The Nickel Report

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.”

Notably, EPA has renamed its Initiatives to emphasize the Agency’s renewed focus on enforcement for the FY2024–2027 cycle, contrasting its approach to addressing its National Compliance Initiatives (“NCIs”) in the current FY2020–2023 cycle (discussed in an earlier post). The NCIs, established by the last Administration, reflect EPA’s heightened focus on compliance assurance as a method to improve environmental outcomes. Renaming the Initiatives as NECIs in the FY2024–2027 cycle therefore reflect—what Acting Assistant EPA Administrator Larry Starfield calls—a “comprehensive” approach, as described in EPA’s Updated Policy for Enforcement and Compliance Initiatives. Accordingly, EPA plans to utilize the traditional tools of criminal and civil enforcement (both judicial and administrative), as well as informal enforcement and compliance assurance tools to ensure accountability and encourage greater environmental compliance.

EPA used three criteria to evaluate which of the six existing FY2020–2023 NCIs to continue, modify, or conclude, as well as what new Initiatives the Agency should consider as potential NECIs for the FY2023–2027 cycle. Those three criteria are as follows:

1. The need to address the environmental problem, with an increased “need” if the problem impacts environmental justice communities;
2. Whether federal enforcement (i.e., actions via OECA) of that environmental problem can help (i) ensure consistent enforcement across the country, (ii) “promote a level playing field,” and (iii) increase the number of regulated entities that achieve compliance; and
3. Whether focusing on that Initiative aligns with the FY2022 to 2026 EPA Strategic Plan.

Consequently, EPA has proposed to continue four FY2020–2023 NCIs, conclude two NCIs, and propose two potential NECIs for fiscal years 2024 through 2027. The Table below identifies EPA’s Initiatives and compares the current NCIs to the Agency’s proposed NECIs.

As highlighted in the Table above, EPA has taken both a targeted approach, as well as a broader approach, in selecting its FY2024–2027 Initiatives. For determining which current NCIs to continue, EPA specifically selected environmental problems that were not satisfactorily addressed via its FY2020–2023 program. For example, EPA will continue (and modify) its efforts aimed at “Reducing Significant Non-Compliance with NPDES Permits” because, despite reducing water contamination risks for 900,000 people, the Agency found that nearly 22.5 million people in 2022 still consumed water from an CWS that had at least one health-based violation. Similarly, EPA plans to continue its Initiative focused on “Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources,” changing its enforcement and compliance strategy by specifically targeting sources in industries with “widespread compliance issues,” as determined by EPA. For selecting new Initiatives to incorporate in its NECIs, EPA chose omnipresent environmental problems: climate change impacts and “forever chemicals” (PFAS). Nonetheless, whether its Initiatives target specific facilities or broad environmental issues, EPA’s central focus remains steadfast—ensuring that EPA (1) “Tackle[s] the Climate Crisis,” and (2) “Take[s] Action to Advance Environmental Justice.”

Notwithstanding its specified focus on climate change mitigation via its proposed new NECI, EPA intends to generally address climate change within its FY2024–2027 program, fully incorporating mitigation efforts in all NECIs. This systemic framework is evident in the Agency’s Federal Register publication, whereby EPA plans to “further the EPA Strategic Plan goals” (one of which is addressing climate change) in each NECI, such as, by seeking remedies from permit violators to advance climate resiliency.

For the second new NECI that EPA proposes, PFAS contamination, EPA’s proposal indicates an enforcement-oriented approach: “EPA [is] committed to hold polluters and other responsible parties accountable for their actions” and “assume responsibility.” This focus is unsurprising considering the Agency’s recent actions to research PFAS exposure pathways, reduce PFAS pollution, protect communities from PFAS, and more. Unknown, however, is the extent of OECA’s enforcement efforts, as EPA has initiated several rulemakings related to PFAS and anticipates finalizing a PFAS rule under the SDWA by FY2024 that, inter alia, sets an enforceable PFAS contamination standard. The Agency has taken many other actions in its efforts to “tackle the PFAS crisis and protect American communities.”

In proposing its FY2024–2027 NECIs, EPA plans to conclude two current NCIs: Reducing Toxic Air Emissions from Hazardous Waste Facilities, and Stopping Aftermarket Defeat Devices for Vehicles and Engines. Accordingly, these Initiatives will no longer be a specified National Initiative to which OECA focuses its resources because EPA’s enforcement efforts were successful in reducing hazardous air emissions and stopping aftermarket defeat devices. Nonetheless, the concluded NCIs will return to the Agency’s standard “core” enforcement program at the end of FY2023, whereby OECA will continue to address violations of related environmental laws and regulations, as well as promote compliance.

Lastly, EPA’s NECI publication in the Federal Register solicits public comment on two additional areas that the Agency is considering to incorporate into its NECI program: (I) “Reducing Exposure to Lead,” which is already being addressed by EPA in all environmental media, yet remains (as EPA states) “one of the country’s most pressing environmental and human health concerns”; and (2) “Addressing Coal Combustion Residuals” (also known as coal ash) from coal-fired powerplants. EPA has acknowledged that financial resources limit the number of Initiatives the Agency can include in its NECI program; that said, simply soliciting comments suggests that OECA will likely increase its focus on these two areas, regardless of naming one or both as a NECI for the FY2024–2027 cycle. In sum, the newly proposed NECIs align with EPA’s most recent enforcement-and-compliance approach, which incorporates the Agency’s broader goals (to consider climate change and environmental justice) in its decision-making processes. Additionally, EPA remains keenly alert with regard to emerging environmental problems, such as PFAS contamination, and has shown an intent to utilize traditional enforcement tools to ensure its policy goals are achieved. Thus, although the current FY2020–2023 NCIs will continue to guide EPA (and OECA) in its enforcement and compliance efforts until the end of FY2023, regulated entities within the industries targeted by EPA’s proposed FY2024–2027 NECIs should prepare now. A selection memorandum and the final FY2024–2027 NECIs will be published before the end of September 2023.