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The National Association of Clean Air Agencies (“NACAA”) submitted October 25th comments to the United States Environmental Protection Agency (“EPA”) Office of Enforcement and Compliance Assurance (“OECA”) in regards to their FY 2020-2021 National Program Guidance (“NPG”).

OECA is an office in EPA that works with EPA regional offices in partnership with state and tribal governments and other federal agencies to enforce United States environmental laws.

NACAA describes itself as the national, non-partisan, nonprofit association of 153 air pollution control agencies in 40 states, the District of Columbia, four territories and 116 metropolitan areas.

As a preliminary matter, NACAA’s comments note that the members serve as EPA’s co-regulators. Consequently, the organization states that it is essential that state and local air quality agencies and EPA work cooperatively on enforcement and compliance activities. Note is taken of EPA’s prior indications that it plans to enhance reliance on state and local air quality programs through cooperative federalism.

NACAA believes that it is important that the state and local air quality agencies receive adequate federal funding to be able to carry out such work. Therefore, concern is expressed about inadequacy of federal funding with the prospects of taking on additional work.

Specific recommendations in terms of the NPG include:

• To the extent possible, EPA should treat states in a consistent manner. While some flexibility is called for to reflect different circumstances, as a general matter it makes sense to strive for national consistency. This is especially true when addressing issues with larger companies that have a presence in multiple jurisdictions. In order to move toward greater consistency, headquarters should work closely with regional offices to implement new guidance.
• EPA should continue to work toward global-sector settlements where appropriate, in conjunction with state and local agency input. This would include continued pursuit of global settlements already in progress.
• EPA should use settlement monies to advance the objectives of the environmental statute(s) that is the basis of the enforcement action in partnership with state and local air pollution control agencies.
• It is very important that, when requested, EPA provide an environmental presence to aid state and local agencies in enforcement activities. Even in state or local areas that are authorized to enforce clean air requirements, EPA serves a critical role in addressing serious national noncompliance problems, such as those affecting multiple jurisdictions. EPA should also assist state and local agencies with enforcement issues when the agencies request support due to a lack of resources or capability. Joint enforcement action may, at times, be the best option when EPA and the appropriate agency are in agreement.

A copy of the NACAA comments can be found here.