Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters. Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action. The final guidance replaces previous interim guidance issued in January 2018.

The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states. The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.

General Principles

The first section of the guidance sets forth high level principles and expectations to guide EPA, including a “no surprises” principle between EPA and the states that encourages regular communication. The section discusses the need for strategic planning to address each state’s specific environmental compliance problems, their compliance assurance priorities, and how the combined EPA and state resources can address these issues. Regarding inspections, the guidance establishes an expectation that EPA and the states should avoid “duplicative or overlapping” inspections that would result in inspections of the same facility for the same regulatory requirements within the same twelve-month period, noting, however, that multiple inspections may be appropriate for complex sites or where additional inspections will serve a valuable purpose. EPA is expected to provide states with advance notice of inspections and where EPA is taking the lead in an investigation. Moreover, EPA regions are expected to share information requests and inspection reports with the states. In terms of joint enforcement, the guidance notes that EPA will communicate with the states when EPA believes an enforcement action may be warranted and EPA should discuss with the state whether the enforcement should be a federal, state, or joint enforcement action.

Roles of EPA and the States

The second section of the guidance addresses the respective roles of EPA and the states in implementing authorized programs. The guidance includes an explicit preference for EPA to defer to the states as the primary implementer of inspections and enforcement. However, the guidance then lays out several notable instances in which EPA involvement may be warranted, including:

  1. When a state requests that EPA take the lead;
  2. When the violations are part of an EPA-designated “National Compliance Initiative”;
  3. Where there is an “emergency” situation;
  4. Where states lack adequate equipment, resources, or expertise;
  5. Multi-state or multi-jurisdictional cases;
  6. “Significant” violations that the state has not timely or appropriately addressed;
  7. “Serious violations” for which criminal enforcement may be warranted;
  8. Inspections needed by EPA to help verify the effectiveness of state enforcement programs, and
  9. When federal and state-owned facilities are involved.

Procedures for Elevating Issues

The brief final section lays out “best practices” for resolving and elevating issues to the appropriate management level, including appropriate timelines and a preference for resolution at the career management level rather than escalating issues to regional or state senior management or ultimately to Regional Administrators or State Agency heads.