The following article by Eric Lipton and Danielle Ivory was posted on the New York Times website December 10, 2017:
EAST LIVERPOOL, Ohio — The highway billboard at the entrance to town still displays a giant campaign photograph of President Trump, who handily won the election across industrial Ohio. But a revolt is brewing here in East Liverpool over Mr. Trump’s move to slow down the federal government’s policing of air and water pollution.
The City Council moved unanimously last month to send a protest letter to the Environmental Protection Agency about a hazardous waste incineratornear downtown. Since Mr. Trump took office, the E.P.A. has not moved to punish the plant’s owner, even after extensive evidence was assembled during the Obama administration that the plant had repeatedly, and illegally, released harmful pollutants into the air.
“I don’t know where we go,” Councilman William Hogue, a retired social studies teacher, said in frustration to his fellow council members. “They haven’t resolved anything.”
Scott Pruitt, the E.P.A. administrator, has said the Trump administration’s high-profile regulatory rollback does not mean a free pass for violators of environmental laws. But as the Trump administration moves from one attention-grabbing headline to the next, it has taken a significant but less-noticed turn in the enforcement of federal pollution laws.
An analysis of enforcement data by The New York Times shows that the administration has adopted a more lenient approach than the previous two administrations — Democratic and Republican — toward polluters like those in East Liverpool.
The Times built a database of civil cases filed at the E.P.A. during the Trump, Obama and Bush administrations. During the first nine months under Mr. Pruitt’s leadership, the E.P.A. started about 1,900 cases, about one-third fewer than the number under President Barack Obama’s first E.P.A. director and about one-quarter fewer than under President George W. Bush’s over the same time period.
In addition, the agency sought civil penalties of about $50.4 million from polluters for cases initiated under Mr. Trump. Adjusted for inflation, that is about 39 percent of what the Obama administration sought and about 70 percent of what the Bush administration sought over the same time period.
The E.P.A., turning to one of its most powerful enforcement tools, also can force companies to retrofit their factories to cut pollution. Under Mr. Trump, those demands have dropped sharply. The agency has demanded about $1.2 billion worth of such fixes, known as injunctive relief, in cases initiated during the nine-month period, which, adjusted for inflation, is about 12 percent of what was sought under Mr. Obama and 48 percent under Mr. Bush.
Resolving complicated pollution cases can take time, and the E.P.A. said it remained committed to ensuring companies obeyed environmental laws.
“E.P.A. and states work together to find violators and bring them back into compliance, and to punish intentional polluters,” the agency said in a statement. Officials said Mr. Pruitt was less fixated on seeking large penalties than some of his predecessors were.
“We focus more on bringing people back into compliance than bean counting,” the statement said.
After this article was posted, the E.P.A. issued a statement criticizing the report, and saying that “Administrator Scott Pruitt is committed to enforcement,” and that “there is no reduction in E.P.A.’s commitment to ensure compliance with our nation’s environmental laws.” (The full statement is here.)
Confidential internal E.P.A. documents show that the enforcement slowdown coincides with major policy changes ordered by Mr. Pruitt’s team after pleas from oil and gas industry executives.
The documents, which were reviewed by The Times, indicate that E.P.A. enforcement officers across the country no longer have the authority to order certain air and water pollution tests, known as requests for information, without receiving permission from Washington. The tests are essential to building a case against polluters, the equivalent of the radar gun for state highway troopers.
At at least two of the agency’s most aggressive regional offices, requests for information involving companies suspected of polluting have fallen significantly under Mr. Trump, according to internal E.P.A. data.
In the last two complete fiscal years of the Obama administration, the E.P.A.’s office in Chicago sent requests for testing that covered an average of 50 facilities per year, or about 4.2 each month. By comparison, after the policy changes, one such request for a single facility was made in the subsequent four-month period. There was a similar decline in the Denver regional office, according to the data.
The enforcement slowdown has been compounded by the departure of more than 700 employees at the E.P.A. since Mr. Trump’s election, many of them via buyouts intended to reduce the agency’s size, and high-level political vacancies at the E.P.A. and the Justice Department. The agency’s top enforcement officer — Susan Bodine — was confirmed only late last week.
Separately, Mr. Pruitt’s team has told officials and industry representatives in Missouri, North Dakota and other states that E.P.A. enforcement officers will stand down on some pollution cases, according to agency documents. The retrenchment is said to be part of a nationwide handoff of many enforcement duties to state authorities, an effort Mr. Pruitt calls cooperative federalism but critics say is an industry-friendly way to ease up on polluters.
