In our 2018 outlook, we told you about the trend towards cooperative federalism—EPA’s plan to “rebalance the power between Washington and the states to create tangible environmental results for the American people.” Early in 2018, EPA has already taken steps towards putting cooperative federalism into practice.

At the end of January, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA) issued Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States. The interim guidance focuses on a number of topics to increase collaboration between EPA and States authorize to implement federal environmental programs.

The interim guidance makes it clear that EPA will generally defer to States to implement delegated federal programs, except in specific situations. Examples of these specific situations include:

  • Emergency situations, or situations where there is a significant risk to public health and the environment;
  • Significant noncompliance that has not been addressed by the State;
  • Actions to address widespread noncompliance in a sector or program, such as EPA’s National Enforcement Initiatives;
  • Responses to State requests for assistance; and
  • Serious violations that need to be investigated by EPA’s criminal enforcement program.

According to the interim guidance, when EPA identifies violations at a facility, but the State wants to take the lead on enforcement, EPA should defer to the state unless its involvement is specifically warranted.

The interim guidance also encourages periodic meetings between EPA and States to share information regarding compliance and enforcement priorities and how to share resources efficiently. For example, the guidance suggests that EPA and States could share lists of facilities planned to be inspected over a particular time frame and discuss whether those inspections would be conducted by EPA or the State. With regard to specific enforcement matters, EPA and the States should communicate to ensure that the State has a clear understanding of what EPA considers to be a timely and appropriate response. If senior leadership at EPA and the State disagree on how a matter should be handled, it should be elevated to the OECA Assistant Administrator for a decision.

EPA plans to update the interim guidance as necessary in 2019, based on recommendations of a work group aimed at improving state and federal collaboration in compliance assurance.