UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG23 Date Signed: November 16, 1984 MEMORANDUM SUBJECT: Policy Against "No Action" Assurances FROM: Courtney M. Price Assistant Administrator for Enforcement and Compliance Monitoring TO: Assistant Administrators Regional Administrators General Counsel Inspector General This memorandum reaffirms EPA policy against giving definitive assurances (written or oral) outside the context of a formal enforcement proceeding that EPA will not proceed with an enforcement response for a specific individual violation of an environmental protection statute, regulation, or other legal requirement. "No Action" promises may erode the credibility of EPA's enforcement program by creating real or perceived inequities in the Agency's treatment of the regulated community. This credibility is vital as a continuing incentive for regulated parties to comply with environmental protection requirements. In addition, any commitment not to enforce a legal requirement against a particular regulated party may severely hamper later enforcement efforts against that party, who may claim good-faith reliance on that assurance, or against other parties who claim to be similarly situated. This policy against definitive no action promises to parties outside the Agency applies in all contests, including assurances requested: • both prior to and after a violation has been committed; • on the basis that a State or local government is responding to the violation; • on the basis that revisions to the underlying legal requirement are being considered; • on the basis that the Agency has determined that the party is not liable or has a valid defense; • on the basis that the violation already has been corrected (or that a party has promised that it will correct the violation); or 1 ------- WSG23 • on the basis that the violation is not of sufficient priority to merit Agency action. The Agency particularly must avoid no action promises relating either to violations of judicial orders, for which a court has independent enforcement authority, or to potential criminal violations, for which prosecutorial discretion rests with the United States Attorney General. As a general rule, exceptions to this policy are warranted only where expressly provided by applicable statute or regulation (e.g., certain upset or bypass situations) • in extremely unusual cases in which no action assurance is clearly necessary to serve the public interest (e.g., to allow action to avoid extreme risks to public health or safety, orto obtain important information for research purposes) and which no other mechanism can address adequately. Of course, any exceptions which EPA grants must be in areas in which EPA has discretion not to act under applicable law. This policy in no way is intended to constrain the way in which EPA discusses and coordinates enforcement plans with state or local enforcement authorities consistent with normal working relationships. To the extent that a statement of EPA's enforcement intent is necessary to help support or conclude and effective state enforcement effort, EPA can employ language such as the following: "EPA encourages State action to resolve violations of the Act and supports the actions which (State) is taking to address the violations at issue. To the extent that the State action does not satisfactorily resolve the violations, EPA may pursue its own enforcement action." ------- |