Current and recently departed E.P.A. staff members said the new direction has left many employees feeling frozen in place, and demoralized, particularly in the regional offices, which have investigators who are especially knowledgeable of local pollution threats.
“Certain people who are polluting are doing it with impunity right now and I think it is horrible,” said Nicole Cantello, an E.P.A. lawyer in the Chicago office, who has worked at the agency for 26 years.
Ms. Cantello agreed to speak to The Times because she is protected by her status as a union official. The E.P.A. did not authorize agency employees to speak.
The Times asked top E.P.A. enforcement officials from the Obama and Bush administrations to review The Times’s data, analysis and methodology. (Read more about The Times’s methodology here.) They said the slowdown signaled a sea change in enforcement under Mr. Trump.
“Those kinds of numbers are stark,” said Granta Nakayama, a lawyer who served in the Bush administration as assistant administrator for the E.P.A.’s enforcement office and who now represents companies facing E.P.A. enforcement actions for the law firm King & Spalding, where he oversees the environmental practice.
“If you’re not filing cases, the cop’s not on the beat,” he said. “Or has the cop been taken off the beat?”
Cynthia Giles, the former assistant administrator for the E.P.A.’s enforcement office during the Obama administration, also prepared a separate version of the data. She described as a “stunning decline” the reduced efforts under Mr. Trump to require companies to bring their facilities into compliance with pollution laws.
>“The Pruitt E.P.A. is cratering on the enforcement work that matters most: holding the biggest polluters accountable,” said Ms. Giles, now a director at the Energy & Environment Lab at the University of Chicago.
Some enforcement experts suggested that the E.P.A. under Mr. Pruitt might have filed fewer cases because it was going after larger penalties. But according to the Times analysis, most of the top penalties were smaller than those in the previous two administrations. And the nine-month window included the single largest civil case filed by the E.P.A., against Exxon Mobil.
‘It Really Just Scares Me’
On a midsummer afternoon in 2013, boiler ash and steam blasted through a breach at the Heritage Thermal Services hazardous waste incinerator, spewing hundreds of pounds of ash into a nearby neighborhood in East Liverpool and setting off a series of small fires at the plant.
Tests later showed that the ash, which looked like dirty clumps of cotton candy scattered across rooftops and lawns, contained toxic chemicals. In some samples, lead and arsenic were found at concentrations that “could pose a hazard to small children,” according to an Ohio Department of Health report. Heritage Thermal went door to door offering to wash people’s houses and replace vegetables in their gardens.
Sandra Estell, 64, who lives on a river bluff overlooking the plant, said the ash covered her brother’s Chevy Blazer and blanketed the street where she grew up. Even when the plant operates normally, she said, she smells the incinerator from her home — with the odor changing from rotten eggs to an electrical fire to something difficult to place.
Truckloads of hazardous waste often sit in the parking lot outside the plant, awaiting disposal. On the day of the accident in 2013, the plant was burning through a load of waste sent from an oil refinery in Toledo.
“It really just scares me,” Ms. Estell said of the incinerator.
The plant falls under the jurisdiction of the E.P.A. regional office in Chicago, which moved quickly to investigate the episode as a possible violation of the Clean Air Act, federal records show.
Investigators sent Heritage Thermal’s general manager what is known as a Section 114(a) request for detailed information on the explosion. Failing to answer the questions, warned George T. Czerniak, who was then the E.P.A.’s Chicago-based director of the air and radiation division, could result in punishment.
Heritage Thermal complied within weeks, and also disclosed that the plant had faced a series of related problems when pressure inside the incinerator had climbed to dangerous levels. Mr. Czerniak asked for more information about those episodes, and by March 2015 he had signed a formal letter of complaint, alleging a series of Clean Air Act violations that would very likely result in fines, as well as possible civil or criminal action.
“We are offering you an opportunity to confer with us about the violations,” Mr. Czerniak wrote in the letter. “You may have an attorney represent you at this conference.”
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More than two and a half years later, the matter remains unresolved, leading to the letter of complaint to the E.P.A. last month from the East Liverpool City Council. The body is dominated by Democrats, but it says its motivation in criticizing the E.P.A. is based on concerns about public safety and not partisan politics.
