EPA's Enforcement Priorities for 2010

January 8, 2010
by JOHN GULLACE
Client Alert Newsletter Forecast 2010

The U.S. Environmental Protection Agency ("EPA") has indicated that one of its guiding themes will be the protection of those who are most vulnerable: children, environmental justice communities and tribal areas. Consistent with this theme, EPA Administrator Jackson has been conducting an "Environmental Justice Tour" with members of Congress, and EPA has publically stated that there is a need to protect environmental justice communities from refineries. EPA views the Clean Air Act ("CAA") as the most efficient way to obtain tangible health benefits and has stated that, based upon a recent EPA victory, the government can recover mitigation damages including health costs. According to EPA, a significant area of enforcement under the CAA will be New Source Review violations and Prevention of Significant Deterioration permitting violations. Coal fired utilities will be a focus of enforcement and EPA has publically stated that there are 50 ongoing investigations involving such utilities. In addition to coal fired utilities, CAA enforcement will focus on acid manufacturing, cement plants, and glass manufacturing. Other target industries identified by EPA are carbon black, PVC, oil and gas production, polystyrene foam, landfills, industrial boilers, iron and steel, natural gas, elevated flares, aluminum, municipal waste combustion, ethanol production, wood, paper and pulp. EPA believes that there is "rampant" non-compliance with flare use especially in disproportionately impacted communities.

Clean Water Act enforcement will focus on improving water quality in the Chesapeake Bay and Puget Sound. In furtherance of its goal to cleanup the Chesapeake Bay through enforcement, on December 29, 2009, EPA sent letters to the states in the Chesapeake Bay watershed, including Pennsylvania and Delaware, warning them of consequences if they do not meet pollution reduction targets. With regard to the Chesapeake, the emphasis will be on agricultural runoff, stormwater, and concentrated animal feeding operations.

For hazardous waste enforcement, there is increased interest in financial assurance requirements, coal combustion wastes and surface impoundments, among others. Finally, the Department of Justice Environmental Crimes Division announced a new Worker Endangerment Initiative which will result in prosecutions at the intersection of OSHA and environmental law.