Regulatory Update – EPA Using Contractors for RMP Inspections Despite Court Ruling Against Practice
Last week, the U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) released a report on the agency’s use of contactors to conduct Clean Air Act (CAA) Risk Management Program (RMP) inspections despite court decisions against this practice. In a memorandum to Cynthia Giles, Assistant Administrator for the EPA Office of Enforcement and Compliance Assistance, the Inspector General wrote, “During the preliminary research phase of our evaluation, we learned that EPA has used contractors to perform risk management program inspections in Kansas, Kentucky, and Tennessee despite federal court decisions prohibiting EPA’s use of contractors to conduct CAA inspections in these states and the EPA policy memo that incorporated the decisions.” In the early 1980s, the Sixth and Tenth Circuit Courts ruled that contractors may not be designated by EPA as “authorized representatives” of the Administrator under CAA Section 114 on recordkeeping, inspections, monitoring and entry. EPA then issued a policy memo stating that contractors should not be designated to conduct inspections in the 10 states covered by the Sixth and Tenth Circuits, which are spread out over five EPA Regions. The Inspector General has directed EPA to review the legality and appropriateness of using contractors to perform CAA inspections, take action to revise this practice, and update its policy memo.