John Mercer, a City Council member, said taking on air pollution issues at Heritage Thermal has been a delicate matter because the area has lost thousands of jobs as steel and pottery manufacturing plants closed. “Heritage Thermal is one of the city’s largest employers,” he said. “We are all friends and neighbors with those that work there.”
Still, he said, residents want the matter resolved. “Our constituents deserve answers that no one seems to want to provide,” he said.
A spokesman for the E.P.A. declined to comment on the case’s status, as did Christopher T. Pherson, president of Heritage Thermal. The company said in a statement that it “is committed to continuously enhancing its performance and environmental compliance.”
Ms. Estell, who was critical of the plant even before it opened in the 1990s for being built near homes, blames the change in administrations in Washington for the inaction. “Something made them slam on the brakes,” she said.
Every administration runs into delays when investigating and enforcing environmental laws, and it is hard to pinpoint why any particular case might stall without access to confidential E.P.A. files. But the lack of action in East Liverpool mirrors a pattern of sluggish new enforcement activity under the Trump administration, as represented in data analyzed by The Times.
The Times identified more than a dozen companies or plants like Heritage Thermal that received notices of violation toward the end of the Obama administration, but as of late November had not faced E.P.A. penalties. The findings were based on agency files released through a Freedom of Information Act request to the Environmental Integrity Project, a nonprofit group run by a former E.P.A. enforcement chief.
Indiana Harbor Coke in East Chicago, Ind., has received at least three warning notices since 2015 for pollution violations, including hundreds of illegal emissions of lead, which can cause serious health problems, especially for children.
Other cases include TimkenSteel Corporation of Canton, Ohio, which was served with a notice in November 2015 for illegally emitting hazardous toxins, including mercury, which, when inhaled in large quantities, can cause pulmonary edema, respiratory failure and death.
In Waterford, Ohio, Globe Metallurgical was cited in June 2015 and December 2016 for air pollution violations. The E.P.A. collected evidence that it was emitting illegal amounts of sulfur dioxide, which can irritate the nose and throat and, at very high concentrations, cause life-threatening accumulation of fluid in the lungs.
And in East Liverpool, just down the street from the Heritage Thermal incinerator, S.H. Bell was cited for allowing toxic levels of dust with heavy metal chemical additives such as manganese to drift beyond its property line.
Tests conducted near S.H. Bell found “the highest levels of ambient manganese concentrations in the United States,” a complaint issued during the Obama administration said. Health officials warned that the situation represented “a public health hazard and should be mitigated as soon as possible to reduce harmful exposures.”
Research led by the University of Cincinnati found in September that levels of manganese in the blood and hair of children in East Liverpool appeared to be related to lower I.Q. scores, a conclusion executives from S.H. Bell have disputed.
The E.P.A. moved in the final days of the Obama administration to resolve the S.H. Bell matter, proposing a consent decree in January that would require changes to reduce manganese dust levels and to improve monitoring.
Generally, a proposed consent decree is resolved within several months, but in March, the Trump administration asked a federal judge to delay the case so the E.P.A. could “brief incoming administration officials with decision-making responsibility” given that “many subordinate political positions at the agency remain unfilled.” The Justice Department has since asked the court to move ahead, but the case remains open.
A spokeswoman for S.H. Bell said that the company had moved to comply with the requirements and that its operations had not harmed residents. The E.P.A. said in a statement that it was waiting for the court to act. “It would not be appropriate to discuss the open enforcement matters,” the statement said.
Roberta Pratt, 49, a bartender who lives with her family on a block situated between Heritage Thermal and S.H. Bell, said she worries constantly about the delays in enforcement at the facilities. The side of her house, she said, is stained with a rusty color from heavy metals that float through the air.
“It makes me feel like less of a mother,” said Ms. Pratt of the pollution problems. “You can’t protect your children.”
Fighting back tears, she added, “People say to me, ‘Why don’t you just pick up and move out of here?’ Well, I just don’t have the money to do that.”
Industry Gets a Sympathetic Ear
The memo was marked “Privileged/Confidential/Do Not Release” and was signed by Susan Shinkman, the director of civil enforcement at the E.P.A. and one of Mr. Pruitt’s top deputies in Washington at the time.
It arrived by email to agency employees across the country on May 31.
With four pages of detailed instructions, it directed E.P.A. investigators to seek authorization before asking companies to track their emissions with instruments that determine the type and amount of pollutants being released at their plants.
