The Nickel Report

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?

Initiated by EPA’s enforcement office in 2013, the “Next Gen” program’s stated goal is to improve the effectiveness of EPA’s compliance program by (1) writing more effective regulations and permits, (2) using advanced monitoring techniques, (3) requiring electronic reporting, (4) increasing the transparency of compliance data, and (5) using “innovative enforcement.” In 2015, then-Assistant Administrator for Enforcement, Cynthia Giles, issued a memorandum strongly suggesting that “innovative enforcement” calls for imposition of injunctive relief that pushes the envelope by imposing compliance-related activities and technologies not yet routinely used in a particular source category or regulatory program. Examples at that time included fence-line monitoring, requirements to provide compliance reports in electronic formats that facilitate use in databases and posting on public websites, and third party verification of compliance.

Bodine’s April 3 memorandum walks back the enforcement element of Next Gen compliance somewhat by emphasizing that decisions regarding the need for and appropriateness of such injunctive relief in civil settlements are very case-specific. Her directive is timely, given the ever increasing availability and popularity of a variety of new technologies, like hand held air emissions monitoring devices, that currently lack consistent standards for accuracy. Personal monitoring devices claiming to accurately measure air pollutants like fine particulate matter, total volatile organic compounds (VOC), and formaldehyde are available for less than $100 on the internet. These devices may very well have a significant role in compliance determinations and air quality research, but that landscape looks a bit like the wild, wild west right now. Those interested in learning more about these technologies, how they are being used, and some of the pluses and minuses might find interesting the following 2013 article by EPA staff: The Changing Paradigm of Air Pollution Monitoring, Environmental Science & Technology, Aug. 27, 2013.

Is Bodine’s memorandum indicative of a backing away from Next Gen compliance overall? It does not appear so. For one, the memorandum makes clear (albeit in a footnote) that the Compliance Office intends to continue to work with program offices to apply Next Gen concepts in rulemakings. So the message seems to be that generally applicable regulation is a more appropriate application of the Next Gen elements than singling out individual companies to bear the risks. Examples of such regulations are Clean Air Act rulemakings addressing new and modified sources in the “Oil and Natural Gas Sector,” and hazardous air pollutants at Ferroalloys Production facilities, both of which involved solicitation of comment on a variety of requirements implementing Next Gen elements, some of which were finalized and some not. See 81 Fed. Reg. 35824 (June 3, 2016) and 80 Fed. Reg. 56593 (Sept. 18, 2015); 82 Fed. Reg. 5401 (Jan. 18, 2017) and 79 Fed. Reg. 60238 (Oct. 6, 2014). Although EPA is reconsidering certain portions of both of those rules, no Next Gen provisions have been removed so far.

Moreover, EPA’s work to support innovative air emission measurement technologies continues. For example, staff in EPA’s Office of Air Quality Planning and Standards (OAQPS) are currently working on an update to EPA’s 2011 Optical Remote Sensing Handbook, describing the primary remote measurement technologies, current approaches, and practical uses. Remote measurements of air emissions are those that are conducted away from the point or area where the pollutant is released, like at a fence-line. EPA staff are working on a similar handbook addressing nanoscale sensing technologies, including emerging nano-enabled NP and gas sensors. EPA’s OAQPS also has ongoing studies to further evaluate Optical Gas Imaging (OGI) or infrared cameras for leak detection of VOCs, some of which already are in use in the Oil and Gas Sector rule. So EPA hardly has abandoned its goal of advancing air emission measurement technologies, at least as far as its budget will allow. EPA staff also participate in consensus-based organizations, one of which is currently working on a draft guideline for choosing real-time, on-line VOC measurement devices.

As for electronic reporting, some may have assumed that the Trump administration’s decision not to publish and make effective a final rule, signed on December 21, 2016, establishing mandatory “electronic reporting” requirements for numerous categories of stationary sources subject to New Source Performance Standards (NSPS) under the Clean Air Act signaled a change in direction. Many of the commenters on the proposed rule supported the move to electronic reporting but objected to use of the specified EPA-designed software, describing it as outdated, clunky and difficult to learn and use. Closer examination of EPA’s activities, however, reveals no underlying change in agency policy on electronic reporting. In 2017-2018, EPA finalized revisions to three rules establishing National Emission Standards for Hazardous Air Pollutants (NESHAP) (40 C.F.R. Part 63, subparts MM, CCCC, and VVV) imposing electronic reporting requirements similar to those objected to in the NSPS rulemaking. And EPA has at least three more open proposals with similar revisions. So, if a change of heart has occurred regarding mandating use of EPA’s arguably outdated Electronic Reporting Tool (ERT), that news has not trickled down to the rule writers.

Last year, I posed a number of questions about the Next Gen program, focusing on details like whether something could be “Next Gen” if it relies on old technology (like clunky, outdated software); and when should a new technology be considered “available” (e.g., can EPA mandate use of proprietary technology?) and sufficiently “validated” to use for compliance determinations. These questions are just as relevant today.