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The Environmental Protection Agency is using contractors to conduct risk management inspections in Kansas, Kentucky, and Tennessee, despite federal court rulings that say contractors cannot conduct inspections, the agency's inspector general said in a memo released March 29.
The agency “should immediately review the legality and appropriateness” of using contractors for the inspections and, if needed, “take immediate action to eliminate or revise” the practice, EPA Inspector General Arthur A. Elkins Jr. wrote in a memo to Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance.
The U.S. Court of Appeals for the Tenth Circuit and the U.S. Court of Appeals for the Sixth Circuit ruled in 1981 and 1982 that EPA cannot designate contractors to be “authorized representatives” for inspections, the memo said (Stauffer Chemical Co. v. EPA, 647 F.2d 1075, 15 ERC 2044 (10th Cir. 1981); United States v. Stauffer Chemical Co., 684 F.2d 1174, 17 ERC 1753 (6th Cir. 1982)).
And in 1984, the agency issued a policy memo saying EPA headquarters must approve the use of contractors for inspections in states in the Tenth and Sixth circuits. Kansas, Kentucky, and Tennessee are among the affected states.
The memo pointed out that other courts--the U.S. Court of Appeals for the Ninth Circuit (and the U.S. District Court for the Middle District of North Carolina--ruled differently in 1981 and 1980 decisions (Bunker Hill Co. v. EPA, 658 F.2d 1280, 16 ERC 1552 (9th Cir. 1981); Aluminum Co. of America v. EPA, No. M-80-13, M.D.N.C., 8/5/80). They said EPA may use contractors as “authorized representatives.”
EPA was not immediately available to comment on the memo.
The risk management program under Section 112(r) of the Clean Air Act requires facilities that have more than a threshold quantity of regulated substances on-site to develop a risk management plan.
The plan describes and documents the facility's hazard assessment and its prevention and response programs. According to the inspector general's memo, knowledgeable inspectors are an essential component of the program for ensuring that facilities comply with program requirements, which are designed to prevent accidents and mitigate harm when accidents occur.
Elkins said his office is reviewing EPA's management controls for risk management program inspections, and preliminary research uncovered the use of contractors.
“While we continue our evaluation in the field work phase, this situation requires your immediate attention,” Elkins wrote.
Elkins also said that EPA should update and reissue its policy memo on the use of contractors to perform the inspections.
The EPA inspector general's memo, Early Warning Report: Use of Contractors to Conduct Clean Air Act Risk Management Program Inspections in Certain States Goes Against Court Decisions, is available at http://www.epa.gov/oig/reports/2012/20120328-12-P-0376.pdf.
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