June 14, 2019

Draft Policy for Planning and Communication Between EPA and States

On May 13, 2019, EPA released a draft policy establishing procedures for improving communication and workflow between the agency and states regarding civil enforcement and compliance assurance. [84 FR 20882] Titled Enhancing Planning and Communication Between the EPA and the States in Civil Enforcement and Compliance Assurance Work, the draft policy is meant to formalize interim guidance from 2018. The draft policy also considers recommendations from a 2017 joint workgroup formed by the agency and the Environmental Council of the States.

Periodic Joint Work Planning

Joint planning between EPA and state agencies is designed to minimize surprises by ensuring open, two-way communication. It is also important to establish which group is taking the lead on various enforcement responsibilities including inspections and formal enforcement actions. The draft policy identifies likely participants and sets up a three-pronged planning process to meet this goal:

Strategic planning to discuss environmental compliance problems in the state, compliance assurance priorities, emerging issues, and resource allocation;
Joint inspection planning to avoid duplicative efforts, improve efficiency, and create flexibility in setting and adjusting inspection targets; and
Joint enforcement planning to determine which agency will initiate enforcement action after a review of inspection observations and findings.

Authorized Programs Take the Lead

For state authorized environmental programs, EPA defers to the state to implement any corresponding inspections and enforcement actions. The policy identifies circumstances, however, when it may be necessary for EPA to get involved or even take the lead:

Joint work planning or specific situations where the state requests that EPA take the lead;
Violations that are part of a national compliance initiative;
Emergency situations or situations where there is a substantial risk to human health or the environment;
Situations where a state lacks adequate equipment, resources, or expertise;
Situations involving multi-state or multi-jurisdictional interests or interstate impacts;
Significant noncompliance that the state has not timely or appropriately addressed;
Serious violations for which EPA’s criminal enforcement authorities may be needed;
State enforcement program review inspections; and
Situations that involve enforcement at federal- and state-owned or operated facilities.

Whether a state or EPA takes the lead, there may be occasions when an issue needs to be elevated to obtain resolution. If the staff at EPA and a state are unable to resolve a matter promptly, the draft policy includes a procedure for elevating the matter through senior staff, and if ultimately necessary, up to the Assistant Administrator for the Office of Enforcement and Compliance Assurance.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.