Other Regulators: Response to Environmental Compliance Violations at Federal Facilities

On this page

Other Regulators’ Responsibilities Under Delegated/Authorized Programs

Executive Order 12088, Federal Compliance with Pollution Control Standards, requires federal agencies to comply with federal environmental statutes and regulations, including the Clean Water Act, Clean Air Act, Solid Waste Disposal Act, Toxic Substances Control Act, and the other statutes listed in paragraph 1-102 of the Executive Order.
Similarly, Executive Order 12856, Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements, requires federal facilities to comply with the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act. The enforceable requirements of federal environmental statutes generally apply to the federal government in the same manner and to the same extent as private entities when the sovereign immunity of the United States is clearly and specifically waived in such statutes. This means states have the authority to enforce their state environmental laws to the same extent as against private parties. 
Each state has its own regulatory organization charged with developing and implementing environmental regulations. Most federal statutes allow states to set standards that are at least as stringent as federal requirements. When the EPA approves a program for the state, the state has primary responsibility and authority for that particular program. Some state governments have additional environmental laws.
States and tribes with delegated federal program authority may administer their own program in lieu of a federal program and have the primary responsibility to enforce the requirements of such programs. The extent of delegation or program authorization varies from program to program; however, under environmental statutes, regulators other than the EPA carry out a majority of the program administration and enforcement responsibilities. Generally, one condition of program delegation or authorization is that the state or tribe demonstrates that it has adequate enforcement authority to require full compliance with program requirements. 
EPA retains parallel authority to enforce federal requirements even when EPA delegates program authority to a state or tribal government. This means either EPA or a delegated or authorized state or tribe may bring an enforcement action against a federal facility. To avoid duplication of effort, when EPA delegates authority of a program or approves a state or tribal program, EPA generally will take enforcement action under the following circumstances: 

Other Regulators’ Enforcement Actions 

Two principal factors define the state and tribal enforcement authority at federal facilities:
  • The specific terms of a statute’s waiver of sovereign immunity, which are determined by:
    • the extent a federal facility is subject to the state and tribal government requirements, procedures, and penalties 
    • whether a federal agency may be sued in court 
  • The extent of state and tribal authority provided by the delegated or authorized federal program or the state or tribal legislation that authorizes enforcement
States and tribes may pursue civil judicial enforcement actions against federal agencies, provided such actions are not barred by sovereign immunity or limitations established in state or tribal legislation. States and tribes generally will use the same available enforcement tools against federal facilities in the same manner and to the same extent as against private facilities. 

EPA Involvement in Other Regulators’ Enforcement Actions 

EPA will provide technical assistance and support to federal agencies’ efforts to comply with environmental requirements, as provided by Executive Order (E.O.) 12088, Federal Compliance With Pollution Control Standards. Specifically, section 1-602 of E.O. 12088 establishes a duty for EPA to, “… make every effort to resolve conflicts regarding such violations between Executive agencies and, on request of any party, such conflicts between an Executive agency and a State, interstate, or a local agency.”
This responsibility may require EPA involvement in resolving noncompliance problems even when the state or tribal government has lead enforcement responsibility. If either the state, tribal government or federal facility in violation requests EPA involvement, EPA will assist in resolving the conflict as appropriate. These conflict resolution provisions of E.O. 12088 are in addition to, not in lieu of, state or tribal enforcement authority. This means a state or tribe may bring an enforcement action against a federal agency whether or not the agency or other party seeks EPA conflict resolution under E.O. 12088.