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Environment & Energy Report

EPA Clarifies Its Enforcement Relationship With States

July 12, 2019, 12:05 PM

States will get a strong voice in environmental inspections and enforcement actions under new guidance the EPA released to its regional offices July 11.

Part of the memo calls on the Environmental Protection Agency and state officials to work together when planning inspections as a way of improving efficiency and reducing unnecessary burdens on regulated entities.

The memo also directs EPA regions and states to limit “duplicative or overlapping inspections” that would cause them to separately inspect the same facility within a 12-month period.

The document further calls on EPA regional offices to give states advance notice of inspections, “especially because inspection plans tend to be dynamic and it might have been some time since the planned inspection was discussed.”

An EPA spokesperson said the new policy “provides a workable road map for effective partnerships between the EPA and states in addressing the important environmental work that we collectively need to address,” and was written using input from the states and the public in response to a May draft version.

Best Practices

Other parts of the guidance describe best communication practices between the EPA and the states and clarify which agency should take the lead role in different situations.

“This policy will help the states and EPA make the best use of their respective enforcement resources and avoid duplication of effort in inspections and enforcement activity,” said Donald Welsh, executive director of the Environmental Council of the States.

ECOS, a group of state environmental agencies, has been working with the EPA to develop better enforcement procedures and improve cooperation.

The guidance “is based on the principle of cooperative federalism and it builds on best practices that many states and EPA Regions have developed in joint enforcement planning,” Welsh said. “It will make regular communication and coordination on enforcement the standard of practice between the states and EPA.”

Some Concern

Most parts of the policy are consistent with the agency’s longstanding practice, said Bruce Buckheit, former director of EPA’s air enforcement division.

But Buckheit also said he was worried about language in the policy stating EPA’s responsibility to conduct a “limited” number of inspections to verify how well state enforcement programs are working.

Patrice Simms, director of litigation at the environmental group Earthjustice, called the guidance “an effort to mainstream the agency’s practice of effectively giving states a veto right over agency enforcement actions.”

In Simms’ view, the memo “tells EPA’s enforcement office and regional offices to share all of their enforcement plans with the states, and then it pulls the rug from under the front-line agency enforcement officials by effectively giving states an absolute right to take any disagreement over enforcement right to Trump’s political appointees.”

The EPA spokesperson said the new policy won’t result in weaker enforcement.

“Our goal is to achieve compliance with the environmental laws that were enacted to protect public health and the environment,” the spokesperson said. “Compliance can be achieved through enforcement and also through other means, including compliance assistance.”

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Susan Bruninga at sbruninga@bloombergenvironment.com