By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.

In yet another move providing relief to industry from federal enforcement, the EPA Office of Enforcement and Compliance Assurance (OECA) last week issued an Interim Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (January 22, 2018) (Guidance).

The Guidance, issued by OECA Assistant Administrator Susan Parker Bodine to Regional Administrators, suggests, with respect to enforcement cases,  a more collaborative partnership between the EPA and states with authorized environmental programs.  It applies to all EPA compliance assurance activities, and Bodine anticipates it will  “develop 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 Guidance sets out the expectation that EPA Regional Offices and their respective states will henceforth work together to achieve environmental compliance rather than EPA repeatedly auditing state level efforts (or from the standpoint of regulated industry, interfering with them).  The Guidance calls for the Region and State to discuss and share information including lists of planned inspections as well as an understanding concerning when a facility will be informed of an inspection in advance.  For any planned program audits, “EPA findings should be considered preliminary until the State has had an opportunity to review and respond.”  Except in emergency situations, EPA aims to allow states to address a deficiency prior to being subject to enforcement action.

Under the Guidance, EPA recognizes that States are given “primacy” in authorized programs.  “With respect to inspections and enforcement, EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs….”  EPA expects to “step in”,  in limited circumstances where actions require specialized EPA equipment and/or expertise, or where noncompliance issues need to be tackled at an interstate level.  Generally, “the Region should defer to the State except where the EPA believes that some EPA involvement is warranted.”

While the notion of cooperative federalism grants states leeway to decide how best to enforce environmental programs, allowing them to consider the unique circumstances and stakeholder interests in their state, the reality is the Guidance places a heavy burden on states to take on more responsibilities while dealing with their own budgetary constraints.  “Cooperative federalism” presumes states have adequate financial support to implement complex environmental requirements.

OECA expects to evaluate the success of the Guidance by requesting that Regions provide a progress report by September 28, 2018.  Unless the new approach is coupled with adequate financial support from the federal government to assist states in implementing complex and broad federal requirements, the collaborative partnership that the Guidance aims to achieve may be strained from inception.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.