, the agency "has not conducted sufficient inspections in this sector to identify a pattern of noncompliance." Rather, EPA's concerns arise from various episodes of anecdotal evidence.

Finally, EPA has proposed that environmental justice will be a new enforcement priority for the coming three-year cycle. Interestingly, EPA is suggesting a community-based approach to environmental justice enforcement. Specifically, the agency envisions each of its regions proposing a particular environmental justice community within its particular region for enhanced enforcement emphasis.

So just what do these new enforcement priorities mean? For the operator of a lime kiln, a CAFO, a coal mine, a day care facility, a real estate developer eyeing a swath of wetlands, or anyone else whose business has seemingly drifted into EPA's cross-hairs, the lesson seems clear: keep your house in order.

Meanwhile, members of the environmental community - particularly those who feel that their constituencies were underemphasized in the last enforcement cycle or under the last presidential administration, are no doubt taking heart at the shape of things to come. No doubt the trick will be for EPA to marry up the requisite resources with the relevant priorities, and vice versa.

EPA is taking comments on its proposed enforcement priorities through January 19, 2010. More information on these priorities is available at www.epa.gov/compliance/data/planning/priorities.index.html.