EPA has set out new guidelines for its staff interacting with polluters, championing quick compliance for violators of the law before turning to tough enforcement.
Craig Pritzlaff, acting assistant administrator of EPA’s enforcement office, said the memo “reinforces a ‘compliance first’ orientation as the guiding principle” for the program, including for all civil enforcement and compliance initiatives at the agency. The memo, obtained by POLITICO’s E&E News, also tells employees to seek approval from top leadership, pulls back guidance from the previous administration and bars mitigation efforts, known as supplemental environmental projects, or SEPs.
“This policy reinforces prioritizing environmental compliance across all OECA civil judicial and administrative enforcement activities in the most efficient, most economical, and swiftest means possible,” Pritzlaff said in the memo, dated Friday and sent to senior enforcement officials and attorneys across the country.
Former EPA officials said the agency already emphasized securing compliance first before digging further into its enforcement toolkit to crack down on those who breached environmental laws. They warned the guidance could stall staff from using measures to stop repeat offenders and stagnate enforcement action at EPA.
“When an entity fails to comply with EPA’s regulations, the agency needs to do more than simply give the violator another chance to comply,” said Larry Starfield, who served more than 30 years at EPA, including as the principal deputy assistant administrator in its enforcement office.
Starfield added when a facility repeatedly emits too much pollution, “The government can either say ‘try harder this time,’ or it can require objectively reliable measures” such as more air quality monitoring and data sharing with the public.
In response to questions for this story, EPA spokesperson Brigit Hirsch said in a statement the whole point of the Friday memo is “to speed up enforcement and compliance,” adding it takes far too long to bring a facility in line with the law.
“The purpose of a compliance first orientation is to ensure that enforcement actions are tailored to achieve compliance faster and that enforcement in general is conducted consistently across EPA,” Hirsch said.
Memo ‘messing my day up’
Gary Jonesi, who served almost 40 years at EPA, including as an enforcement official, disagrees with that assessment.
“This memo makes it harder for EPA staff to enforce because it removes several incentives that violators have to settle cases and erects procedural barriers to rapid enforcement,” said Jonesi, now executive director of CREEDemocracy.
The new guidance is already having an impact on EPA’s enforcement work, according to agency staffers granted anonymity because they fear retaliation.
One EPA employee said they have been told to pause settlement negotiations. “It’s messing my day up,” they said about the memo.
A second staffer said “compliance first” sounds like “compliance only,” adding “that policy leans heavily towards the regulated community.”
A third employee pointed to one part of the memo that they called “particularly egregious.” That section said when those regulated by EPA have questions about how the agency has applied the law, those questions “must be elevated immediately” and decisions on how to proceed should be made at “a national level.”
“Inspectors and enforcement staff, including attorneys, are not responsible for resolving an ambiguity or concern,” the memo said.
“A regulated entity always raises concerns about EPA’s application of a statute. But those concerns are often recurring across cases and dispensed with easily,” the employee said. “This says we don’t dispense with them. We elevate them. This will stop all meaningful cases in their tracks.”
Hirsch with EPA said enforcement’s purpose is “to achieve compliance quickly” and remediate any releases required under law. If inspections show noncompliance repeatedly, “then additional enforcement would be applicable,” she said.
“It is unfortunate that a small number of employees have seen fit to publicly misrepresent the memorandum without even attempting to discuss their concerns and reach a common understanding with their colleagues,” the agency spokesperson said.
Laura Thoms, who served nearly 20 years at the Department of Justice, including earlier this year as assistant section chief for its Environmental Enforcement Section, found the memo’s directive “alarming” that enforcement must stop if a regulated entity raises concerns.
“This places the ability to delay enforcement directly in the hands of polluters,” said Thoms, now director of enforcement at Earthjustice, noting their questions will swamp EPA as the agency investigates thousands of facilities each year.
“Delaying enforcement means that more pollution is spewed into the air, more waste is dumped into rivers, and more communities are put at risk,” she said.
Biden-era guidance gone, SEPs no more
Pritzlaff’s memo is similar to other guidance issued by the Trump EPA. Jeffrey Hall, then EPA’s acting enforcement head, directed staff in a March 12 memo to ease enforcement on energy facilities and no longer consider environmental justice.
President Donald Trump nominated Hall to lead EPA’s enforcement program, but he has not been confirmed yet. Pritzlaff, formerly director of the Texas Commission on Environmental Quality’s enforcement program, joined the agency in August as principal deputy assistant administrator in that office.
Pritzlaff, in his memo, also voids guidance issued during the Biden administration for advocating “expansive remedies,” such as advanced monitoring, third-party audits and electronic reporting. “The 2021 memorandum is overly broad in its approach and therefore is rescinded,” he said.
Injunctive relief outside of the law and regulation may be appropriate in “limited, case-specific circumstances” but should be only by approved by the head of EPA’s enforcement office.
Starfield signed that 2021 memo. He said the new memo’s guidance will weaken enforcement because bringing violators into compliance is not enough.
“Allowing the use of the enforcement tools in the 2021 memo only as a last resort in emergency or other extreme situations will hamstring efforts to prevent repeat violations and will weaken EPA’s ability to protect human health,” Starfield said.
In addition, Pritzlaff’s memo targets the agency’s use of supplemental environmental projects for settlements. Polluters agree to fund those projects to improve the environment, which could be an air quality sensor or even a hiking trail.
“Until additional guidance on the use of SEPs in settlement agreements is issued, no settlement shall include a SEP,” the memo said.
Republican lawmakers have criticized the projects as government handouts, which the Biden administration restored at EPA after they were prohibited during Trump’s first term.
“The regulated community likes these,” Jonesi said about SEPs. “They are voluntary projects with a strong nexus to the violations, and they can significantly reduce a violator’s penalty and make it look a little better in local communities and beyond.”
Worries about environmental enforcement have spiked during the Trump administration.
The Justice Department and EPA have seen an exodus of staff, which will only increase the workload on those that remain in government. In turn, fewer cases could be filed against polluters and less money won in penalties and settlements.
“Polluting is easy. Meeting legal requirements that protect human health and the environment costs money,” Thoms said. “Without enforcement, there’s little incentive to comply.”
Hirsch, the EPA spokesperson, said the Trump administration has concluded as many civil enforcement actions as in the same period last year. The agency is focused on “achieving compliance as quickly as possible” rather than pushing “broad injunctive relief that goes beyond what the law requires and unfairly and unlawfully burdens industry and energy,” she said.
Pritzlaff’s memo, however, could heighten anxiety that enforcement will slow at the agency.
“Well, I could see how it could be used to end enforcement as we know it,” the third EPA employee said. “But then again, under Trump, no enforcement is getting done.”
Contact this reporter on Signal at KevinBogardus.89.
