On January 22, 2018, U.S. EPA’s Assistant Administrator issued a memorandum to all U.S. EPA Regional Administrators that contained interim guidance on enforcement of environmental violations by State EPAs and the federal EPA. The interim guidance is a significant shift away from the traditional federal/state balance on enforcement giving much greater leeway to the States.
U.S. EPA has always been active in enforcement in states, even states that have delegated programs. EPA traditionally has set its own enforcement priorities, performed its own inspections and proceeded with enforcement when it finds violations. While it may inform the states of its activities, it generally would not defer to the states once it initiates enforcement.
Often the federal EPA can be more stringent than the states in seeking corrective measures and/or civil penalties. States are viewed as being more reasonable and open to considering practical compliance issues and costs of compliance.
The interim guidance signifies a shift away from this traditional approach. Specifically, the memorandum makes the following two major statements:
- 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. except in specific situations.
- Where the EPA identifies violations at a facility, but the State requests that it take the lead for
remedying the violations, the Region should defer to the State except where the EPA believes that some EPA involvement is warranted (as described in paragraph 2, above)
These statements are signify a pretty dramatic shift towards the states in controlling enforcement process within its borders. In particular, the idea that if the EPA identifies violations and informs the states, the state can request to take the lead. In this instance, the guidance makes clear the EPA should defer to the states except in special circumstances that are outlined in the memorandum.
The memorandum is just another indication that the Trump Administration wants to shift primary regulatory and enforcement authority to the states.