Collaborative Enforcement: EPA and the States

In September 2017, the EPA’s Office of Enforcement and Compliance Assurance (OECA) and the Environmental Council of the States (ECOS) kicked off a work group to find ways “to improve the state-federal relationship in the context of compliance assurance.”

In terms of the regulated community, compliance assurance comprises both compliance assistance with regulations and enforcement when regulations are allegedly violated. The work group was part of the EPA’s emphasis on cooperative federalism, which the Agency describes as “working collaboratively with states, local government, and tribes to implement laws that protect human health and the environment, rather than dictating one-size-fits-all mandates from Washington.” Below, we summarize the two main products of the EPA-ECOS work group.

OECA Interim Guidance

In January 2018, the OECA published an interim guidance document “to immediately begin” the movement toward a more collaborative partnership between the EPA and states the EPA has authorized to implement federal environmental programs. The guidance covers “all EPA compliance assurance activities, such as inspections and enforcement, in the authorized states and includes the following elements:

• A “no surprises” collaborative relationship between EPA regional offices and the states. EPA regions should meet, preferably in person, with senior leadership in each of its states. Discussions should address planned high-profile inspections and enforcement actions. Also, information sharing should address issues such as the compliance problems and needs in the state; planned facility inspections; which agency should do those inspections; explanations of why specific facilities are proposed for inspection; combining EPA and state inspection resources; planned audits of state programs; and the results of any program audits that suggest a state program deficiency.
• State primacy. With respect to inspections and enforcement, the EPA will generally defer to authorized states as the primary day-to-day implementer of their authorized/delegated programs. Exceptions include instances when program audits indicate a need for the EPA to fill a gap until a state deficiency is addressed; emergency situations where there is significant risk to public health and the environment; significant noncompliance that the state has not timely addressed; actions that require specialized EPA equipment and/or expertise; actions to address widespread noncompliance problems in a sector/program; and certain serious violations requiring criminal investigations.

ECOS Report

In August 2018, the ECOS published its “final report” on the work group. The report endorses subsidiarity, the doctrine that environmental enforcement is most effectively accomplished in a decentralized fashion by local authorities while the EPA focuses on “performing functions that it alone can accomplish,” such as addressing noncompliance that crosses state boundaries or taking over enforcement when a state has not taken appropriate action. The work group report includes a list of additional principles and best practices that the ECOS believes will enhance communication, planning, and coordination between states and EPA regions on compliance assurance. Following are several best practices included in the report.

• EPA regions and states should meet on an agreed-upon, regular schedule to discuss and plan enforcement and inspection activities.
• When a state and an EPA regional office disagree about how well they are coordinating with each other on inspection and enforcement work, they should try to resolve these disagreements and improve future coordination. If a state and EPA regional program are unable to resolve disagreements, it is best to elevate the issue to the state environmental commissioner and the EPA’s regional administrator.
• States and EPA regional offices should communicate as they develop their separate inspection priorities and commitments and should work together as appropriate on joint inspection priorities and commitments. Both should recognize that priorities and commitments may evolve during the year.
• In general, states and EPA regions should seek to avoid duplicative or overlapping inspections that would lead them to inspect the same facility for the same regulatory requirements within a short time period. Multiple inspections by states and EPA regions may be appropriate for complex sites where inspections will focus on different regulatory requirements or facility operations or where a state and the EPA agree that multiple inspections serve a valuable purpose.
• Where states and EPA regions co-implement an inspection plan, they should do so in ways that make the best use of each entity’s expertise and resources to protect public health and environmental quality.
• Where the EPA has decided to take enforcement action, it should notify the state before notifying the facility. Absent confidentiality concerns, the region should update the state on the progress of such actions as appropriate.

EPA and state cooperation and collaboration in compliance assurance is not a new concept or practice. But redundant and conflicting approaches that overtax resources and confuse the regulated community continue. It remains to be seen if the stronger emphasis on cooperative federalism will significantly unify enforcement efforts.

The OECA’s interim guidance is here. The ECOS’s report is here.