Posted on February 1, 2022 by Carol F. McCabe
When it comes to enforcement initiatives, EPA’s priorities are clear. EPA’s National Enforcement Initiatives are announced on a three-year cycle, and EPA’s annual release of enforcement results is an extensive and in-depth glimpse of the prior year’s efforts. It should be no surprise that EPA’s announcement of its enforcement results for fiscal year 2021 is heavily focused on EPA’s enforcement actions taken in support of the Biden Administration’s Environmental Justice initiatives. EPA highlights its EJ directives, swift action in EJ communities facing acute threats from air and water pollution, increased engagement with communities, increased access to enforcement and compliance information, and support for victims of environmental crime. Consistent with its other annual enforcement results announcements, EPA quantifies the aggregated impacts of its enforcement activities: $8.5 billion spent by facilities returning to compliance; 7.6 billion pounds of hazardous waste properly treated, minimized or disposed; cleanup commitments worth $1.9 billion and $106.1 million in past costs recovered; 28 years of incarceration. Compared to prior years’ results (and recognizing that FY2021 began during the prior administration) FY2021 shows a predictable uptick across a number of metrics.
As a whole, EPA’s enforcement results present a wide range of information on EPA’s activities spanning EJ, civil enforcement, criminal enforcement, federal facilities, and Superfund, complete with case maps and analysis of data and trends. And as it does every year, the release offers several key insights for air practitioners.
- First, EPA continues to aggressively enforce its National Compliance Initiative entitled: Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants. Citing several high-profile enforcement matters, EPA’s actions resulted in the reduction of over 15.7 million pounds of methane and 6.7 million pounds of VOCs and HAPs across 63 concluded enforcement actions during the fiscal year.
- Second, EPA’s actions make clear that it will use a wide array of legal and technical tools to advance its agenda. In actions in St. Croix and in South Carolina, EPA invoked Section 303 of the Clean Air Act, which provides for the issuance of an emergency order in response to an imminent and substantial endangerment to public health or welfare, to require immediate actions to either pause operations or reduce emissions from the facilities. From a technical standpoint, EPA has more often imposed fenceline monitoring requirements or gathered fenceline data in support of its enforcement actions. One such tool is EPA’s Geospatial Measurement of Air Pollution (“GMAP”) mobile laboratory. As explained in its fact sheet, the GMAP is a mobile air monitoring vehicle that is equipped with analyzers for methane, BTEX, total VOCs, H₂S, and other compounds. Together with its GPS equipment, these capabilities allow the GMAP to conduct real-time monitoring and mapping of pollutants, when the vehicle is either in-motion or stationary.
- Third, EPA warns that AP-42 emission factors should be used as a “last resort” for the estimation of emissions and that facilities assume all risks of their use. In a November 2020 Enforcement Alert, EPA reminds permitting agencies, consultants, and regulated entities that the improper use of AP-42 emission factors can lead to compliance and enforcement risk. EPA explains that because AP-42 emission factors (even those that are highly rated) are based on a wide range of data averaged across source types, they are not likely to be accurate predictors of emissions from a specific source. Citing enforcement examples of facilities that underestimated VOC emissions by using AP-42 emission factors for asphalt and fuel oil storage, EPA recommends that more accurate mean of quantifying source-specific emissions are continuous emission monitoring systems, stack testing, vendor guarantees, material balances, and optical remote sensing.
- Chemical storage and safety are in focus under the Emergency Planning and Community Right to Know Act and the Clean Air Act Risk Management Program (“RMP”) requirements. With a November 2021 Enforcement Alert, EPA reminds warehouses and other storage facilities of common compliance misses, including failure to account for chemicals in containers, insufficient tracking of chemical inventories in facility management systems, incorrect calculations of chemicals in solutions or mixtures, co-location of incompatible chemicals, lack of adequate structural safety systems, and lack of adequate maintenance programs for tanks and secondary containment.
Certainly 2022 will bring more in the way of EPA enforcement under the Clean Air Act and other programs. As a whole, EPA’s efforts in FY2021 show a commitment to undertaking significant enforcement actions in overburdened communities and a deeper dive into the details of facility operations, from the management of chemicals to the estimation of emissions. Fenceline monitoring and advanced technologies will continue to support EPA’s efforts. Significantly, along with EPA’s clear message of stepped up enforcement, EPA’ annual enforcement results and several of its Enforcement Alerts issued during the past year cite EPA’s Audit Policy as an available means of addressing non-compliance while minimizing penalty liability, suggesting a continuing commitment to that program.