EPA puts pressure on state DEQ
Use more stick, less carrot, agency told
February 15, 2003
By Mark Schleifstein
The U.S. Environmental Protection Agency told Louisiana's Department of Environmental Quality on Friday that it must agree to adopt major changes in its water pollution enforcement program by March 31 or have the program taken away.
The threat is one rarely used by EPA to garner better enforcement from states, and it follows criticism of the state program and EPA's oversight, documented in a series of EPA Inspector General reports in the past two years.
Letters sent to Gov. Foster by EPA Administrator Christie Todd Whitman and her top staff demand changes that would require the state to use more stick and less carrot in getting industries to reduce the pollution they release into rivers and streams.
The EPA wants the state to begin wringing fines from polluters immediately instead of giving them years to comply or to implement environmentally friendly alternatives, such as building wetlands.
EPA officials said they want more aggressive measures than those recommended this year by a Foster task force. Many of the changes demanded by EPA were advocated by the Louisiana Environmental Action Network and the Tulane Environmental Law Clinic, which have asked the EPA to take over enforcement of federal water pollution, air pollution and hazardous waste programs.
Karla Raettig, supervising attorney with the Tulane law clinic, said being in an uncomfortable federal spotlight is bound to make the DEQ step up enforcement.
"Now the incentive is here: I'm sure there would be total embarrassment to be one of the first states to have the program withdrawn," she said.
DEQ Secretary Hall Bohlinger said Friday that EPA's "performance measures" would change the culture of environmental enforcement in the state. He said he expects Foster to agree to the EPA demands, the result of negotiations with his agency.
"These are things we feel should be done, and we didn't object," Bohlinger said. Many of the rule changes DEQ would adopt would apply to the air and hazardous waste programs, he said.
The measures required by the EPA include:
-- A commitment to dramatically reducing DEQ's backlog of water permits for major pollution sources within a year, and for minor pollution sources within two years. The state is behind in issuing renewals and new permits for 38 percent of its major permits and 49 percent of its minor permits.
-- Changes in state rules to make sure companies violating water quality rules don't make money from doing so. In the past, DEQ did not always try to find out how industries profited from breaking pollution regulations. Now, fines must attempt to recoup those profits.
-- Limits on letting companies substitute environmental improvement projects for the payment of fines. Environmental groups have complained that some companies were allowed to construct changes in their pollution control equipment that might be required under the law, or build wetlands restoration projects, instead of paying hefty fines.
-- An agreement to complete enforcement actions by taking violators to court or completing administrative appeals within one to two years. An audit last year by former Legislative Auditor Dan Kyle charged that many cases never were taken to court, or were delayed for years.
-- An explanation of whether the state Constitution provides a loophole for municipalities or state agencies to avoid fines, and a process for transferring those cases back to the EPA for enforcement. Bohlinger said that while the agency has been able to collect fines from some municipalities, a 1995 change in the Constitution might exempt state entities.
-- A promise to improve public access to DEQ files, and improve the quality of data gathered by the agency and sent to the EPA. Bohlinger said the agency has made electronic versions of more than 25 million documents, but it halted plans to make them available on the Internet in November because of security concerns.
MaryLee Orr, executive director of the Louisiana Environmental Action Network, called the EPA action a step in the right direction.
"They appear to be putting measurable goals for the Louisiana DEQ to improve their protection of our valuable water resources and public health," she said.
She said members of the more than 50 environmental groups that make up her organization will be monitoring the changes as they are put in place.
Raettig said she's still concerned that the state agency might not have the resources or commitment to adopt EPA's requirements. But Bohlinger is confident.
"We worked these things out jointly with EPA, and we're satisfied with the letter as it came down," he said. "We think they're attainable and will help us improve and streamline our organization."
EPA officials made it clear that they will be watching the state's progress carefully:
"EPA reserves the right to consider the possible withdrawal of program authorization at some future date, depending on the state's progress in restoring program integrity," EPA spokeswoman Cynthia Fanning said.
. . . . . . .
Mark Schleifstein can be reached at
email@example.com or (504) 826-3327.
Copyright material is distributed without profit or payment for research and educational purposes only, in accordance with Title 17 U.S.C. section 107. Reference: http://www.law.cornell.edu/uscode/17/107.shtml.