It also said investigators needed special authorization if they did not already have evidence that the company had quite likely violated the law, or if state authorities objected to the tests.
The scope was far-reaching, applying to possible violations of the Clean Air Act, the Clean Water Act and federal laws regulating hazardous waste plants.
The goal of these changes, the memo said, was to “ensure a more nationally consistent and complete accounting of federal compliance monitoring and enforcement activities.” But the directive arrived like a thunderbolt, upending one of the agency’s most effective methods in catching polluters, E.P.A. regional officials said, and one that was extremely unpopular with the oil and gas industry.
In the prior two years, investigators in the Chicago office had sent requests for information — which includes requests for testing — that covered 267 facilities in the six Midwest states it oversees, including in cases involving giant mountains of petcoke stored near residential neighborhoods in Chicago. A carbon and sulfur byproduct of refining oil, petcoke particles can become airborne and enter the lungs, causing serious health effects.
Investigators in the regional office in Denver, which handles many oil and gas cases, also sent out a series of requests during the Obama administration based on hints that energy producers were letting vast quantities of hazardous air pollutants escape into the atmosphere. The pollutants included benzene, which is a carcinogen, and methane, which is a major contributor to climate change. The investigations escalated after fourworkers at energy facilities in North Dakota were overcome by fumes and died.
As the Obama administration came to a close, companies had grown increasingly unhappy with the tests and began to fight them by turning to allies in Washington.
Koch Carbon, a subsidiary of Koch Industries, which operated two petcoke storage facilities in Chicago, challenged the E.P.A.’s authority to require the tests in a formal filing with the agency, E.P.A. documents show, although it still provided the information the agency had requested. The test results showed that its petcoke piles were, in fact, threatening neighbors and led to their removal.
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Republicans in Congress, including Senator James M. Inhofe of Oklahoma, took up the cause for the oil and gas industry. In public hearings, Mr. Inhofe interrogated E.P.A. officials about the tests and called them “a backdoor effort for the E.P.A. to cut greenhouse gas emissions.”
When Mr. Trump was elected and named Mr. Pruitt, the former Oklahoma attorney general, to lead the E.P.A., the complaints got a fresh — and sympathetic — hearing. Ms. Shinkman, in an interview, said she was instructed to write the new policy memo after Mr. Pruitt received letters of complaint from oil industry executives in North Dakota and Colorado. Ms. Shinkman, who joined the agency in 2012 as an Obama administration appointee, retired from the E.P.A. in September; in its statement to The Times, the E.P.A. did not say whether the oil and gas industry had been a factor in its decision.
Ron Ness, the president of the North Dakota Petroleum Council, wrote to Mr. Pruitt in March describing the tests as burdensome and costly. “Under the previous administration, the E.P.A. initiated sweeping Clean Air Act (CAA) Section 114 information requests and threatened company-ending sanctions.” Mr. Ness wrote in a letter obtained by The Times.
In his response to Mr. Ness, Mr. Pruitt wrote that the E.P.A. would “develop best practices for the judicious use” of the requests, and also hand off much of the enforcement of air pollution laws to North Dakota officials, except on Indian lands where the federal government has jurisdiction.
“The E.P.A. acknowledges the critical role that the oil and gas industry plays in ensuring the nation’s energy independence through domestic energy production,” Mr. Pruitt wrote to Mr. Ness in July.
The change in North Dakota was part of a broader effort by the E.P.A. to give states more say in how to treat polluters.
In a letter to the Missouri Department of Natural Resources, Edward Chu, the deputy administrator of the E.P.A.’s regional office in Kansas, said the agency would back off some inspection and enforcement activity so the state could take the lead. “These shifts in direction do represent significant change,” Mr. Chu wrote.
Officials in North Dakota said the new arrangement there is leading to faster resolution of cases involving the oil and gas industry.
“We are focused on compliance and fixes, not on big fines that are trumped up,” said Jim Semerad, who leads the division of the North Dakota Department of Health that enforces air emissions rules.
But some critics question the sincerity of Mr. Pruitt’s deference to state authorities, in part because it comes as the Trump administration has proposed cutting grants that help states pay for local enforcement. And the vigilance of some states in taking on the new responsibilities is also uncertain.
An audit by the E.P.A. inspector general in 2011 described North Dakota as “a state philosophically opposed to taking enforcement action” against polluters.
The state’s fines, moreover, are a tiny fraction of those imposed by the E.P.A. for the same violations, records obtained by The Times show, and some North Dakota settlements do not require the hiring of independent inspectors to ensure companies honor their promises.
