What happens when the Federal Government works to cut red tape and regulations? Efficiency. In the past few years, regulatory bodies across the United States have found that despite capped spending growth and fewer regulations, they have begun to work faster and more efficiently, with some leveraging more technology or delegating to the states. One such example of this exists in a recent memorandum released by the Federal EPA which will increase the efficiency by which the EPA and states plan inspections, enforcement, and more.
The memorandum, Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work, was written with the intent of increasing collaboration between the Federal EPA and states by setting forth guidance on planning, delegation, and accountability for the states’ enforcement.
Fundamentals of the Recent EPA Memorandum
Broken into three parts, the memorandum is built on the following:
- Expectations, Best Practices and Periodic Joint Work Planning: The first part of this policy articulates expectations and best practices for periodic joint work planning and effective communication between EPA regions and states to further the goal of shared accountability for the consistent enforcement of the law.
- Role of the States and Federal EPA: The second part articulates the primary role of the states in implementing authorized programs, while acknowledging the EPA’s responsibilities to the President, the Congress, and the public to take direct action when a state lacks the economic or technical capability or the will to take timely and appropriate action. The second part also describes those circumstances that may warrant direct federal action.
- Circumstances for Elevation: The third part sets out the process by which issues that may arise under this planning and communication policy will be elevated.
Joint Strategic, Inspection and Enforcement Planning
Cooperative, periodic, and early joint planning and regular communication between federal and state enforcement authorities are essential to promote enhanced and shared accountability. The goal of this is to put more power in the states and create awareness between the two. Many complaints over the years took place because ‘one hand didn’t know what the other was doing,’ leading to either duplicate actions or no actions at all.
For many in the manufacturing community, this put unnecessary burdens and strain on processes, as leadership would need to deal with a Federal EPA employee, only to go back and deal with a state one weeks or months later. In the guidance, the EPA documents areas where this planning will be implemented:
Joint planning should include a strategic element that goes beyond planning for individual inspections and enforcement actions. Strategic planning should include a discussion of:
- the environmental compliance problems and needs in the state;
- national, regional, and state compliance assurance priorities;
- emerging issues; and
- how the combined resources of the EPA and the state could be used to address these needs.
Strategic planning should also include a discussion of how the EPA and the state may mutually build their respective capabilities to conduct inspections and develop and prosecute cases.
Inspection planning will avoid duplicate efforts, improve efficiency, and reduce unnecessary burdens on the regulated community and could also provide EPA regions and states with more flexibility in setting and adjusting inspection targets and compliance monitoring strategies.
EPA regions and the states should avoid duplicative or overlapping inspections that would lead them to inspect the same facility for the same regulatory requirements within a year.
Inspection planning is designed around efficiency, built on shared understanding, and will ultimately give states more information about how the federal EPA will operate.
The EPA should communicate with states when the Agency believes that an enforcement action is warranted in a state. The communication should include a review of the EPA’s observations and findings from inspections and other case development techniques.
The communication should include a discussion about whether the enforcement action should be federal, state, or joint and the type of action to be taken. Additionally, if the EPA is taking an enforcement action in a state, the EPA should notify the state before notifying the facility.
Naturally, this will help increase the efficiency by which enforcement is completed, with states taking on most of the actions except in events where facilities are complex, violations are considered interstate, events are part of a national compliance initiative, or when criminal cation may need to be taken or others.
Elevation of an Issue
In addition to this, there are times when states don’t have the resources available or when the Federal EPA needs to get involved. This document provides many situations for this elevation, but often relies on the states for action. As noted and emphasized by environmental law firm Squire, Patton, Boggs, the “EPA will generally defer to a state as the primary implementer of inspections and enforcement in authorized programs.”
However, there are nine scenarios in which the US EPA may take over:
- Joint work planning or specific situations where the state requests that the EPA take the lead.
- Violations that are part of a National Compliance Initiative.
- Emergency situations or situations where there is substantial risk to human health or the environment.
- Situations where a state lacks adequate equipment, resources, or expertise.
- Situations involving multi-state or multi-jurisdictional interests or interstate impacts.
- Significant noncompliance that the state has not timely or appropriately addressed.
- Serious violations for which the EPA’s criminal enforcement authorities may be needed.
- State enforcement program review inspections
- Situations that involve enforcement at federal and state owned or operated facilities.
What This All Means: More Efficiency
While this will provide many benefits, namely the reduction in duplicative enforcement or no enforcement at all because a state or the EPA has failed to tell the other what it plans to do or not do, manufacturers need to be mindful of the increased efficiency and potential likelihood they will face an increased number of inspections.
With communication prioritized, you may not be subject to the annoyance that might come when you get contacted by a state and a federal agency in the same year, but you may end up subject to more frequent inspections.
If you’ve been flying under the radar for years and quietly avoiding inspections, you might move up the list a bit faster in the coming years. Knowing this, now is the time to take note of your current air pollution control initiatives and strategies.
At The CMM Group, we specialize in the design and installation of air pollution control solutions for manufacturers across the United States, and know just how important it is to become and remain compliant—especially in the face of increased inspections and increased scrutiny. If your current air pollution control product is aging or could use some maintenance, you may not be realizing the efficiency or effectiveness you once saw in your efforts.
In this, it may be time to look at your next steps for VOC abatement solutions that will help you remain compliant and do so at a lower cost than your current product. Get to know more about your role by downloading our free guide to VOC abatement, learn more about the work we do, and contact us for more details.
Additionally, learn more about the current regulatory landscape below: