On May 13, 2019, the U.S. Environmental Protection Agency (EPA) released a draft policy titled “Enhancing Planning and Communication Between the EPA and the States in Civil Enforcement and Compliance Assurance Work.” The guidance sets expectations and procedures for enhancing planning and communication on civil enforcement between the EPA and state agencies implementing federal environmental programs. As enforcement issues are always of key concern to businesses, the policy offers important insights into a little understood area.
The concept of “cooperative federalism” is uniquely vague to most business entities, especially in the all-important area of enforcement. The EPA’s FY 2018–2022 Strategic Plan places cooperative federalism and compliance as fundamental priorities. In a prior October 30, 2018, enforcement policy, the EPA outlined key principles, including general deference to the states in state-implemented programs, effective communication between the EPA and the states, clear standards of review and a clear process for elevating issues. The draft policy intends to improve upon and update the earlier enforcement policy to ensure EPA Regional offices and state environmental agencies develop appropriate and agreed upon cooperative enforcement goals.
Fundamental to the policy’s effectiveness is communication. The policy stresses the need for every Regional EPA office to meet as appropriate with each state agency in its region. The regional office must have procedures in place to inform the state’s leadership of any work-sharing arrangements, collaboration or issues between the state and the EPA on compliance assurance work to ensure “no surprises.”
Strategic planning is essential and should include awareness of state environmental compliance problems; national, regional, and state compliance priorities; emerging issues; and how to optimize state and EPA combined resources to meet these needs.
Another key element of the policy relates to the concept of coordination. Facility inspection planning should focus on avoiding duplication. Cooperative inspection planning helps the EPA and the states meet their respective goals efficiently while ensuring the same facility won’t inadvertently be inspected by the EPA and a state. The EPA regions should provide states with advance notice of inspections, and EPA regions and states “should invite each other to participate in inspections where there is value in both entities participating.” In situations where the EPA has the lead, EPA regions “should share information requests with a state concurrently with sending them to the recipient.”
Joint enforcement planning is similarly outlined in the policy, with a focus on coordination. Where the EPA believes enforcement is warranted, there should be a discussion of which entity should bring the action. Where a state opts to take the lead, the EPA and the state should discuss how to proceed, being especially mindful of the need to maintain confidentiality.
The policy outlines in detail the roles in implementing authorized state programs. The EPA’s policy is generally to defer to the states as the primary implementer of inspections and enforcement in authorized programs. Exceptions to the rule include certain actions involving violations of the National Compliance Initiative (initiatives involving matters where national consistency is key); emergency situations where a substantial threat to human health or the environment exists; cases where a state lacks resources to undertake an action; cases involving multiple states or regions; significant noncompliance that a state hasn’t addressed in a timely way; criminal violations; or situations that involve federal or state owned or operated facilities.
If you’ve ever wondered why an EPA Regional office rather than a state enforcement agency is bringing an action or conducting an inspection, reviewing the draft policy should help. The policy is a significant improvement over earlier memoranda, is clearly written, and provides a straightforward delineation of the respective roles of EPA Regional enforcement personnel versus state enforcement agencies within the regions. While the EPA retains much discretion, the policy is deferential to state agencies and mindful of the core principles of “cooperative federalism.” The enforcement area is among the most sensitive to state or regional variation, and the policy appropriately reflects significant deference to state and local priorities.
Comments on the policy wrapped on June 12, 2019. The EPA will soon issue a final policy that, in all likelihood, won’t vary significantly from the draft as it is well written and makes a lot of sense.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at email@example.com
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.