In a recent policy document (July 11, 2019), the United States Environmental Protection Agency (EPA) provided clarification with respect to their approach to environmental protection and compliance.  This approach is a significant departure from how the Agency (and others) has historically viewed the role of the EPA.

EPA’s Effective Partnerships Memo

The new EPA policy document, “Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work,” is the latest effort to clarify the role of the EPA and the role of the authorized states.  This document emphasizes again the idea of cooperative federalism, which defers primary enforcement activity to the states.

The policy document was sent from Susan Parker Bodine to the Regional Administrators.  In the document, Ms. Bodine emphasizes cooperation, “early joint planning,” and regular communication between EPA regions and the states. As stated in a recent legal blog by Beveridge & Diamond, “The policy emphasizes the importance of joint planning and communication between EPA and the States, espousing a ‘no surprises’ principle as foundational.”

This document emphasizes again the idea of cooperative federalism, which defers primary enforcement activity to the states.

Circumstances When the EPA Will Take the Enforcement Lead

The EPA will take the lead in certain circumstances, such as when the state requests the EPA lead, emergency situations, when criminal enforcement is required, and when violations involve jurisdictions from multiple states.  The EPA will also take the lead when the direct enforcement is part of the National Compliance Initiatives.

The National Compliance Initiatives (from June 2019) include the following:

  1. Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants from Stationary Sources.
  2. Reducing Hazardous Air Emissions from Hazardous Waste Facilities.
  3. Stopping Aftermarket Defeat Devices for Vehicles and Engines.
  4. Reducing Significant Noncompliance with National Pollutant Discharge Elimination System Permits.
  5. Reducing Noncompliance with Drinking Water Standards at Community Water Systems.
  6. Reducing Risks of Accidental Releases at Industrial and Chemical Facilities.

Environmental Consultants Working for Regulators?

An important aside:  Many states subcontract with environmental consultants to carry out the state-level environmental inspections and investigations.  Perhaps this will increase with the emphasis on state-led programs.  One of our founding principles at Dragun is that we will not work for the regulators (state or federal).  It is our view that working for both the regulators and the regulated could lead to conflicts.

As the EPA’s “Effective Partnerships” memo is implemented, regulated companies can expect to increasingly deal with state environmental agencies on civil compliance/enforcement programs and less frequently with the EPA.

Based on our observations and those of others in the industry, states are conducting more inspections over the past year or so.  In addition, the trend seems to lead more directly to violations and less cooperative assistance.

How do I Prepare for an Environmental Regulatory Inspection?

What should you do to make sure you are as prepared as possible for a compliance inspection by the regulators?  We have some resources that may be helpful to you.

Additionally, we encourage our clients to do periodic environmental compliance assessments.  Depending on the specifics, you may want to do this assessment under attorney-client privilege and/or utilize state or federal audit privilege programs.

Put Dragun on Your Side

As we stated, we do not work for the regulators, so when you ask Dragun to help you, you can rest assured there will not be a conflict of interest, now or later, if enforcement or litigation results.  If you would like to have a discussion about environmental compliance, you can contact me or our senior environmental compliance specialist, Matthew Schroeder, M.S., P.E.  You can reach either Matt or me at 248-932-0228.

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