Interim Guidance Puts “Cooperative Federalism” into Enforcement

On January 22, 2018, EPA Assistant Administrator Susan Parker Bodine released an interim guidance memorandum, “Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States,” (Interim Guidance) that seeks to reset the enforcement relationship between EPA and the States into a more “cooperative” format. Although the Interim Guidance addresses enforcement generally, it has important implications for NSR practitioners.

ANALYSIS

The Interim Guidance builds on work of the ECOS-EPA Workgroup on State & Federal Collaboration in Compliance Assurance that begin in September 2017 and reflects an effort to implement a more collaborative relationship prior to the formal report of the Workgroup, which is working on developing “principles and best practices for State and EPA collaboration in inspections and enforcement, work planning and implementation, National Enforcement Initiatives, and outcome and performance measurement.” The Interim Guidance calls for the following steps:

1. Periodic Joint Work Planning. The Interim Guidance calls for joint planning between EPA and State career enforcement personnel, with specific procedures in place to ensure that senior EPA regional leadership and State political leadership are aware of high profile cases and to ensure “no surprises” in enforcement. The meetings will focus on compliance priorities, inspection schedules, the reasons and value of inspecting the facilities, which agency will take lead and whether facility will be informed in advance, and preliminary program audit findings. Program audit findings will remain “preliminary” until the State has a time to respond.

2. State Primacy in Authorized Programs. In general, the Interim Guidance states that EPA will generally defer to authorized States in inspection and enforcement except in specified instances:

a) Program audits indicate a need for the EPA to fill a gap until the State program deficiency is addressed.

b) Emergency situations or, situations where there is significant risk to public health and the environment.

c) Significant noncompliance that the State has not timely or appropriately addressed.

d) Actions that require specialized EPA equipment (e.g., infrared camera) and/or expertise.

e) Federal and State owned/operated facilities.

t) Actions to consistently address widespread noncompliance problems in a sector/program (such as the National Enforcement lnitiatives), to address companies with facilities in multiple States, or where there are cross-boundary impacts affecting other States, tribes, or nations.

g) Program oversight inspections.

h) Responses to State requests for assistance in a specific situation, or broader work-sharing arrangements in which the EPA takes the lead in particular sub-programs, sectors, or geographic areas.

i) Serious violations that need to be investigated and addressed by the EPA 's criminal enforcement program.

The Interim Guidance states, however, that where a State requests enforcement lead at a facility where EPA has discovered a violation, EPA will generally defer to the State request unless one of the instances in paragraph 2 above is present. The Interim Guidance directs that EPA share its view on what would constitute “timely and appropriate” response and provides for access to the Assistant Administrator if the region and state leadership disagree. This provision states as follows:

In a circumstance where senior leadership in the Region and State do not agree on a particular matter (such as, the appropriate enforcement response to a violation, whether there is a violation, or how federal law or EPA policy should be interpreted or implemented), the matter should be elevated to the OECA Assistant Administrator for a decision. This elevation is important to ensure a consistent national program among States and the EPA and a level playing field for regulated entities.

EPA plans to review the Interim Guidance in September 2018 to evaluate its successes and failures after soliciting state input.

COMMENTARY

The Interim Guidance is an important development. It signals a shift to a more collaborative approach with the States where EPA will share more information and engage the States more actively in setting joint priorities for enforcement within the State. The provision calling for discussion of the value of inspecting certain facilities, and providing for State leadership input into those decisions, reflects a change in tone and possibly substance. The Interim Guidance also clarifies the areas where EPA will exercise more independent judgment. While these are not new, the Interim Guidance should provide the States with a better means of asserting primacy, at least where the alleged violation does not fall in the enumerated list of exceptions.

The most significant change, however, is the Interim Guidance allowing a State to elevate a matter to the Assistant Administrator “where senior leadership in the Region and State do not agree.” This provides for recourse, often felt to be lacking, when regional officials disagree with a State’s interpretation and propose to take unilateral action. If this grant of access is implemented consistently, it could play an important role in improving the “cooperative” aspect of “cooperative federalism” in the NSR program by providing States access to senior EPA decisionmakers in cases of disagreement with regional leadership.