July 24, 2017 | Eric L. Hiser
On June 28, 2017, EPA issued its “FY 2018-2019 National Program Manager (NPM) Guidance for the Office of Enforcement and Compliance Assurance”.
The National Program Manager guidance is “a preliminary planning document and reflects the most current information available regarding specific programmatic commitments and activities: and “describes how the EPA plans to work with tribes, states, and local government agencies to ensure compliance with environmental laws.”
ANALYSIS
The OECA guidance states its general priorities for enforcement as follows:
EPA’s enforcement priorities remain focused on violations in the statutory programs that it implements directly. As has long been the case, the overwhelming majority of EPA’s enforcement actions are taken in programs that are not delegable to the states or in states that have not sought authorization to implement a delegable program. In authorized states, EPA and states share enforcement responsibility with primary enforcement responsibility residing with the states,2 which often join with EPA in bringing cases. EPA generally takes the enforcement lead in authorized states only: 1) at the request of the state ; 2) when the state is not well positioned to bring an action (e.g., federal and state facilities or in actions involving facilities in multiple states); 3) when the states “does not provide the resources necessary to meet national regulatory minimum standards or has a documented history of failure to make progress toward meeting national standards;” or 4) when EPA has a unique role, including emergency situations and national enforcement priority areas.
Of direct relevance to the NSR programs, OECA notes that it wants to strengthen collaboration with states and emphasizes working consistent with the guidelines in the June 1984 “Policy Framework for State/EPA Enforcement Agreements” (revised 1986 and 1993). EPA also states that “In FY 2018-2019, EPA’s compliance monitoring activities such as field inspections and data analysis tools, will be prioritized and focus on those programs that are not delegated to states and tribes, while providing monitoring in authorized programs to support and complement authorized state, tribal, and local government programs.
EPA states that it will continue to track performance by looking to:
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The number of NSR/PSD investigations of coal-fired electric utilities;
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The number of completion reports or referrals to DOJ for coal-fired electric utilities.
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The number of compliance evaluations/inspections for air at land-based natural gas extraction and production facilities.
No new NSR performance measures are proposed.
COMMENTARY
The FY2018-2019 OECA guidance suggests that EPA under Administrator Pruitt is placing a stronger emphasis on state and local program enforcement, with federal enforcement priorities being directed toward non-delegated programs or states and local programs with recognized program deficiencies.