Audit, Compliance and Risk Blog

On November 22, the US Environmental Protection Agency (EPA) announced the success of its ongoing National Compliance Initiative for “Reducing Significant Non-Compliance (SNC) with NPDES Permits,” addressing high levels of non-compliance with individual permits to discharge water pollutants under the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination system (NPDES). EPA started the Initiative in fiscal year (FY) 2018, in cooperation with delegated state water quality agencies, after compiling and evaluating permit holders’ data showing significant non-compliance by over 20% of the 46,000 permitted facilities around the country. The Initiative’s goal has been to cut non-compliance in half by the end of FY 2022. EPA’s November 22 report claims that this goal has been exceeded, with significant non-compliance rates down to 9%.

On October 19, 2022 the US Environmental Protection Agency (EPA) and the United Parcel Service (UPS) settled a massive enforcement case covering violations of hazardous waste management requirements under the Resource Conservation and Recovery Act (RCRA) at 1,160 UPS facilities across forty-five (45) states and the territory of Puerto Rico. Most of the identified violations resulted from UPS’ misclassification of the quantities of hazardous waste generated at its facilities, and resulting failures to meet the additional requirements actually applicable at the mis-classified facilities. The national prosecution followed an investigation and subsequent Consent Agreement and Final Order (CAFO) in EPA’s Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas and 66 Tribal Nations), which developed after enforcement at a single UPS site in Arkansas. The new nationwide settlement also appears in a CAFO, in which UPS agrees to pay more than $5 million in fines and to undertake enhanced compliance programs. The settlement is a good reminder to all organizations generating hazardous waste, that failures to meet RCRA-related administrative requirements can create enforcement liability even if wastes are managed responsibly.

No, the title is not a stutter; I’ve written it that way to emphasize that the new Environmental Protection Agency (EPA) proposal to revise its Accidental Release Prevention (ARP) program rules under the Clean Air Act (CAA) represents only the latest step in nearly-decade-long changes to these requirements across the last three Presidential administrations. ARP was enacted after the 1990 Clean Air Act (CAA) Amendments, and its often known by its core requirement that targeted facilities prepare Risk Management Programs (RMPs) to prevent and respond to potential catastrophic releases of chemicals.

On June 17, the Ninth Circuit (federal) Court of Appeals issued an important ruling on national pesticide regulation, directed at the chemical glyphosate, which is the active ingredient in the ubiquitous weedkiller Roundup (originally marketed by Monsanto, which was bought by Bayer in 2018). The order remands to the Environmental Protection Agency (EPA) the agency’s determination that glyphosate does not pose “any unreasonable risk to man or the environment,” citing evidence that such risks may indeed be present. The case, Natural Resources Defense Council v. EPA, interprets and applies the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This decision is the latest step in controversies dating to 2009, when EPA began its latest FIFRA hazard review and reregistration determination for glyphosate.

On May 12, 2022, the US Department of Justice (DOJ) published an interim final rule that revokes a Trump-era prohibition against its attorneys’ use of payments to third parties, including via “supplemental environmental projects (SEPs)”, in settlements with violators of federal environmental laws. (I discussed Trump Administration policies several times, most recently HERE). In these cases, DOJ acts as the attorney for the agencies, such as the Environmental Protection Agency (EPA), that enforce laws and regulations allegedly violated. This rule change would codify policy changes presented in a memorandum from Attorney General Merrick Garland to US attorneys. This change is designed to restore flexibility to DOJ’s US attorneys to trade penalty dollars for more rapid commitments by wrongdoers to undertake actions to offset harms caused by their violations.

On May 4, 2022, the US Environmental Protection Agency (EPA) published notice of a proposed consent decree in litigation brought by the environmental group Center for Biological Diversity (CBD). EPA proposes to issue a decision responding to a petition filed by CBD in 2014, about whether to list discarded polyvinyl chloride (PVC) as hazardous waste under the Resource Conservation and Recovery Act (RCRA). CBD filed the suit early in 2021, after EPA had taken no action on its petition for seven years, claiming that the agency’s inaction violated a duty to act. EPA is now ready to commit to issue a proposed decision no later than January 20, 2023, and a final decision by April 12, 2024.

The Environmental Protection Agency (EPA) has proposed to ban a number of longstanding uses of chrysotile asbestos, using expanded authority provided as part of amendments adopted to the Toxic Substances Control Act (TSCA) in 2016. This proposal is EPA’s latest step to apply its expanded authority to review and restrict uses of asbestos, renewing agency efforts from the 1980s that were blocked by litigation.

On March 28, the US Environmental Protection Agency (EPA) proposed regulations requiring “non-transportation-related onshore facilities” to prepare response plans covering possible releases of hazardous substances, and submit those plans to EPA. This proposal implements longstanding but unused EPA authority under the Clean Water Act (CWA). The remainder of this note discusses the proposal.

On March 28, the Biden Administration issued its budget proposal for federal Fiscal Year (FY) 2023 (October 1, 2022 through September 30, 2023). The administration proposes a $11.9 billion budget for the Environmental Protection Agency (EPA), a 29% ($2.6 billion) increase above EPA’s adopted 2022 budget of $9.6 billion – similar to the administration’s FY 2022 proposal of $11.2 billion (which I wrote about HERE), which Congress cut considerably.

The US Environmental Protection Agency (EPA) continues to expand and refine environmental compliance requirements, including those related to greenhouse gas (GHG) emissions. In particular, facilities and organizations subject to EPA's mandatory GHG emission reporting rules should be preparing to submit reports covering calendar year 2021. The remainder of this note summarizes these requirements.