On Jan. 22, 2018, Susan Bodine, Environmental Protection Agency (EPA) Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued interim guidance to EPA Regional Administrators outlining a program for enhancing states’ role in environmental enforcement. See EPA, Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (Jan. 22, 2018) (Guidance). The Guidance reflects EPA Administrator Scott Pruitt’s goal and the agency’s strategic plan to emphasize cooperative federalism in EPA policy and foster a more collaborative partnership between the EPA and authorized states. Key aspects:
• Joint EPA-state planning. The Guidance directs the regions to conduct senior leadership meetings with each of their states. The regions need to have adequate procedures in place to inform management on the important compliance matters to discuss with state leadership and ensure that there are “no surprises.” Meetings should cover
- the compliance problems and priorities for the regions and the state
- planning for inspections, including a discussion of priorities and sharing of resources
- EPA audits of state programs
• State primacy in authorized programs. The Guidance also directs the regions to “generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs,” subject to certain exceptions, including
- to fill gaps in state programs or where states have not addressed a significant issue
- in emergency situations or when there is a significant threat to public health
- to address widespread noncompliance problems identified in an EPA national initiative
• EPA may invoke the exceptions only after coordinating among the agencies’ management. For example,
- If a State requests the lead for responding to violations identified by EPA, the region should defer to the state except where EPA believes its involvement is required after discussion among the agencies’ upper management.
- Moreover, whenever regional and state senior leaders do not agree on a particular enforcement response, the question should be elevated to the OECA Assistant Administrator to make the decision.
• Evaluation process. The Guidance also documents a process for EPA to review and update the document. In September, the regions will provide progress reports to EPA headquarters, and EPA will update the Guidance based on the reports and input from states and other compliance partners, including the Environmental Council of the States (ECOS). EPA has been working with ECOS to develop principles and best practices for collaborative inspections, enforcement and performance measurement. EPA will consider the principles and best practices developed by this ECOS-EPA Compliance Assurance Collaboration Workgroup when updating the Guidance.
Some of these procedures are not new and reflect policies that EPA has historically followed, although some states took issue with the more top-down approach of the last administration. By documenting these procedures, the Guidance provides additional clarity on the process for EPA-state collaboration and sets the stage for a more significant role for the states in environmental compliance assurance, consistent with the goals of the current administration.