EPA Announces New Compliance Policy

EPA has announced a new compliance policy that some will view as providing welcome relief to industry and others may view as providing unwarranted concessions.  The subject line of the EPA memo announcing the new policy is “Transition from National Enforcement Initiatives to National Compliance Initiatives” (emphasis added).  That alone is an indication of how things have changed.  EPA’s National Enforcement Initiatives (“NEIs”) have focused on various industry and agricultural sectors for the past two decades.  NEIs result in targeted enforcement in each EPA region because of a perceived lack of compliance by some regulated parties in the sectors selected.  NEIs have been selected every three years, and recent sectors have included oil and gas, chemical manufacturing, and animal feeding operations.

Going forward, EPA will use National Compliance Initiatives (“NCIs”) instead of NEIs.  Consistent with its focus on Cooperative Federalism – the concept of the federal government sharing power with states – EPA has announced that it will provide states with “additional opportunities for more meaningful engagement” in selecting NCIs and in EPA’s compliance activities within the states.  Specifically, EPA says it is making four important adjustments to its policy:  (i) modifying the selection criteria for the FY 2020-23 NCI cycle to better align with EPA’s Strategic Plan, (ii) engaging more fully with states and tribes in the selection and development of NCIs, (iii) enhancing use of a full range of compliance assurance tools in an NCI (with enforcement being only one of those tools), and (iv) extending the NCI selection cycle to four years (rather than the current three) to better align with EPA’s National Program Guide cycle.

For FY 2019, EPA will modify its implementation of the existing NEIs to evolve them into NCIs.  It anticipates selecting NCIs for FY 2020-2023 by April 2019.  The upshot of this change in policy is probably less federal enforcement and, depending on the state, perhaps more state enforcement.  Of course, this is the policy of the current Administration.  If President Trump is not re-elected, it’s a sure bet the policy will change.

Memo from Susan Bodine, Assistant Administrator, to Regional Administrators, “Transition from National Enforcement Initiatives to National Compliance Initiatives” (August 21, 2018).