EPA Memo Emphasizes “Compliance First” Enforcement Approach

On December 5, EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a memorandum to staff affirming a “compliance first” approach to civil enforcement. The memo, signed by Acting Assistant Administrator Craig J. Pritzlaff, applies to all civil enforcement matters and reflects EPA leadership’s instruction to staff regarding inspections, investigations, and enforcement negotiations.

EPA’s memorandum reflects a shift in leadership philosophy to focus enforcement on the most defensible interpretations of statutes and regulations. It also signals an explicit effort within EPA to achieve compliance expeditiously rather than engage in protracted enforcement. The practical effects on individual enforcement matters—and the types of enforcement that EPA regions pursue—may vary, but the memo provides several key tenets that businesses should know as they interact with EPA.

Emphasis on Collaboration

The memorandum directs EPA personnel to prioritize achieving compliance in the “most efficient, most economical, and swiftest means possible” rather than defaulting to prolonged enforcement actions that sometimes delay corrective action. First, EPA places renewed emphasis on working directly with regulated parties. The memo instructs OECA staff to facilitate prompt resolution of violations through outreach, technical assistance, training, and voluntary audit and self-disclosure incentives. The memo also encourages open communication between EPA, states, tribes, and regulated entities.

Second, the memo underscores cooperative federalism. EPA staff should consider deferring to state regulators, avoiding duplicative oversight, and coordinating with state and tribal partners to ensure consistent compliance outcomes.

Interpretive Approach Tied to Statutory Text

The memo also cautions against expansive regulatory interpretations in findings of violation. The memo encourages interpretations of law that reflect the “best reading” of applicable statutes and regulations, grounded in statutory construction canons, past practice, and litigation risk. This indicates that staff will be expected to coordinate with managers when there is ambiguity in applicable law, and the memo explicitly instructs staff to coordinate in scenarios that may implicate more aggressive enforcement approaches.

The memo also signals restraint in the use of injunctive relief and settlement tools. Remedies must be closely linked to the statutes and regulations at issue, and designed to achieve compliance quickly. The memo rescinds prior guidance that broadly promoted advanced monitoring, third-party audits, and other enhanced settlement conditions, absent clear statutory or regulatory support. It also indicates that further guidance is forthcoming to clarify EPA’s position on mitigation projects, stipulated remedies, and Supplemental Environmental Projects (SEPs) as part of settlements. The proper use of these settlement tools has been disputed among recent administrations, and the memo proscribes the use of SEPs pending further guidance.

Business Takeaways

Regulated entities should understand EPA’s approach as reflecting greater commitment to communication with regulated parties, focusing enforcement on the clearest violations of law, and prioritizing prompt corrective action over lengthy enforcement matters. Key takeaways include:

• Consider an audit. The memo notes EPA’s intent to promote voluntary compliance efforts, like audits. This could be a good time to take advantage of EPA’s Audit Policy or New Owner Audit Policy to reduce penalties and limit future enforcement risk. Audits can also help ensure that compliance programs are up-to-date and meet the letter of applicable requirements. Specific requirements apply for using these policies and should be discussed with legal counsel.
• Focus on principles of statutory interpretation. Findings of violation should be based on the “best reading” of statutes and regulations, not expansive or novel interpretations. OECA may emphasize these principles and when there is ambiguity, it may provide grounds for discussion with EPA. Businesses should consider whether current or future enforcement actions adhere to the “best reading” of the law and whether to raise interpretation issues with EPA.
• Certain states may play a larger role in enforcement, while others pull back. EPA’s renewed emphasis on cooperative federalism may reduce federal oversight. Additionally, state agencies in aggressive jurisdictions may rush to fill an enforcement role where EPA is perceived to be stepping back. Careful analysis of state compliance and enforcement programs, alongside federal requirements, supports a thoughtful approach for moving forward in the current regulatory landscape.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.