The Environmental Protection Agency (EPA) formalized a policy this year that is designed to improve its coordination with states on compliance and enforcement activities. In the EPA’s memorandum announcing the policy (entitled Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work), the agency outlined collaborative processes for EPA regions and the states to use in planning inspections and enforcement activities that include joint and early planning, regular communication and increased transparency. The EPA indicates these joint planning activities should also include strategic planning discussions that take into consideration issues like federal and state enforcement priorities and emerging issues. The EPA anticipates that such planning efforts will decrease and avoid duplicate inspection and enforcement activities, reduce burdens on the regulated community and avoid enforcement inspections that “surprise” the states.
In addition to proclaiming its intent to foster better cooperation with the states on these issues, the EPA affirmed that it intends to defer to states as the primary implementers of authorized programs in those states. Although, perhaps not surprisingly, the EPA reserved the right to take the lead when:
(1) there is a joint work plan or the state requests that EPA take the lead; (2) violations of National Compliance Initiatives are involved; (3) emergency situations arise; (4) the state lacks equipment, resources, or expertise; (5) multi-state or multi-jurisdictional issues arise; (6) the state has failed to timely address significant violations; (7) EPA criminal enforcement action is necessary; (8) EPA is fulfilling its statutory duty to verify the efficacy of state programs; and/or (9) a federally owned or operated facility or state-owned or operated facility is involved.
While the policy does not establish a binding mandate for EPA regions and the states to cooperate, it is another signal from EPA Administrator Andrew R. Wheeler that those states having authorized, delegated and approved environmental programs actually deserve a say in the compliance and enforcement activities occurring in their own back yards. Further, in a nod toward ensuring the policy is at least somewhat effective, the EPA acknowledges that issues may arise between EPA regions and states in implementing these practices and instructs federal and state officials to immediately escalate such issues to management levels (including to the Regional Administrators and State Secretaries or Commissioners, if necessary) for prompt resolution.