Jan 242023

EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice

Timothy K. Webster, Greta T. Carlson and Samuel B. Boxerman
, , , , , ,

On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.

The NECIs guide the EPA’s enforcement efforts by focusing resources on several priority areas that represent “serious and widespread environmental problems.” According to the Notice, the NECIs are intended to advance the EPA’s Strategic Plan goals of addressing climate change and advancing environmental justice. To that end, the EPA indicates that it is planning to address environmental justice concerns in all of the NECIs and incorporate climate resiliency considerations where appropriate.

The EPA plans to continue four of the current six NECIs for fiscal years 2024–2027: (1) Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants; (2) Reducing Risks of Accidental Releases at Industrial and Chemical Facilities; (3) Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System Program; and (4) Reducing Non-Compliance with Drinking Water Standards at Community Water Systems. The EPA proposes to conclude the remaining two current NECIs — Reducing Toxic Air Emissions from Hazardous Waste Facilities and Stopping Aftermarket Defeat Devices for Vehicles and Engines — and return them to the core enforcement program to be addressed by standard enforcement and compliance assurance measures as appropriate.

The EPA’s two new proposed NECIs are Mitigating Climate Change and Addressing PFAS Contamination. In addition, the EPA is considering additional NECIs to reduce lead exposure and/or address coal combustion residuals. The Notice also invites the public to propose other areas for consideration as a NECI.

Comments may be submitted on or before March 13, 2023, via the Federal eRulemaking Portal.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Timothy K. Webster

Washington, D.C.

twebster@sidley.com

Greta T. Carlson

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

You might also like
U.S. EPA Removes Regulatory Affirmative Defense Provision Against Alleged Violations of Oil and Gas Facility NESHAPs

On October 22, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule removing an affirmative defense from Clean Air Act (CAA) National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories (Final Rule).[1] Prior to the Final Rule, owners or operators could assert an affirmative defense that alleged NESHAP standard violations were caused by an equipment malfunction.[2] A “malfunction” is defined as any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.[3]

EPA Issues Final Rule for Major Source Reclassification Under Clean Air Act Section 112

On Tuesday, September 10, the U.S. Environmental Protection Agency (EPA) issued a final rule establishing requirements for major sources of hazardous air pollutants — sources that emit or have the potential to emit 10 tons per year of a single hazardous air pollutant or 25 tons per year of a combination of hazardous air pollutants — that reclassify as area sources below these thresholds. Reversing a rule adopted during the Trump administration, the rule provides that sources emitting any of the seven persistent and bioaccumulative hazardous air pollutants listed under Section 112(c)(6) of the Clean Air Act must continue to comply with major source standards even if otherwise reclassified as area sources. As a result, reclassified sources will still be subject to maximum achievable control technology standards rather than less stringent standards applicable to area sources. In so doing, EPA maintains that at least 90% of the cumulative emissions of these pollutants will be subject to National Emission Standards for Hazardous Air Pollutants (NESHAP) regardless of future source reclassifications.

Recent Developments in U.S. EPA’s Hydrofluorocarbon Phasedown

There have been several recent developments in enforcement, litigation, and regulatory implementation of the U.S. Environmental Protection Agency (EPA) phasedown of hydrofluorocarbons (HFCs).