When doing business in the United States, companies have to pay attention to not one, but two sets of environmental regulatory bodies. There is the overriding Federal Environmental Protection Agency (EPA), then there are the individual state agencies.
Which takes precedence?
The EPA sets the national standards for environmental protection. Because every state has a different set of natural and economic parameters, states typically adopt a law at least as stringent as the federal one.
And the state law takes precedence over the federal one.
That is, as long as the state can assume primary responsibility for implementing and enforcing the law.
The federal government, however, continues to have ultimate enforcement authority in all cases. The Agency has oversight responsibility over the states’ activities, and monitors state and tribal implementation of EPA approved programs.
While this sounds pretty straightforward, it can be confusing in practice. Particularly regarding inspection and implementation/enforcement issues.
In a recent document, EPA’s Office of Enforcement and Compliance Assurance (OECA) finalized a policy to help clarify the process “so that neither party’s actions subvert, contradict, or unnecessarily duplicate the actions of the other party.”
When dealing with facility inspections, the July 11, 2019 memorandum “Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work” mandates that:
EPA regions and states communicate as they develop their separate inspection priorities in order to “avoid duplicate or overlapping inspections that would lead them to inspect the same facility for the same regulatory requirements within the same twelve-month period.”
Multiple inspections by the EPA and the states may, however, be appropriate for complex sites where the inspections focus on different regulatory requirements, or where the EPA and a state agree that multiple inspections serve a valuable purpose.
The EPA supports a “no surprises principle.” In any investigation where the EPA has the lead, “EPA regions should share information requests and inspection reports for authorized programs with the state concurrently with sending them to the recipient.”
State vs. EPA Enforcement
In terms of implementation and enforcement, the EPA generally will defer to a state.
But because the EPA retains concurrent enforcement authority, there are specific situations where the EPA may choose to act. The following are examples taken directly from the EPA policy:
- Joint work planning or specific situations where the state requests that the EPA take the lead.
- Violations that arc 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 violations 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 does this mean for your business? At a minimum, a company must be aware of and ensure that it is complying with its state environmental parameters. While that is the best place to start, one should also be aware of and in compliance with the Federal laws, as the EPA has ultimate jurisdiction.