On August 21, in a memorandum to the Regional Administrators (the Memorandum), the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance communicated the agency's plan to transition its enforcement framework "to better convey the message that increased compliance is the goal, and enforcement actions are not the only tool for achieving this goal."
Consistent with this shift from its past enforcement paradigm, the EPA announced the renaming of what were previously referred to as National Enforcement Initiatives (NEIs), or "national priorities," as National Compliance Initiatives (NCIs), effective in 2019. As stated in the Memorandum, this name change signals the EPA's "focus on compliance as the goal, the broader use of compliance assurance tools, and the opportunity for enhanced state engagement."
The current NEIs, which are considered every three years and are selected based on established agency criteria, are in effect through fiscal year 2019. The Memorandum outlines a plan to select NCIs that will be reevaluated in four-year cycles, the first of which is slated to span fiscal year 2020 to fiscal year 2023. According to the Memorandum, the selection criteria for the new NCI cycle will be modified to better align with the Agency Strategic Plan Measures and Priorities. The EPA plans to increase engagement of the states and tribes in the process of selecting and developing NCIs.
The Memorandum also announces the EPA's decision to retire several NEIs that focus on specific and targeted industries, leaving these NEIs to the agency's core enforcement program, as implemented at the state level. These targets include oil and gas (extraction activities), agriculture (concentrated animal feeding operations), municipalities (sewer overflow and contaminated stormwater) and the reduction of air pollution from the typically most significant sources of emissions.
According to the Memorandum, these NEIs are being retired because the EPA feels the environmental compliance issues that led to their listing as NEIs have been largely resolved and compliance has been generally achieved throughout these sectors. The EPA will continue to focus on reducing the most serious risks of accidental releases at industrial and chemical facilities, and on addressing the most significant sources of hazardous air pollutants and toxic air emissions, as well as unpermitted discharges.
The Memorandum clarifies that the EPA will emphasize the use of alternative compliance approaches in lieu of traditional enforcement practices such as facility inspections, formal enforcement cases, and the initiation of civil, criminal or judicial actions. Instead, nontraditional approaches, such as compliance assistance, voluntary resolutions and use of the EPA's self-disclosure audit policies, may be used to further the EPA's stated goal of achieving increased compliance. However, regulated entities can still expect to see traditional enforcement techniques being used; the completion of ongoing enforcement actions under the current NEIs is a stated EPA focus for fiscal year 2019.
Should you have any questions regarding the issues discussed above, please feel free to contact any of the attorneys listed in the sidebar.
On March 20, Craig Gianetti, a partner in Day Pitney's Real Estate & Land Use group and secretary of the New Jersey State Bar Association (NJSBA) Land Use Section, will be moderating and speaking at the 2019 Land Use Update, a program presented by the New Jersey Institute for Continuing Legal Education (NJICLE) and being held at the New Jersey Law Center in New Brunswick, NJ.
Craig Gianetti and Nicole Magdziak co-authored an article, "An Update on Redevelopment and Pilots," published by Dimensions, a newsletter of the New Jersey Builders Association.
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Peter Wolfson was mentioned in an article, "Over-Capacity Crowd for Madison Historic Preservation Commission's Hearing on Proposed Movie Theater Redevelopment," published by Tapinto.net.
Kate Coffey was mentioned in an article, "Planning Board Grants Preliminary Approval for Assisted Living Facility," published by centraljersey.com.
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Day Pitney represented AlphaCrest Capital Management LLC (AlphaCrest), a quantitative research and technology-driven systematic trading firm based in New York, in connection with (i) the acquisition of a minority ownership interest in AlphaCrest by Brummer & Partners, an alternative investment manager based in Sweden and (ii) an investment by Brummer's BMS Multi-Strategy fund of funds in AlphaCrest Offshore Strategies Fund Ltd., an affiliated offshore feeder fund of the investment manager.
Elizabeth Barton was quoted in an article, "Why Businesses Must Lead on Sustainability," published by the Connecticut Business and Industry Association, Inc.