U.S. EPA 2008 Compliance and Enforcement Agenda

The United States Environmental Protection Agency's (EPA) enforcement office recently released its 2008 compliance and enforcement agenda. According to Grant Nakayama, assistant EPA Administrator for Enforcement and Compliance Assurance, in 2008, the EPA will begin a three-year cycle of its national priority program, covering the years 2008, 2009 and 2010. The issues that will dominate EPA's compliance and enforcement agenda in 2008 are:

1) violations of the Clean Water Act;

2) compliance with Resource Conservation and Recovery Act (RCRA) requirements;

3) violations of the Clean Air Act; and

4) financial assurance for site closures.

The EPA's 2008 Clean Water Act enforcement actions will focus on water contamination situations caused or made worse by wet weather, including combined sewer overflows, stormwater overflows, sanitary sewer overflows, and runoff from animal feeding operations. The EPA will also continue working with municipalities to achieve the maximum environmental benefit with regard to combined sewer overflows.

With regard to RCRA compliance, the EPA will be focusing on ensuring that mineral processors meet hazardous waste requirements. In this regard, it should be noted that another 2008 EPA enforcement goal will be financial assurance pertaining to site closures. In particular, the EPA will be investigating whether there is an appropriate amount of funds for the closure of sites or facilities that handle hazardous waste, toxic substances or other pollutants. The EPA is training people on the state level how to interpret financial statements and understand other instruments such as insurance bonds, and to ensure that there exists adequate financial resources to close sites and maintain them post-closure.

The final area that will dominate the EPA's 2008 agenda is Clean Air Act violations relating to New Source Review (NSR). The EPA will target three industries for NSR requirements--cement, glass, and acid manufacturing. The EPA will also continue work relating to air toxics by ensuring compliance with maximum achievable control technology requirements.

With regard to NSR compliance, in 2008 the EPA will be operating under a new rule that clarifies when facilities must keep records and report emissions under the “reasonable possibility” test. The new rule provides that record keeping and reporting should occur when projected emissions increases could equal or exceed 50 percent of the Clean Air Act’s NSR significant levels for any pollutant. Read the full text of the final rule and related information.

Finally, in 2008 the EPA further intends to pursue rulemaking to alter its "emissions increase" test so that NSR would be triggered only when a modification increases a facility's maximum potential hourly emissions rate, i.e. when a plant increases its production capacity. This rulemaking is in response to the U.S. Supreme Court's 2007 Environmental Defense v. Duke Energy Corp. decision, which held that any physical change to a facility that increases actual emissions measured on an annual basis is subject to NSR. Accordingly, until EPA finalizes a new rule, pursuant to Duke Energy Corp. any modification allowing a facility to increase its hours of operation will trigger NSR requirements.

Please contact Terri Czajka or Freedom Smith with any questions regarding these rules or EPA's 2008 agenda.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.