EPA's New Enforcement Priorities Target the Energy Extraction Industry

Author:Ms Heather Blandford
Profession:Dinsmore & Shohl

Originally published March 16, 2010

As many interested environmental and industry groups have lauded and bemoaned respectively, the Environmental Protection Agency ("EPA") recently finalized its enforcement priorities for 2011 through 2013. While some goals (namely, new source review, mineral processing, air toxics, and concentrated animal feeding operations) appeared as priorities on the 2008 - 2010 list, EPA has added "energy extraction" pollution as a new enforcement initiative. This priority, specifically targeting Eastern mountaintop mining operations, oil and natural gas wells, and other gas shale play activities, has the potential to place new burdens on two already heavily regulated industries.

EPA published its final determination of priorities on February 22, 2010, after soliciting public comment in the Federal Register on January 4, 2010 (75 F.R. 146)(the public comment period ended on January 20). In the final, pared-down list, EPA's Office of Compliance and Enforcement named the following "National Enforcement Initiatives for FY 2011-2013,"1 reducing the number of priorities from previous years:

Keeping raw sewage and contaminated stormwater out of our nation's waters Preventing animal waste from contaminating surface and ground waters Cutting toxic pollution that affects communities' health Reducing widespread air pollution from the largest sources, especially the coal-fired utility, cement, glass, and acid factors Reducing pollution from mineral processing operations Assuring energy extraction sector compliance with environmental laws All goals but the last have been on EPA's list since 2008. The addition of energy extraction may be understood in part by EPA's priority selection process. EPA's Office of Enforcement and Compliance Assurance ("OECA") reached out to other EPA divisions and regions, state governments, Indian tribes, environmental media, environmental advocacy groups, environmental justice policy groups, and the public. OECA seems particularly receptive to groups such as EarthJustice, Appalachian Voices, and the Sierra Club, whose public comments praise EPA's actions in targeting coal-fired power plants but encourage using multiple means to restrict coal mining and its alleged pollution of groundwater and injurious air emissions. These groups further suggested that EPA increase oversight of state agencies that are "chronically underfunded and frequently overmatched by powerful polluters with deep pockets."

These environmental...

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