The Advocate: DEQ disputes negative report: Environmentalists praise EPA findings that state not enforcing regulations

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By Amy Wold, Advocate staff writer

An EPA report listing Louisiana among the worst offenders in not enforcing environmental regulations has touched off a new volley of praise from environmentalists, who insist the enforcement issue is the state’s biggest challenge, and rebuttals from state officials, who say the report is proof the federal government doesn’t know what’s going on in the state.

“State, EPA regional, and external interview responses attributed Louisiana’s poor performance to several factors, including a lack of resources, natural disasters, and a culture in which the state agency is expected to protect industry,” says report Friday from the U.S. Environmental Protection Agency Office of Inspector General.

State-by-state enforcement of environmental regulations pertaining to water, air and hazardous waste is, in general, inconsistent, the report adds.

“State enforcement programs are underperforming: EPA data indicate that noncompliance is high and the level of enforcement is low,” the report charges.

Louisiana got low marks for enforcement of the Clean Water Act, Clean Air Act and the Resource Conservation and Recovery Act, which regulates hazardous waste.

State environmental groups applauded the report.

“This report confirms what we’ve experienced for years: The Department of Environmental Quality is an abject failure,” said Anne Rolfes, founding director of the Louisiana Bucket Brigade. “They are asleep at the wheel. We need federal enforcement to protect us. Just as the federal government has been crucial to protecting civil rights, so we need them to step in and protect our health and our environment.”

Marylee Orr, executive director of Louisiana Environmental Action Network, said the issue of regulation enforcement is one of the biggest environmental challenges the state faces.

“You can organize, you can get information, you can go to the agencies and even litigation, but if there’s no enforcement then nothing changes,” Orr said.

Officials with the Louisiana Department of Environmental Quality, however, say the report doesn’t present a correct picture of how enforcement is done in the state.

“It’s a clear statement of the inability of the federal government to track the complexity of their own programs,” said Chris Piehler, inspection division administrator with the DEQ.

The federal database has flaws that fail to track all activities going on at a state level, and these activities vary from state to state, Piehler said.

To evaluate state enforcement, the Office of Inspector General’s report looked at enforcement data from fiscal years 2003 to 2009. The information focused on the percent of facilities the states inspected each year, the percent of inspections that resulted in the state finding noncompliance — serious violations — and the percent of violations that resulted in the state issuing formal enforcement via penalty.

Piehler said, however, the only facilities that come under “significant noncompliance” are only the “major” facilities — differentiated from “minor” facilities by how much air, water or land pollution they produce. But those “significant noncompliance” numbers were divided into the total number of permits, which gives a false percentage of enforcement actions, he said.

For example, there are 13,000 water discharge permits in the state but “significant noncompliance” only applies to about 250 permits within that representing “major” facilities. However, the enforcement actions within that 250 permits is compared to the overall 13,000 permits to form a judgment in the report, he said.

In addition, the report doesn’t count the number of hurricane-related inspections performed, more than 18,500 during the period of the report.

The report also doesn’t count a program DEQ launched in 2004 that allows regional offices to issue informal notices of deficiencies to work with facilities to return them to compliance — a shorter process than the formalized and legal process the recent EPA report viewed, he said.

During the period of the report, there were 3,613 informal enforcement actions, which is twice the number of formal enforcements the report viewed, Piehler said.

As to the statement that interviews indicated, “a culture in which the state agency is expected to protect industry,” Piehler said that’s not the case. “I’m appalled that a federal government document makes an accusation like that to the state. I can’t understand how they came up with that.”

The report doesn’t look at the quality of the environment in the state compared with the enforcement and inspections, he said.

“The logic there is that you have a good program if your industries are noncompliant,” he said. “What’s the good of that?”

Industry representatives also disagreed with the report.

“I have not read the IG’s (inspector general) entire report, but for it to charge that DEQ is running a protection racket for industry is ridiculously false,” said Dan Borne, president of Louisiana Oil and Gas Association. “We work hard with DEQ to be compliant with all relevant laws and regulations, and when we slip up we double-down to get it right.”

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