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 four workers 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.
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 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.”