Continuing its focus on cooperative federalism under the current Administration, EPA issued its final policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work on July 11, 2019. EPA’s guidance memorandum follows review of comments from the draft policy published in May 2019 and replaces the January 2018 interim guidance on enhancing partnerships. EPA’s final policy expands and clarifies earlier direction on communication planning between EPA and its state counterparts with authorized or delegated programs under various federal statutes such as the federal Clean Air Act, Clean Water Act, and RCRA.
The final policy affirms that where a state has an authorized program, EPA will defer to the state as the primary implementer of inspections and enforcement; noting however, that EPA maintains concurrent authority. The final policy provides more detail on instances in which EPA involvement may be warranted, specifically:
- State requests EPA take the lead;
- Violations are within a National Compliance Initiative;
- Emergencies or situations with substantial risk;
- State lack of equipment, resources or expertise;
- Multi-state or multi-jurisdictional interests;
- Significant violations not timely or appropriately addressed by the state;
- Violations warranting EPA criminal enforcement;
- State enforcement review inspections; and
- Enforcement at federal or state owned or operated facilities.
As outlined in the final policy, EPA expects day-to-day discussions, along with planned meetings following a jointly developed agenda. The policy directs EPA and its counterparts to focus on:
- Strategic Planning: broader focus on emerging issues, local needs and relevant priorities and how to best coordinate efforts;
- Joint Inspection Planning: coordination to avoid duplicative inspections, share inspection rationale and plans and allow for both EPA and state involvement where appropriate; and
- Enforcement Planning: best practices for coordination of EPA, state or joint enforcement and expectations on timeliness and communication.
Finally, the final policy sets out a process for elevation of issues.
EPA’s final policy follows nearly 18 months of coordination between EPA and its state counterparts under the interim guidance. It maintains the primary directives set forth in the interim guidance, which likely means little change for the regulated community from the current practice. While the final policy provides more specific directions and examples, variability across state programs and EPA regions will still continue to influence its implementation and the effect on the regulated community.
This post was drafted by Drew Brought and Jessica Merrigan, attorneys in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.
