EPA Enforcement Priorities for Fiscal Year 2013 May Impact Compliance Strategies

The U.S. Environmental Protection Agency (EPA)'s Office of Enforcement and Compliance Assurance (OECA) recently released draft guidance for its enforcement priorities for FY 2013 ¹. The EPA will be focusing on the following national enforcement priorities impacting a wide range of industry and state and local governments:

• Cleaning up communities
  - increase use of the Resource Conservation and Recovery Act (RCRA) corrective action to force polluters to clean up contamination in urban areas that impact minority communities
  - increase focus on environmental justice concerns
• Reducing water pollution from raw sewage and contaminated stormwater
  - reduce overflows from combined and sanitary sewers (CSOs and SSOs)
  - incorporate green infrastructure activities into permitting and enforcement actions
• Cutting animal waste to protect surface and ground waters
  - focus on concentrated animal feeding operations (CAFOs)
• Reducing widespread air pollution (including greenhouse gases) from the largest sources, especially the coal-fired utility, cement, glass, and acid sectors
  - focus on compliance with Greenhouse Gas Reporting Rule
  - encourage greenhouse gas emission reductions through settlements
• Cutting toxic air pollution that affects communities' health, focusing:
  - leak detection and repair
  - waste gas flares (particularly at petroleum refineries and chemical, petrochemical, and polymer manufacturers)
  - excess emissions (e.g., associated with startup, shutdown, malfunction)
• Assuring energy extraction sector compliance with environmental laws
  - focus on natural gas drilling and fracking
• Reducing pollution from mineral processing operations

The EPA has also set a goal of "resetting" relationships with states and Tribes in order to strengthen shared accountability and oversight. This initiative will begin with water programs and will include annual planning meetings between the EPA regional offices and states, along with detailed EPA review of state permitting and enforcement programs. The effects of this initiative have already been seen in Wisconsin, as the EPA Region 5 sent a letter to the Wisconsin DNR in July 2011 identifying 75 deviations between Wisconsin's water program and federal requirements.

In addition, the EPA intends to reduce its focus on the EPA Audit Policy in response to self-disclosures by the regulated community. Though the Audit Policy will remain available, the EPA believes its resources are better spent on traditional environmental enforcement.

These proposed revised goals for the EPA enforcement should be considered in the implementation of compliance strategies for local governments and private industry. Godfrey & Kahn counsels clients on compliance in all areas of environmental law and has substantial experience in representing clients in environmental enforcement actions by the EPA and state agencies. Please feel free to contact any member of Godfrey & Kahn's Environment & Energy Strategies Practice Group for more information on any of these proposed EPA compliance initiatives.

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¹ The full document is available at: http://www.epa.gov/planandbudget/annualplan/FY13_OECA_DraftNPMGdnce.pdf