Top Region 7 attorney details EPA’s biggest enforcement, compliance priorities

by Thompson Coburn LLP

Peter Cozad - EPA update - Thompson CoburnThe Environmental Protection Agency (EPA) took a major budget cut last year and is facing the same this year. But the agency is using creative settlement agreements, community projects, and some new high-tech tools to continue to push for greater enforcement in 2014, said David Cozad, Regional Counsel for EPA Region 7, which serves Iowa, Kansas, Missouri, Nebraska and nine Tribal Nations.

Cozad, who leads a team of 40 attorneys at the Region 7 offices in Kansas City, outlined EPA’s major environmental enforcement and compliance priorities in a recent update for the EHS Leaders’ Network, a group of leading environmental, health and safety professionals from companies and institutions from across the Midwest. The Network met at Thompson Coburn’s St. Louis office.

“We have to be smarter with the resources we have,” Cozad said. “We’re making better use of technology and data in ways that can make us more efficient.”

Here are some of the top environmental enforcement and compliance issues Cozad outlined in his update.

New air quality standards

Over the last five years, the EPA has promulgated a number of new National Ambient Air Quality Standards (NAAQS).

“The science keeps telling us that these pollutants are riskier than we thought they were, so the limits reflected in the NAAQS can drop over time,” Cozad said. Those stricter standards would translate to many more potential violations. For example, if a proposed new standard for ozone levels — 0.060 ppm — was adopted today, 650 new counties would qualify as “non-attainment.”

The EPA has faced a number of suits challenging its tougher standards for oxides of nitrogen (NOx), ozone, oxides of sulfer (SOx) and particulate matter (PM). So far, Cozad said, courts have sided with the EPA. That includes an April 17 decision from the U.S. Court of Appeals for the District of Columbia Circuit that upheld new mercury and air toxics standards for power plants, which are the nation’s single biggest source of mercury pollution, Cozad said.

“In the early 2000s, all of our air rules got challenged, and we’d lose and they’d all end up in a smoking crater,” Cozad said. “We’ve really reversed that now. We’ve gotten a lot better at promulgating air rules and having them stick.”

He added that for the majority of power plants, particularly those in the Midwest, the new NAAQS shouldn’t pose an insurmountable compliance hurdle. “This isn’t a game-changer in the Midwest,” he said. “By using known technologies, most of them can handle it.”

Responding to community concerns

“We’re really trying to focus our efforts on where we can make an immediate difference,” Cozad said. In many cases, that includes responding to community concerns about potentially hazardous environmental sites.

He cited the example of Chanute, Kansas, where residents voiced concerns about smells they assumed originated from a large cement plant operating in the area. The EPA teamed with the Kansas Department of Health and Environment to conduct an investigation and pinpointed the source of the fumes — which turned out to be a completely different industrial operation. The company that actually caused the problem agreed to a $371,000 EPA settlement, including environmental projects aimed at reducing annual hazardous air pollutants.

“It’s a good example of working with local health officials to address a community problem in a smart way,” Cozad said.

Similarly, the EPA’s involvement last year at a Superfund site in the heart of north St. Louis led to a historic $30 million settlement that will clean up a highly contaminated area immediately adjacent to a Boys & Girls Club. Thompson Coburn represented the Boys & Girls Club in the matter, which gives the Club the opportunity to acquire much of the site for its own future expansion.

Adding ‘Next Gen’ solutions to settlements

“How can we improve our compliance rates with fewer resources?” Cozad said that’s a question the EPA has been focusing on extensively. New “next generation” monitoring tools may provide an answer, he said, and the EPA has started incorporating some of these tools into settlements.

The result is more responsive, transparent compliance plans that incorporate penalty-free correction periods so a company can respond to any problems should they arise.

For example, in a 2012 settlement for violations at a refinery, a company agreed to install fenceline monitoring that reports weekly air toxics levels on a public website. In addition, a settlement with another company includes an infrared-camera imaging program that can help detect tank leaks invisible to the naked eye. In another major sewer district settlement, the parties agreed to employ flow monitors at sanitary sewer overflow sites.

Other miscellaneous items:

  • - CAFO actions: In areas like northwest Iowa, where concentrated animal feeding operations dominate the landscape, the EPA is generating better data to identify non-compliant operations. “We have much richer data sets now, so we’re able to target enforcement much better than we could five or 10 years ago,” Cozad said.
  • - Wetlands cases: “The Army Corps of Engineers is referring more wetlands cases to us,” he said. “They typically involve individual farmers that have modified a stream without getting a wetlands permit. They’re difficult to handle, but involve serious environmental damage.”
  • - What’s a U.S. waterway: The EPA recently released a proposed rule to clarify what constitutes “Waters of the United States” (WOTUS) under the Clean Water Act. “In the wake of the Supreme Court’s split decision … the truth is no one really knows the definition. It’s time to get a rule out there,” Cozad said. The most controversial element will be the proposed rule’s definition of “tributary,” he said. Region 7 is holding a number of listening meetings in the coming weeks on the proposed rule.

About the EHS Leaders’ Network
The EHS Leaders’ Network is sponsored by the Environmental Practice Group at Thompson Coburn LLP. The Network’s members include leading EH&S professionals from almost 50 major midwest companies and institutions.

The next Network meeting will feature a presentation by Johnnie Banks, Team Lead of the Washington D.C., office of the U.S. Chemical Safety and Hazard Investigation Board. Banks will talk about the deadly West, Texas, chemical explosion and the recent chemical spill in Charleston, W.V. He will detail lessons learned and expectations for adoption of best practices.




DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.