Bloomberg BNA Daily Environment Report Guest Article: Clean Air Act: New Developments That Are Redefining the Enforcement Landscape

10/29/2014

In its own strategic plan, the Environmental Protection Agency anticipates a decline of more than 30 percent in federal inspections and evaluations during the next five years and also expects to bring 40 percent fewer civil judicial and administrative enforcement cases during that time. Compared with decades of robust enforcement, which included industry-wide enforcement initiatives that generated global settlements carrying multimillion-dollar penalties and obligations, it appears that the EPA’s enforcement efforts are due to ease up a little and perhaps even allow the regulated community to relax a little too. Not so fast.

In light of certain recent developments, the chances that a business or other regulated entity will face a Clean Air Act enforcement action may be— counterintuitively—growing, not shrinking. These developments, which appear to reflect a change in the agency’s approach to enforcement, include a heavy emphasis on the development and deployment of monitoring technologies, the promulgation of regulations that will facilitate the use of air quality data for enforcement purposes and the closing of safe harbors (or loopholes, depending on one’s perspective), such as the startup, shut-down and malfunction (SSM) exemption or defense. As a result of these developments, a diminishing level of activity at the EPA’s Office of Enforcement and Compliance Assurance (OECA) will not necessarily equate to a drop-off in enforcement activity; it simply marks a shift in who will build and bring the cases. In this article, we briefly explore these recent developments, how they are changing the enforcement landscape and what companies can do to prepare.

Excerpted from the Bloomberg BNA Daily Environment Report, October 29, 2014. To view full article, click the PDF below.

Bloomberg BNA Daily Environment Report - Clean Air Act - New Developments That are Redefining the Enforcement Landscape.pdf

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