District of Columbia — The Environmental Protection Agency issued an internal memo that announced a “no surprises” principle, as part of communication and joint planning between the EPA and state agencies, which effectively halts surprise EPA inspections on power and chemical plants. The principle was originally recommended by a joint workgroup involving the EPA and the Environmental CounciI of the States (ECOS), which were recommended in August 2018.
In an internal memo issued by Assistant Administrator For Enforcement And Compliance Assurance Susan Bodine, she considered the recommendations from the workgroup, public comments, and a 2018 memorandum from EPA Administrator Andrew Wheeler, which outlined four key principles related to federal enforcement of laws: General deference to the states in state-implemented programs, consistent with the EPA”s oversight responsibilities, effective communication between the EPA and the states, clear standards of review and predictable processes, and a clear process of evaluating issues.
According to Bodine, “A “no surprises” principle is the foundation of joint work planning and will minimize the misunderstandings that can be caused by the lack of regular, bilateral communication. With increased EPA cooperation and transparency, the EPA expects the states to respond in kind.” She went on to say that the goal of joint work planning is “the sharing of enforcement responsibilities with a clear agreement on EPA and state roles in individual inspections and formal enforcement actions.” She also mentions that agreements between states and the EPA are impossible if both sides are unaware of the actions of the other.
While the EPA will being halting surprise inspections, the memo says that, “EPA regions and the states should work together to identify which inspections the EPA or a state will perform. Inspection planning will avoid duplicate efforts, improve efficiency, reduce unnecessary burdens on the regulated community, and could provide EPA regions and states with more flexibility in setting and adjusting inspection targets.” The memo goes on to read that inspection planning will help the EPA meet its oversight responsibilities as required by law.
When reached for comment, an EPA spokesperson stated, “The Partnership Policy sets for a principle that there will be no surprises between EPA and state regulators in authorized programs. It does not articulate a “no surprises” policy with respect to the regulated community. It is common for both EPA and States to conduct many inspections without prior notice to the facility and the policy recognizes that this practice will continue. It simply says that there should be an understanding between EPA and the State regarding confidentiality and “whether or when” a facility would get advance notice of an inspection.”