EPA to Review Consent Decrees To Ensure Compliance

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EPA is increasing oversight of its open consent decrees. First as part of EPA’s FY 2014-2018 Strategic Plan, the agency has set the goal of maintaining reviews of the overall compliance status of 100 percent of open consent decrees by 2018.  EPA claims that it reviewed 91 percent in FY 2013, a drop from 100 percent in 2009. While EPA may have reviewed most consent decrees, it did not address not all instances of noncompliance, and likely does not have the means to do so. While some may hope that lax enforcement continues, the petroleum refining sector (at minimum), should take action now to ensure compliance at refineries under consent decrees.

By 2011, 90 percent of the petroleum refining sector were under Clean Air Act-related consent decrees with EPA. Yet while lauded for these efforts, the agency has failed to review compliance with the consent decrees. Earlier this month, the Inspector General (IG) brought this failure to light in a report, “EPA Needs to Demonstrate Whether It Has Achieved the Goals It Set Under the National Petroleum Refinery Initiative (NPRI).” As part of the NPRI, refineries entered into consent decrees with EPA to cut emissions by specified amounts, develop specific pollution control technologies, and implement enhanced air quality monitoring and reporting techniques. The IG states that EPA has not had a strategy in place to ensure that emissions cuts and monitoring and reporting requirements are achieved. Only sporadic follow-up inspections have occurred at some facilities where a limited number of installations have taken place. Following the report, EPA vowed to improve its oversight of NPRI consent decrees. By the end of May, the agency intends to have measures in place to demonstrate the emission reductions under NPRI consent decrees, and will provide information to the public on the emissions reductions achieved to date.

Refineries, as well as others under consent decrees, should expect to see heightened EPA scrutiny of consent decree compliance. Those entities will be well-served to implement internal environmental management systems to ensure compliance with applicable consent decree requirements, and verify that all requirements are met when seeking to terminate a consent decree.