U.S. EPA Region 9 Enforcement Priorities Revealed

Environmental Law  

April 11, 2018

Ever since President Trump took office in January 2017, several questions have arisen within the environmental community regarding how his administration will change the legal and enforcement priorities of the United States Environmental Protection Agency (U.S. EPA).  During an event last week hosted at the Bar Association of San Francisco, Ms. Sylvia Quast, the Regional Counsel for U.S. EPA Region 9, shed some light on the enforcement philosophy and priorities in the coming year for Region 9.  A major theme of Ms. Quast’s presentation was that, despite a number of key changes in federal environmental policies, the key enforcement principles and priorities for U.S. EPA Region 9 will remain unchanged for the next year.

Enforcement Philosophy

According to Ms. Quast, U.S. EPA Region 9’s major enforcement philosophy will continue to emphasize cooperative federalism for enforcing environmental laws to maximize the resources of the states and U.S. EPA.  Region 9 also expects to continue implementing Supplemental Environmental Projects (SEP) in environmental enforcement actions to directly benefit impacted communities.  As we reported last year, in June 2017, Attorney General Sessions issued a memorandum that prohibited payments to third parties in settlement actions.  This memorandum raised some concerns in the environmental community regarding the future use of SEPs.  However, Ms. Quast confirmed that the memorandum laid out an exception to the prohibition of third-party settlement payments in the context of avoiding harm to the environment.  Thus, SEP projects complying with 2015 U.S. EPA Guidance on SEPs should continue to be implemented and encouraged in Region 9.

Ms. Quast also laid out the following five broad enforcement priorities of the United States Department of Justice (U.S. DOJ):

  • Coordinating with states and tribes on enforcement actions;
  • Employing the full range of enforcement tools, including graduated enforcement actions and providing more compliance assistance to the regulated community;
  • Going “back to the basics,” including returning to the core environmental enforcement statutes, such as the Clean Water Act (CWA), the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA), rather than creating new enforcement issues and theories;
  • Protecting America’s workers, competitiveness, and infrastructure, especially under the Accidental Release Prevention/Risk Management Plan Rule in CAA Section 112(r); and
  • Timely resolution of enforcement actions by removing 50 percent of backlogged cases that are 3 years or older and still pending in Region 9.

Enforcement Priorities

Ms. Quast also laid out more substantive enforcement priorities for Region 9, as well as the National Enforcement Initiatives.

The National Enforcement Initiatives include:

  • Reducing risks of accidental releases at industrial and chemical facilities through enforcement of CAA Section 112(r);
  • Cutting hazardous air pollutants (particularly from large product storage tanks);
  • Cutting hazardous air emissions at hazardous waste facilities;
  • Keeping industrial pollutants out of the nation’s waters (chemical & metal manufacturing, mining, and food processing), with a particular focus on food processing in Region 9;
  • Keeping raw sewage and contaminated storm water out of our nation’s waters;
  • Concentrated animal feeding operations (CAFOs);
  • Reducing air pollution from the largest sources (which is currently not a priority in Region 9, as these cases have already been completed in the Region); and
  • Ensuring energy extraction activities comply with the environmental laws (this is not currently a major issue in Region 9).

More information about the National Enforcement Initiatives of the U.S. EPA is available at https://www.epa.gov/enforcement.

Ms. Quast identified the following as the major enforcement priorities for Region 9:

  • Mobile sources – Region 9 is leading the nation, particularly in working with the states on trucking regulations;
  • Drinking water – Region 9 has started implementing a drinking water plan, especially for lead and arsenic in water, and dealing with the smaller water systems prevalent in the Region;
  • Lead – Region 9 is working with state agencies on a guidance plan and various action items;
  • Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) enforcement, particularly in imports; and
  • Superfund and site cleanup – Broad enforcement priorities for the Region include clean up related to vapor intrusion, urban lead, groundwater, and at abandoned mine sites.

During her conclusion, Ms. Quast reiterated that while many high-level policy changes have occurred at the national level, Region 9 will continue to prioritize the enforcement of key environmental laws and issues in the coming year.