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EPA-DEC Enforcement Agreement

When Commissioner Williams took office, he, like William Ruckleshaus at EPA, immediately made environmental enforcement the top priority of his administration. In addition to establishing goals to ensure DEC would meet statutory mandates established by the Congress and the New York State Legislature, Commissioner Williams administratively began the overhaul of the enforcement structure of DEC so as to provide a stronger and more efficient program. Further, he directed the addition of personnel to enforcement activities. These agreements represent a further step for New York in Commissioner Williams' policy to make firm and fair enforcement a hallmark of his tenure.

On April 4, 1984, EPA Administrator William Ruckleshaus issued policies governing EPA delegation of environmental programs to State and local governments and EPA's oversight of those delegated programs. As a follow-up to the Administrator's policies on delegation and oversight, on June 26, 1984, EPA Deputy Administrator Alvin Alm transmitted the "Policy Framework for State/EPA Enforcement Agreements".

New York State entered into discussions of these agreements enthusiastically because of DEC's commitment to strong environmental enforcement. Coordinating policies and procedures with the federal government was viewed as an excellent opportunity for DEC to further its enforcement efforts.

EPA and DEC are now proud to inaugurate this new structure for enforcement. The enforcement agreements executed today between DEC and EPA are among the nation's first such agreements between state and federal governments.

These agreements provide a firm foundation for the enhancement of environmental enforcement. In addition, they establish the framework for the constant review of state and federal efforts in this area, thereby guaranteeing a consistently growing and improving measure of public health and environmental protection.

Scope and Organization

This Agreement covers the federal environmental programs authorized/delegated or to be authorized/delegated under the Clean Water Act, Clean Air Act, RCRA and FIFRA. The agreement also covers CERCLA.

Separate detailed agreements for each of the media have been developed for signature by the EPA and DEC legal and program officials who have been delegated responsibility for the implementation of these programs; their agreements are included as Appendices I-V.

The Policy Framework identifies five primary components defining the State/EPA enforcement relationship:

  1. Oversight criteria and measures for assessing good compliance and enforcement program performance;
  2. Oversight procedures and protocols;
  3. Criteria for direct EPA enforcement;
  4. Procedures for advance notification and consultation; and
  5. State reporting requirements.

A few generic issues considered applicable to all of the environmental programs are discussed below.

Generic Issues

Ensuring Adequate Legal Support for DEC's Compliance/Enforcement Effort - DEC develops its program grant work plans on a state fiscal year cycle (April 1 - March 31). Until this Agreement, separate work plans were developed by the program divisions for each medium; these work plans, however, did not generally include commitments for formal enforcement actions (e.g., administrative orders and referrals to the Attorney General's Office). Separate work plans are, however, developed by the Office of General Counsel; these work plans do include projections for formal enforcement actions.

DEC's program work plans for air, water, RCRA and pesticides have all been approved; DEC's work plans for the Office of General Counsel for state fiscal year 1984-1985 have been conditionally approved. The Office of General Counsel is submitting proposed final revised work plans for incorporation in this agreement as Appendix VI. These work plans contemplate that in FY 1985-86 there will be a need for additional enforcement attorneys in each DEC Regional Office and the Division of Environmental Enforcement. The projected enforcement workload is estimated to exceed the capacity of current staffing in the DEC Office of General Counsel.

As detailed in the five separate media agreements included as Appendices I-V, EPA and DEC have agreed on criteria for what constitutes timely and appropriate enforcement action. Consistent with the criteria, the Office of General Counsel has prepared its proposed final work plans so that they include:

  • definitions of state equivalent activities for each of the indicators of formal enforcement activity included an EPA's accountability systems;
  • projections of anticipated formal enforcement outputs for each of the indicators; and
  • projections of attorney resources, by medium, to support the formal enforcement activity.

DEC attorneys are located in the central office, nine regional offices and three Division of Environmental Enforcement field units. Much of the formal enforcement activity which is projected in the Office of General Counsel's work plans, therefore, will be produced by attorneys located outside a central headquarters. As a result, DEC recognizes the need for an effective management system to ensure that the outputs set forth in the work plans are in fact delivered and reported.

