On July 11, 2019, the Environmental Protection Agency (the “EPA”) finalized its policy (the “Policy”) to defer environmental investigations and enforcement actions to authorized state agencies as the “primary implementer.” The Policy, set forth in “Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work,” issued by Susan Parker Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, seeks “to enhance effective partnerships with states in civil enforcement and compliance work.” The Policy replaces an interim guidance memorandum that the EPA issued on January 22, 2018. In drafting the new Policy, the EPA collaborated with EPA regional offices, a workgroup, and state environmental agencies.

While the Policy formalizes a procedure to ensure that there are “no surprises” when an inspection or enforcement action is taken by either the EPA or a state agency through “cooperative, periodic, and early joint planning and regular communication,” the EPA affirms that it “will generally defer to a state as the primary implementer of inspections and enforcement in authorized programs,” which include the Clean Water Act, Clean Air Act and Resource Conservation and Recovery Act. In delegating such authority to state agencies, the Policy sets forth nine situations where the EPA “may choose to take direct federal action” and apply its concurrent jurisdiction. The nine situations are:

1. Joint work planning or specific situations where the state requests that the EPA take the lead;
2. Violations that are part of a National Compliance Initiative (NCI), which for FY 2020-2023 include—
   • Reducing excess emissions of harmful pollutants from stationary sources,
   • Reducing hazardous air emissions from hazardous waste facilities,
   • Stopping aftermarket defeat devices for vehicles and engines,
   • Reducing significant noncompliance with national pollutant discharge elimination system permits,
   • Reducing noncompliance with drinking water standards at community water systems,
   • Reducing risks of accidental releases at industrial and chemical facilities, and
   • Reducing childhood lead exposures and associated health impacts;
3. Emergency situations or situations where there is substantial risk to human health or the environment;
4. Situations where a state lacks adequate equipment, resources, or expertise;
5. Situations involving multi-state or multi-jurisdictional interests of interstate impacts;
6. Significant violations that the state has not timely or appropriately addressed;
7. Serious violations for which the EPA’s criminal enforcement authorities may be needed;
8. State enforcement program review inspections; and
9. Situations that involve enforcement at federal and state owned or operated facilities.

In response to the Policy, concerns have been raised that delegating primary and greater enforcement responsibility upon state agencies (with limited funding and staffing) will reduce environmental law enforcement. Others have criticized the “no surprises” provision as an effort to “tak[e] the element of surprise away from inspections . . .  mask[ing] a ‘see-no-evil’ approach to corporate polluters.” Tim Whitehouse, the Executive Director of the Public Employees for Environmental Responsibility in a news release on EPA Drops Surprise Inspections: “No Surprises” Policy Aims to Avoid Embarrassing States Agencies, (July 18, 2019). However, the Policy’s “no surprises” provision is limited only to the procedures setting forth requirements for EPA and state agency communications, and does not address how communications with a target of an inspection or enforcement action should be handled.

Evaluating the potential liability and handling of a possible violation or enforcement matter can be complex, which must consider, among other matters, the interplay between the EPA’s and a state agency’s enforcement powers. 

Suhasini Ghosh, a legal intern, assisted in the preparation of this blog post.

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