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
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                                                                                  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."

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