Environmental Enforcement

Troutman Sanders attorneys Randy Brogdon and Rich Pepper  authored an article published in Law360 titled “Workplace Safety’s Little-Known Hammer: The Clean Air Act” which examines the workplace safety requirements of the Clean Air Act and the potential consequences of exclusively relying on similar, but not identical, requirements under the Occupational Safety and Health Act. They

Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters.  Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action.  The final guidance replaces previous interim guidance issued in January 2018.

The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states.  The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.
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The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus.  Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance.  EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources.  In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary.
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EPA recently released its FY 2018 Enforcement Results highlighting the environmental benefits reaped from its enforcement and compliance assurance actions over the past year.  This year’s report shows a marked shift away from previous years’ reports, which focused on the number of cases initiated and resolved and the amount of penalties imposed.  Overall enforcement numbers declined over previous years, with a continuing decline in inspections from 10,612 in FY 2018 compared to 11,941 in FY 2017, fewer cases initiated and concluded, and few penalties imposed from $69.4 million in FY 2018 compared to $1.67 billion in FY 2017.  To contextualize the penalty reduction, EPA notes that annual penalty totals are often skewed by one or two large cases in a particular year, such as the Volkswagen mobile source defeat device enforcement with $1.45 billion in penalties in FY 2017 and the $5.7 billion in penalties assessed in FY 2016 for the BP oil spill.  Despite other reductions, the report shows an increase in enforcement of environmental crimes for FY 2018.

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EPA recently released the pre-publication version of its proposed National Compliance Initiatives for FY 2020-2023.  Notably, consistent with Susan Bodine’s August 21, 2018 Memorandum “Transition from National Enforcement Initiatives to National Compliance Initiatives,” EPA has extended the cycle from two years to four years, moved away from sector targeting, and updated its focus for FY 2020-2023 from enforcement to compliance initiatives.  EPA believes this adjusted focus will “better convey the overarching goal of increased compliance and the use of not only enforcement actions, but the full range of compliance assurance tools.”

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