EPA Enforcement UpdateApril 27, 2018 – Newsletters
In January and March, 2018, Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued two interim memoranda for enforcement procedures. The first, issued January 22, 2018, was issued “in order to immediately begin the movement toward a more collaborative partnership between EPA and authorized states.” This interim guidance will be updated after EPA and a work group of state representatives develop principles and best practices for state and EPA collaborative efforts. Procedures for periodic joint EPA and state work planning, state primacy in authorized programs and evaluation of the interim procedures are set out in the memorandum.
The interim guidance calls for meetings between EPA regions and each state therein to discuss specific inspections and enforcement actions and specifically states that EPA will generally defer to authorized states for day-to-day implementation of authorized/delegated programs. Exceptions that could warrant EPA involvement, after close communication between the upper management of EPA and the states, include: a need for EPA to fill a gap identified by program audits; emergency situations or situations presenting a significant risk to public health and the environment; significant non-compliance that has not been timely or appropriately addressed by the state; actions requiring specialized EPA equipment and/or expertise; federal and state owned and operated facilities; actions to consistently address widespread non-compliance problems for companies with facilities in multiple states or where cross-boundary impacts affect other states, tribes or nations; program oversight inspections; a state request for assistance in a specific situation; or serious violations that need to be investigated and addressed by EPA’s criminal enforcement program.
The interim guidance also specifies that “where the EPA identifies violations at a facility, but the State requests that it take the lead for remedying the violations, the Region should defer to the State except where the EPA believes that some EPA involvement is warranted according to the exceptions listed above.” If a state is the lead in an enforcement action the interim guidance requires a clear understanding between EPA and the state of what EPA considers a timely and appropriate response, documentation by the region of the understanding, and a record of decisions and periodic assessment as to how well the collaboration is working. If a state and region do not agree on a particular aspect of the enforcement action, it should be elevated to the assistant administrator level for a decision.
In evaluating the interim guidance and limitations OECA will solicit input from states and EPA will review the interim guidance in fiscal year 2019.
On March 23, 2018, Assistant Administrator Bodine issued interim procedures requiring early notice of cases recommended for referral to the Department of Justice (DOJ) for enforcement action. The stated purpose for early notice is to promote efficient referral to DOJ and to assure timely compliance. The memorandum sets procedures for providing said notice and states that efficient referrals to DOJ is in furtherance of EPA’s objective to reduce the amount of time from violation to correction.
Critics have expressed concerns that deference to states for enforcement and review of referrals to DOJ in conjunction with reduced enforcement numbers from 2017 signals a shift by EPA to overall reduce enforcement of environmental statutes and regulations. However, on their face, the interim measures in the two memoranda promise to provide better communication between enforcement agencies and EPA, which should further collaborative enforcement goals.