In Ohio, a change in state law that was tucked into a budget bill this year cut funding for an inspector in East Liverpool, even as Ohio authorities found continued evidence of air pollution violations at the Heritage Thermal incinerator, according to state records obtained by The Times.
Ohio Environmental Services Industry, a trade group that represents Heritage Thermal and a handful of other hazardous waste companies, pushed for the change. The group said the facility would receive sufficient oversight without the dedicated state inspector.
The changes across the country, some lawyers suggest, are giving violators an upper hand in negotiating with the E.P.A.
Paul Calamita, who represents cities accused of violating the Clean Water Act when they release sewage and contaminated storm water into rivers and lakes, recommends that clients team up with state governments to push back against the E.P.A.
Under President Trump, Mr. Calamita said, the E.P.A. and the Department of Justice have been willing to compromise, withdrawing a six-figure penalty in one instance after refusing to do so in two previous rounds of negotiations during the Obama administration.
“States with new Republican governors are following the Trump approach — providing compliance assistance at the outset to avoid enforcement where the discharger is cooperative,” he said in a presentation to utility executives from around the United States. “A state that pushes back on E.P.A. is likely to be successful.”
A Muscular Office Loses Muscle
The E.P.A. under Mr. Pruitt has pursued some high-profile prosecutions of polluters and has talked tough about companies like Fiat Chrysler, which like Volkswagen has been accused of installing software on its vehicles meant to evade emissions standards.
The agency’s biggest civil case filed since Mr. Trump took office involves Exxon Mobil, which was accused of not properly operating and monitoring industrial flares at its petrochemical facilities. Exxon agreed in October to pay $2.5 million in civil penalties, some of which will go to Louisiana, and spend $300 million to install new technology to reduce air pollution.
The agency on Friday also released a list of 21 Superfund sites contaminated with hazardous substances and pollutants that Mr. Pruitt has targeted for immediate and intense attention. One of the sites on the list, Tar Creek, a former lead and zinc mine, is in Oklahoma, where Mr. Pruitt once served as attorney general and state senator.
But more than a dozen current and former E.P.A. officials told The Times that the slowdown in enforcement is real on the ground, and that it is being directed from the top.
At the Ralph Metcalfe Federal Building in Chicago, which houses a regional office of the E.P.A., employees said it has become difficult to even start a new investigation. Because it covers states populated with Rust Belt industries, the Chicago office has traditionally been one of the busiest of the 10 regions.
An agency spokeswoman, in a statement, said “we have not rejected any requests for sampling, monitoring and testing” that were sent to headquarters as a result of the new policy. But agency staff said the memo made clear such requests were discouraged, and many fewer were being drafted.
Jeff Trevino, a lawyer in the Chicago office, who has worked for the agency for 27 years, said the new hurdles imposed by Mr. Pruitt had created “a Catch-22” because, with new policies effectively discouraging requests for information, investigators will have a harder time getting the data needed to detect and confirm violations.
Mr. Trevino, like other current E.P.A. employees, was not authorized by the agency to speak with The Times, and did so as a member of the labor union.
“We are the boots on the ground and we just are having a hard time now getting the information we need to do our job,” said Felicia Chase, who has worked for nearly a decade as a water pollution enforcement officer in the Chicago office, which covers states from Minnesota to Ohio. She was also speaking in her capacity as a union member.
Ms. Chase sat glumly in the cafeteria just before Thanksgiving. On a television set on the wall, President Trump could be seen offering an official pardon to a turkey, joking that he could not reverse Mr. Obama’s turkey pardons from the previous year.
Some workers said they would take the unusual step of asking members of Congress to protect funding for the work they do, while others said they held out hope that the new restrictions on information gathering would not be permanent. Ms. Shinkman, the retired author of the May memo, said she had hoped to avoid a sharp drop in requests for information, but she declined to elaborate how that would be possible.
Mr. Czerniak, who led the air pollution unit in Chicago until his retirement in 2016, said it was hard to watch the agency struggle through this new era.
“People at the agency are just being cautious, almost to the point of paralysis,” he said. ”They do not want to do anything for fear of being told they have done something wrong — something the new administrator won’t like.”
Eric Lipton reported from East Liverpool, Ohio; Chicago; and Washington, and Danielle Ivory from New York. Kitty Bennett contributed research.
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