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The Environmental Protection Agency (EPA) has announced its
proposed National Enforcement and Compliance Initiatives (NECIs)
for fiscal years 2024–2027. EPA is proposing to add two new
areas of enforcement focus: mitigating climate change and
addressing per- and polyfluoroalkyl substances (PFAS)
contamination. Those operating in the oil and gas industry, and
those involved with refrigerants, should take note. Interested
parties have until March 13, 2023 to submit comments to EPA on the
proposed changes.

What Are NECIs?

NECIs, formerly known as national compliance initiatives (NCIs),
represent EPA’s areas of enforcement focus. EPA selects NECIs
every four years. When selecting NECIs, EPA considers the following
criteria:

  • The need to address serious and widespread environmental issues
    and significant violations impacting human health and the
    environment, particularly in overburdened and vulnerable
    communities;

  • Areas where federal enforcement can help ensure national
    consistency, promote a level playing field, and achieve compliance;
    and

  • Alignment with the Agency’s Strategic Plan. EPA has stated
    that it aims to align the existing and future NECIs with two
    strategic plan goals: Goal 1: Tackle the Climate Crisis and Goal 2:
    Take Decisive Action to Advance Environmental Justice.

Currently, there are six NECIs in effect for FY
2020–2023:

  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 (NPDES) Program

  4. Reducing Non-Compliance with Drinking Water Standards at
    Community Water Systems

  5. Reducing Toxic Air Emissions from Hazardous Waste
    Facilities

  6. Stopping Aftermarket Defeat Devices for Vehicles and
    Engines

Proposed Changes to the NECIs for FY 2024–2027

EPA is proposing to continue initiatives #1–4 from the
list above for FY 2024–2027. In addition, EPA is proposing to
remove initiatives #5 and #6 from the list and replace them with
two new initiatives: mitigating climate change and addressing PFAS
contamination.

Adding Mitigating Climate Change and Addressing PFAS as New
Initiatives

The mitigating climate change NECI would focus on reducing (i)
noncompliance with the American Innovation and Manufacturing Act,
which regulates the import, production, use, and sale of
hydrofluorocarbons; (ii) excess emissions from municipal solid
waste landfills and oil and natural gas production facilities; and
(iii) noncompliance with methane regulations. EPA says that
although it has previously sought to incorporate climate-change
considerations into existing initiatives, this NECI would present a
new focus on climate mitigation, rather than climate
resiliency.

As for addressing PFAS, EPA seeks to continue implementation of
the 2021–2024 PFAS Strategic Roadmap. The PFAS NECI would
focus on identifying PFAS exposures that are a threat to human
health and the environment. EPA intends to emphasize pursuit of
enforcement against parties responsible for such exposures. EPA
says that it will focus enforcement efforts on PFAS manufacturers
and federal facilities that may be a significant source of PFAS
contamination. EPA further indicated that “it does not intend
to pursue entities where equitable factors do not support assigning
[Comprehensive Environmental Response, Compensation, and
Liability Act] liability.”1

Returning Two Initiatives to the Core Enforcement
Program

EPA is proposing to send initiatives #5 (toxic air emissions
from hazardous waste facilities) and #6 (vehicle defeat devices)
back to the core enforcement program. EPA says it made significant
progress toward reducing pollution from hazardous waste facilities
through compliance training and enforcement cases and has addressed
the most serious defeat-device cases through enforcement. This does
not mean that enforcement in these areas will end. When an
initiative is removed from the NECI list, it returns to what EPA
calls its “core” enforcement program. EPA can be expected
to continue to pursue significant violations in these areas, but we
can expect to see fewer cases going forward.

What About Environmental Justice?

EPA is not proposing a standalone NECI to promote environmental
justice. However, EPA states that it has “fully incorporate
environmental justice consideration into every existing and
proposed NECI.”2

Requested Public Comments

EPA is requesting public comment on the following:

  • Which of the current national initiatives should continue into
    the FY 2024–2027 cycle, as is or modified, or be returned to
    the standard or “core” enforcement program at the end of
    FY 2023?;

  • The proposed addition of two new NECIs for addressing PFAS and
    mitigating climate change;

  • Whether to add other new NECIs to address coal combustion
    residuals pollution and/or reducing exposure to lead contamination;
    and

  • Whether there are any other areas that EPA has not identified
    in the proposed rule that should be considered as NECIs.

Parties interested in commenting on the proposed NECIs can
submit public comments identified by Docket ID No.
EPA-HQ-OECA-2022-0981. All comments must be received on or before
March 13, 2023. For more information on how to submit public
comments or the impacts of the NECIs on your business, please
contact Jonathan D. Brightbill (Partner, White Collar, Regulatory
Defense & Investigations/Environmental Litigation), Madalyn
Brown (Associate, Environmental), or your Winston relationship
attorney.

Footnotes

1. 88 Fed. Reg. 2096 (January 12, 2023).

2. Id. at 2094.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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