Cozad, David, US EPA, Dernovish, David, KDHE, Duggan, Tim, MO AGO, Tormey, Ed, IDNR, Evans, Parthy, Stinson Leonard Street, Regional Enforcement Priorities, MECC, 2016, Overland Park

1. Midwest Environmental Compliance Conference
May 12-13, 2016
Overland Park, Kansas
Regional and State Enforcement Priorities
David Cozad, EPA Region 7 Regional Counsel
Darian Dernovish, General Counsel, Kansas Department of Health and
Environment
Tim Duggan, Assistant Missouri Attorney General
Ed Tormey, General Counsel, Iowa Department of Natural Resources
Parthy Evans, Stinson Leonard Street LLP

2. Overview
• Enforcement Priorities
– National
– State Specific
– Facility Specific
• Enforcement Relationship between EPA and
States
– Delegated Programs
– Communication

3. National Enforcement
Initiatives: 2017-19
• Existing NEIs that Continue:
– NSR/PSD: Coal, Glass, Acid
plants, Cement
– Natural Gas Energy
Extraction
– CAFOs
– Raw Sewage (CSOs/SSOs)

4. Expanded NEI: Cutting Toxic Air
Pollution
• Styrene and TCE/PCE emitters
• VOC emitters in high
population areas
• Tank farms
• Landfills
• Sources contributing to Ozone,
SO2, and Lead attainment
concerns
• Air emissions from leaking
vents, equipment and units at
TSDs and LQGs
• (Part 265 Subparts AA, BB,
and CC)

5. New NEI: 112r and General Duty
Clause
• Reduce risk of accidental
releases at Industrial and
Chemical Facilities
• Focus on high-risk facilities in
five sectors:
– Refineries
– Chemical Manufacturing
– Ammonia Refrigeration
– Fertilizer Distribution
– Gas Processing Plants

6. New NEI: Industrial Wastewater
Dischargers
• Reduce sources of water
body impairment:
nutrients, metals, organic
enrichment
• Focus on four sectors:
– Chemical Manufacturing
– Food Processing
– Mining
– Primary Metal Manufacturing

7. KDHE Priorities

8. Iowa Enforcement Priorities

9. Missouri Enforcement Priorities

10. From the Forward to the Compliance
Manual for MDNR
“Department staff are expected to work cooperatively with anyone
who has an environmental problem, throughout the process of solving
it. We believe in offering our services up front to prevent problems
through Environmental Assistance Visits and other technical assistance
avenues. Where problems occur, we will work with the parties involved
to resolve the problems as quickly and productively as possible.
If a problem persist, the department must resort to stronger means to
address it. Any problem that is not solved must be quickly elevated to
the next stage so that threats to citizens’ health and Missouri resources
are eliminated promptly. Staff are directed to use the full range of
compliance tools to solve environmental problems and address as
many aspects of the problem as possible. Pollution must end. Damages
must be repaired. Penalties must be assessed fairly and assertively. No
one should profit from pollution. I also direct staff to avoid dwelling at
any stage that is not producing a resolution of a problem.”

11. 2015 Nebraska
NDEQ Annual Report to the Legislature

12. Enforcement Relationship between EPA
and States
• Formalities
– Delegations
– Memoranda of Agreement
• Implementation
– Communication
– Re-adjustments

13. Delegated Programs:
State and Federal Roles
The Supreme Court has described the respective roles and responsibilities of the states
and the federal government as follows:
“The Clean Water Act anticipates a partnership between the States and
the Federal Government. To effectuate this partnership, the CWA
authorizes the Environmental Protection Agency (EPA) to issue pollution
discharge permits, but provides that a State may administer its own permit
system if it complies with detailed statutory and regulatory requirements.
Even when a State obtains approval to administer its permitting system,
the Federal Government maintains an extraordinary level of involvement.
EPA reviews state water quality standards. It retains authority to object
to the issuance of particular permits, to monitor the state program for
continuing compliance with federal directives, and to enforce the terms of
state permits when the State has not instituted enforcement proceedings.”
United States Department of Energy v. Ohio, 112 S. Ct. 1627 (1992).

14. Delegated Programs: Concurrent
EPA/State Enforcement Authority
General Rule: Where a program has been delegated or authorized to a
state, EPA retains concurrent enforcement authority.
– Section 3008 of RCRA, 42 U.S.C. § 6928
– Section 309 of CWA, 42 U.S.C. § 1319
– Section 113 of CAA, 42 U.S.C. § 7413 (with 30 day advance notice
to violator and State)
Exception: See Harmon Industries v. Browner, 191 F.3d at 897-900 (8th
Cir. 1999) (under RCRA, EPA overfiling prohibitied where State has
already taken enforcement action)

15. EPA Enforcement Role in Delegated
State Programs
• State: Primary day-to-day
implementation in delegated/authorized
programs
• EPA – Ongoing responsibility to ensure
adequate implementation
• EPA Enforcement:
– Core level of independent federal presence –
inspections/enforcement
• EPA inspection = EPA enforcement
– State request for EPA action
– Interstate and national priority issues
– Fill gaps in state programs
– Joint EPA-state action
– Federal Direct Implementation Programs

16. EPA/State Memoranda of Agreements
Example: NPDES Program
• State submits a request to be authorized to
administer the federal program, a MOA, a
program description, statement of legal authority,
state laws and regulations
• Authorization includes public review
• Once authorized State assumes permitting
authority, certain permits are subject to EPA
review
• Authorization can be withdrawn by EPA or in
response to a petition for withdrawal

17. NPDES MAP

18. Iowa MOA

20. MO Hazardous Waste

25. EPA/State Communication Flow
• Formal
– Reporting under
– Periodic Conference Calls
– Other Informal