On April 3, 2018, Susan Bodine, Assistant Administrator of U.S. EPA’s Office of Enforcement Assurance and Compliance Assistance (OECA), issued an internal memorandum titled “The Appropriate Use of Compliance Tools in Civil Enforcement Settlements” (the “Civil Tools Memo”). The memorandum withdraws an Obama administration memorandum titled “Use of Next Generation Compliance Tools in Civil Enforcement Settlements” (“Next Gen Memo”). Next Gen was the Obama EPA’s initiative to increase compliance with environmental regulations by using advances in pollutant monitoring and information technology. It had multiple components, one of which was “Innovative Enforcement,” which was described to include tools such as advance monitoring, third-party verification of compliance with settlement obligations, electronic reporting and public accountability through increased transparency of compliance data.

The Civil Tools Memo reflects the current administration’s position that remedies that go beyond what is required by the applicable statute or regulation would not be the norm when it comes to civil enforcement resolutions. It asserts that there is not a “default expectation that [such] provisions will be routinely sought” and notes that the agency has “many available tools” to address environmental violations, “including the installation and operation of equipment to control pollution, [and] monitoring equipment” to establish compliance with applicable regulatory and statutory requirements. This is consistent with messaging from Ms. Bodine dating back to her confirmation hearing in July 2019, in which she intimated that she would be more focused on the compliance aspect of her job than the enforcement aspect. Doubtless, this is additional welcome news to the regulated community.