To accomplish this goal, DEC has applied to EPA for funds to support a discretionary grant award which will allow the establishment of such a system. In response to DEC's request, EPA is now in the process of awarding DEC $83,946 in discretionary funds to support the purchase of computer equipment and to support the first-year staffing costs of the "Environmental Enforcement Data Unit". This unit will provide the DEC Office of General Counsel with the ability to track formal enforcement activity which occurs in both the central and regional offices, to take corrective action as necessary, to report on the activity to EPA, and to collect time and activity data which will document how DEC attorney resources are used.

EPA and DEC both recognize that based on the first year of experience, the reports generated by the Environmental Enforcement Data Unit may document the need to enhance or to redeploy attorney resources on order to more effectively support the individual media programs.

In order to better convey an assessment of the total media programs to EPA, DEC has agreed that, in the future, it will concurrently submit its program division and Office of General Counsel work plans for the following state fiscal year by February 1.

Federal Facilities Compliance - Federal Executive Order 12088 requires, with the exception of national interest waivers, that federal facilities comply with all federal, state and local pollution control laws. DEC has long advocated such a policy.

EPA is responsible for acting as the liaison between federal agencies and state and local governments to ensure that federal facilities act in good faith to resolve compliance issues in a timely manner. Since compliance problems arise in many environmental control areas (e.g., air, water, RCRA), each EPA regional Office has designated a Federal Facilities Compliance Coordinator who channels incoming noncompliance notifications to the appropriate EPA programs and tracks efforts to achieve compliance. This coordinator is authorized to intervene when necessary to assist in negotiating compliance agreements and to use established compliance resolution procedures to elevate issues to higher levels both within EPA and within the headquarters offices of other federal agencies.

National EPA guidance recommends strongly that each state designate a counterpart to the Federal Facilities Compliance Coordinator as part of our joint efforts to improve compliance at these installations. In response to the national guidance, DEC designates its Director of the Division of Environmental Enforcement as its representative on federal facility compliance issues. The Director of the Division of Environmental Enforcement will act as DEC liaison with EPA on all matters regarding the identification and resolution of compliance issues at federal installations located in New York State.

Public Information - Both EPA and DEC are committed to publicly account for their compliance and enforcement programs through a variety of methods. Public information releases are on of the basic methods of conveying reports concerning enforcement activity for all media, and may enhance the deterrence potential of enforcement actions.

EPA and DEC agree to review opportunities for joint releases on enforcement actions and public accounting of both state and federal accomplishments in compliance and enforcement. To the extent possible, public information reports generated by one agency will acknowledge and give appropriate credit to relevant actions and accomplishments in enforcement/compliance by the other agency.

Rescission and Modifications

This Agreement shall become effective upon signature of both parties and shall remain in effect until updated by both parties, or rescinded. It is anticipated that this Agreement will be a working document and, as such, will require at least annual review and revision.

The individual media agreements included as Appendices I-V may be modified by concurrence of the DEC and EPA program and legal officials who have been delegated responsibility for the program without the need for Regional Administrator / Commissioner approval. Documents subject to revision, which are attached to the media agreements, may be updated as appropriate, according to established procedures.

New York State Department of Environmental Conservation

Henry G. Williams
Commissioner

Dated: October 1, 1984

United States Environmental Protection Agency, Region II

Christopher Daggett
Regional Administrator

Dated: October 1, 1984

Appendices*

  1. DEC/EPA Enforcement Agreement for Air
  2. DEC/EPA Enforcement Agreement for Water
  3. DEC/EPA Enforcement Agreement for RCRA
  4. DEC/EPA Enforcement Agreement for FIFRA
  5. DEC/EPA Enforcement Agreement for CERCLA
  6. Office of General Counsel Work Plans for State Fiscal Year 1984-1985 - currently under review by EPA Region II

* Executed copies of all appendices are either attached, or will be available by October 15.

NOTE: Enforcement Agreements between EPA Region II and the NYSDEC for FIFRA and CERCLA were never enacted.

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