11/16/84

Policy Against "No Action" Assurances

                              NOV 16 1984


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 contexts, 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;


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     .    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
     .    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 a 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, or to obtain important
          information for research purposes ) and which no other
          mechanism can address adequately.
Of course, any exceptions which EPA grants must be in an area
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 an
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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     I am requesting that any definitive written or oral no
action commitment receive the advance concurrence of my office.
This was a difficult decision to reach in light of the valid
concerns raised in comments on this policy statement;
nevertheless, we concluded that Headquarters concurrence is
important because the precedential implications of providing no
action commitments can extend beyond a single Region.  We will
attempt to consult with the relevant program office and respond
to any formal request for concurrence within 10 working days
from the date we receive the request.  Naturally, emergency
situations can be handled orally on an expedited basis.
     All instances in which an EPA official gives a no action
promise must be documented in the appropriate case file.  The
documentation must include an explanation  of the reasons
justifying the no action assurance.
     Finally, this policy against no action assurances does not
preclude EPA from fully discussing internally the prosecutorial
merit of individual cases or from exercising the discretion it
has under applicable law to decide when and how to respond or
not respond to a given violation, based on the Agency's normal
enforcement priorities.