The Environmental Protection Agency (EPA) is getting rid of a policy that let pollution enforcement officials drop in at power and chemical plants for unannounced inspections without first alerting states.
A July 11 memo shared with EPA regional administrators outlined a new enforcement policy that would do away with the tactic in order to enhance cooperation between the agency, states and the regulated industry.
“A ‘no surprises' principle is the foundation of joint work planning and will minimize the misunderstandings that can be caused by the lack of regular, bilateral communication,” wrote Susan Bodine, assistant administrator for enforcement and compliance assistance.
“With increased EPA cooperation and transparency, the EPA expects the states to respond in kind.”
EPA posed the new policy, which would stop agency officials from conducting inspections at facilities without giving prior notice to the states involved, as a way to increase communication and partnerships between the agency and the states in which it empowers to regulate businesses.
“The overall goal of joint planning is the sharing of enforcement responsibilities with a clear agreement on EPA and state roles in individual inspections and formal enforcement actions. Such agreements cannot be reached if the EPA or a state is unaware of the actions of the other,” the memo read.
Environmentalists are criticizing the policy change for limiting the tools EPA enforcement officials can use to make sure power plants, chemical facilities and other emitters are not illegally polluting across states.
“Taking the element of surprise away from inspections decreases their effectiveness, for obvious reasons,” Tim Whitehouse, executive director of Public Employees for Environmental Responsibility and a former EPA enforcement attorney, said in a statement.
“I fear that EPA’s ‘no surprises’ posture masks a ‘see no evil’ approach to corporate polluters.”
An EPA spokesperson said the new rule will still allow for surprise inspections at facilities, once state regulators are aware.
“The Partnership Policy sets for a principle that there will be no surprises between EPA and state regulators in authorized programs. It does not articulate a “no surprises” policy with respect to the regulated community," the spokesperson said in a statement.
"It is common for both EPA and States to conduct many inspections without prior notice to the facility and the policy recognizes that this practice will continue. It simply says that there should be an understanding between EPA and the State regarding confidentiality and “whether or when” a facility would get advance notice of an inspection.”
An employee within EPA’s enforcement office suggested that while the policy is new, EPA for some time has shifted away from surprise visits to coordinated inspections.
“We have done surprise inspectors over the years ... but over the years we've also given people a heads up. We might have preserved the ability, but for the most part, we don't surprise people unless we get a tip that people are going to destroy evidence,” the source said.
The policy staffer said the policy change is in line with the EPA’s overall shift toward more federal and state partnerships, where it allows local governments more control over policing of regulations.
“It is sort of consistent with our federalism and way that they want to reach out to states and tribes and so forth. The most innocent explanation is it’s just a reflection of that you want to keep up good relations,” the source said.
Bodine’s memo explicitly states that, “The EPA may take an enforcement action where a state is not taking timely and appropriate action” and that the EPA will be reviewing state enforcement programs.
“The EPA has a responsibility under the federal environmental statutes to conduct a limited number of inspections to verify the efficacy of authorized enforcement programs,” the memo reads.
However, Whitehouse says the memo is disturbing for what it fails to say in addition to its policy changes.
“Basing enforcement on interagency consensus places politics above pollution control,” he said, pointing to the fact that the policy doesn’t mention pollution reduction as a goal.
“Nobody opposes cooperation or supports duplication, but this policy risks environmental protection by giving the upper hand to corporate polluters and states that don’t want to enforce environmental laws.”