The U.S. Department of Environmental Protection recently announced its national enforcement initiatives for the next three years. Businesses in Monmouth County and throughout New Jersey should be aware of the new priorities and how they may impact their potential environmental liability.
Every three years, the EPA refocuses its resources and identifies “the most important environmental problems where noncompliance is a significant contributing factor and where federal enforcement attention can make a difference.” Starting October 1, 2016 and continuing for three fiscal years, the EPA will keep four of its current National Enforcement Initiatives (NEIs), add two new initiatives, and expand one to include a new area of focus.
Below the key priorities identified by the EPA:
Keeping Industrial Pollutants Out of the Nation’s Waters (new initiative)
Reducing Risks of Accidental Releases at Industrial and Chemical Facilities (new initiative)
Cutting Hazardous Air Pollutants (expanded initiative)
Reducing Air Pollution from the Largest Sources
Ensuring Energy Extraction Activities Comply with Environmental Laws
Keeping Raw Sewage and Contaminated Stormwater Out of the Nation’s Waters
Preventing Animal Waste from Contaminating Surface and Ground Water
With regard to compliance with the Clean Water Act, the EPA plans to target industrial sectors like chemical and metal manufacturing, mining and food processing. According to the agency, water pollution data indicates that facilities in these industries are disproportionately responsible for nutrient and metal pollution in lakes, rivers and streams that can degrade water quality. To identify violations, the EPA will likely rely on discharge monitoring reports (DMRs) as well as the CWA’s National Pollutant Discharge Elimination System permit program.
The EPA also plans to increase scrutiny over facilities that make, use and store extremely hazardous substances. As highlighted by the agency, catastrophic accidents at these facilities—historically about 150 each year—result in fatalities and serious injuries, evacuations, and risk of harm to health and the environment. The EPA plans to reduce the risks of accidents through “innovative accident prevention measures, and improving response capabilities.” According to the agency, it has already designed 2,000 facilities as ‘‘high-risk’’ due to their proximity to densely populated areas, the quantity and number of extremely hazardous substances they use, or their history of significant accidents.
The EPA will continue to target leaks, flares, and excess emissions from refineries, chemical plants and other industries that emit hazardous air pollutants. The EPA also plans to expand its hazardous air pollutants initiative to include air toxics violations at facilities that generate, treat, store or dispose of hazardous waste.
The Message for New Jersey Businesses
Owners and operators of facilities in industries that are the subject of NEIs should be prepared for increased scrutiny from the EPA. In addition, should the agency identify violations, there is an increased risk of both civil and criminal liability with regard to NEIs.
Also of note, EPA intends to employ Next Generation Compliance strategies with regard to the NEIs identified for FY 2017-2019. This enforcement approach consists of five interconnected components: designing regulations and permits that are easier to implement, using advanced emissions/pollutant detection technology, implementing electronic reporting, expanding transparency by making information public, and adopting innovative enforcement approaches (e.g., data analytics and targeting).
The EPA has already started to incorporate Next Gen compliance tools into its civil judicial and administrative settlements. Examples include requiring: advanced monitoring, such as point source emission/discharge monitoring and ambient monitoring, independent third party verification of compliance with settlement obligations, and public accountability through increased transparency of compliance data.
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