New EPA Enforcement Guidance – “No Surprises” Approach with States

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EPA’s Chief Enforcement Officer, Susan Bodine, has issued guidance on EPA and state coordination with a focus on cooperative federalism.  Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States, Jan. 22, 2018.

Among other things, the guidance requires EPA Regional Offices to develop procedures to better communicate and coordinate inspections and enforcement activities within primacy states.  The main goal is to improve state-federal relationships and operate under a “no surprises” approach.  Secondly, the guidance is intended to ensure better coordination, e.g., sharing inspection plans and enforcement priorities, which EPA believes will lead to better compliance results.

The guidance carves out several exceptions where EPA may decide to go-it-alone, including, for example, cases involving significant noncompliance that a state has not adequately or timely addressed, emergency situations where there is significant risk to the public (e.g., lead in drinking water), program oversight inspections, when specialized equipment is needed, and serious violations involving criminal activity.

Look for this collaborative trend to continue in future actions, inspections, and settlements, but not so much in the criminal space where state programs are simply not as robust.  EPA’s criminal program remains the only effective environmental law enforcement program in most states, so this policy change will continue to be limited to civil and administrative actions as well as compliance and inspection activities.