UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG78
Date Signed: March 3, 1995
MEMORANDUM
SUBJECT: Processing Requests for Use of Enforcement Discretion
FROM: Steven A. Herman
Assistant Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
In light of the reorganization and consolidation of the Agency's enforcement and
compliance assurance resources activities at Headquarters, I believe that it is useful to recirculate
the attached memorandum regarding "no action" assurances1 as a reminder of both this policy
and the procedure for handling such requests. The Agency has long adhered to a policy against
giving definitive assurances outside the context of a formal enforcement proceeding that the
government will not proceed with an enforcement response for a specific individual violation of
an environmental protection statute, regulation, or legal requirement. This policy, a necessary
and critically important element of the wise exercise of the Agency's enforcement discretion,
and which has been a consistent feature of the enforcement program, was formalized in 1984
following Agency-wide review and comment. Please note that OECA is reviewing the
applicability of this policy to the CERCLA enforcement program, and will issue additional
guidance on this subject.
A "no action" assurance includes, but is not limited to: specific or general requests for
the Agency to exercise its enforcement discretion in a particular manner or in a given set of
circumstances (i.e., that it will or will not take an enforcement action); the development of
policies or other statements purporting to bind the Agency and which relate to or would affect
the Agency's enforcement of the Federal environmental laws and regulation; and other similar
requests for forbearance or action involving enforcement-related activities. The procedure
established by the Policy requires that any such written or oral assurances have the advance
written concurrence of the Assistant Administrator for Enforcement and Compliance Assurance.
The 1984 reaffirmation of this policy articulated well the dangers of providing "no
action" assurances. Such assurances erode the credibility of the enforcement program by
creating real or perceived inequities in the Agency's treatment of the regulated community.
Given limited Agency resources, this credibility is a vital incentive for the regulated community
to comply with existing requirements. In addition, a commitment not to enforce a legal
1 Courtney M. Price, Assistant Administrator for Enforcement and Compliance
Monitoring, Policy Against "No Action" Assurances (Nov. 16, 1984) (copy attached)
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WSG78
requirement may severely hamper later, necessary enforcement efforts to protect public health
and the environment, regardless of whether the action is against the recipient of the assurances or
against others who claim to be similarly situated.
Moreover, these principals are their most compelling in the context of rulemakings: good
public policy counsels that blanket statements of enforcement discretion are not always a
particularly appropriate alternative to the public notice-and-comment rulemaking process.
Where the Agency determines that it is appropriate to alter or modify it's approach to specific,
well-defined circumstances, in my view we must consider carefully whether the process
(especially where the underlying requirement was established by rule under the Administrative
Procedures Act), or through piecemeal expressions of our enforcement discretion.
We have recognized two general situations in which a no action assurance may be
appropriate: where it is expressly provided for by an applicable statute, and in extremely
unusual circumstances where an assurance is clearly necessary to serve the public interest and
which no other mechanism can address adequately. In light of the profound policy implications
of the granting of no action assurances, the 1984 Policy requires the advance concurrence of the
Assistant Administrator for this office. Over the years, this approach has resulted in the
reasonably consistent and appropriate exercise of EPA's enforcement discretion, and in a manner
which both preserves the integrity of the Agency and meets the legitimate needs served by a
mitigated enforcement response.
There may be situations where the general prohibition on no action assurances should not
apply under CERCLA (or the Underground Storage Tanks or RCRA corrective action
programs). For example, at many Superfund sites there is no violation of law. OECA is
evaluating the applicability of no action assurances under CERCLA and RCRA and will issue
additional guidance on the subject.
Lastly, an element of the 1984 Policy which I want to highlight is that it does not and
should not prelude the Agency from discussing fully and completely the merits of a particular
action, policy, or other request to exercise the Agency's enforcement discretion in a particular
manner. I welcome a free and frank exchange of ideas on how to best respond to violations,
mindful of the Agency's overarching goals, statutory directives, and enforcement and
compliance priorities. I do, however, want to ensure that all such requests are handled in a
consistent and coordinated manner.
Attachment
cc: OECA Office Directors
Regional Counsels
Regional Program Directors
Note: The attachment referred to in this guidance is WSG 24 of this manual.
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