EPA Inaction Imperils Clean Water Anti-Conflicts Safeguard

The U.S. Environmental Protection Agency's "see-no-evil" posture on federal law barring appointment of state permit issuers with recent financial ties to regulated industry has effectively gutted this key anti-conflicts buffer, according to Public Employees for Environmental Responsibility (PEER), the Florida Clean Water Network and the Androscoggin River Alliance. The groups say EPA is ignoring blatant violations of this important protection and thereby encourages states to violate it, pointing to two recent cases: In Florida, EPA has dithered for nearly a year without action. In Maine, the administrator resigned due to a parallel state law which has since been weakened while EPA stayed silent.

The federal Clean Water Act bars appointment of any state decision-maker on pollution discharge permits who "has during the previous two years received a significant portion of his income directly or indirectly from permit holders or applicants for a permit." Nonetheless, at least two states have recently done just that. Both conflicted environmental nominees were confirmed and then challenged by environmental groups; one was ousted and one remains but in both cases EPA remained on the sideline.

Nearly a year ago, on February 23, 2011, PEER and Florida Clean Water Network filed a legal complaint with EPA that Herschel Vinyard, Florida's environmental secretary, and another top appointee should be legally barred from issuing water pollution permits due to Vinyard's prior employment on behalf of shipyards. The groups even submitted Vinyard's sworn filings that he had worked for a regulated industry immediately prior to his appointment as Secretary of the Department of Environmental Protection (DEP).

In the ensuing months, EPA has issued three status letters, each more noncommittal than its predecessor. The last letter from EPA Regional Administrator Gwendolyn Keyes-Fleming on January 19, 2012 states:

"We are continuing to evaluate the information included with your letter, and the significant issues raised by that information. In light of the significant issues raised, we are coordinating our response on the matter with appropriate staff and management, both within the EPA Region 4 and offices in EPA's Headquarters."

"This should be a simple call to make. By Vinyard's own sworn statements he is in violation of federal law," stated Florida PEER Director Jerry Phillips, a former DEP enforcement attorney. "By all appearances, EPA is trying to run out the clock - if it stalls for another year the recusal becomes moot."

"EPA demonstrates its total disregard for the Clean Water Act everyday by pandering to polluters, ignoring our requests for enforcement actions, and turning a blind eye to Florida's deliberate debasing of federal laws," said Linda Young, Director of the Florida Clean Water Network. "Region 4 is essentially telling Floridians that we don't have a right to the protections promised in the Clean Water Act."

Meanwhile, in Maine, Governor Paul LePage appointed Darryl Brown, who owned a development company, as DEP Commissioner. Following Brown's confirmation, the Androscoggin River Alliance petitioned EPA on February 7, 2011 to act on his conflict. Unlike Florida, Maine had a parallel state law on this precise issue. On April 26, Maine Attorney General William Schneider informed Brown that "it appears that you are unqualified to serve as commission of the Department of Environmental Protection under Maine law." Shortly thereafter, LePage moved Brown to another state job but also introduced legislation to weaken the state law by eliminating the ban on employment and replacing it with a limited recusal process. This past June, the Governor's bill became law.

"Maine's late, great Senator Muskie wrote the Clean Water Act in 1972 because states had allowed industry to completely foul our waterways. He had a keen sense that the fox shouldn't guard the hen house," stated Neil Ward of the Androscoggin River Alliance, contrasting the quick action by Maine's Attorney General with the molasses-like pace of the EPA. "The EPA's inaction weakens the integrity of the law it is charged with enforcing."

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Read about the Vinyard case in Florida

See EPA uninformative responses

Compare the letter from the Maine Attorney General

View the new Maine law

Look at recent EPA IG report decrying weak state oversight

Sign the PEER petition asking EPA to enforce conflicts bar