Watchdog: EPA does not always follow internal rulemaking process

The Environmental Protection Agency (EPA) inconsistently followed its own internal rulemaking process, with adherence varying widely from office to office, according to a report released Wednesday by the agency’s Office of Inspector General (OIG).

The OIG report analyzed the rulemaking process for 58 rules between January 2020 and February 2021 using a checklist and found adherence to internal processes varied from 44 percent to 100 percent. Adherence varied according to program office, economic significance and major milestone, according to the report.

The report indicated that for economically significant rules, adherence was 5 percent less than overall adherence to the OIG checklist.

The report identified two major reasons for nonadherence. First, the agency’s Office of Policy in some cases designated milestones in the process as “moot” and allowed them to be skipped, which is not provided for in official guidance, according to the report. It also failed to document major milestones in several cases, according to the report. Less than half of major milestones were documented in 30 of the 58 rules analyzed.

“Interviewees and notes in ADP [Action Development Process] Tracker indicated that reasons for designating milestones as moot included expediting rulemaking timelines and considering milestones as unnecessary for specific rulemakings,” the report states. “Missing documentation stemmed from inconsistent program office approaches to data entry, confusion on some items, and a lack of system monitoring by the Office of Policy for data quality. Interviewees said ADP training could be improved, and we found that resource constraints, staff unavailability, and competing demands have not allowed time to conduct formal, in-person training for several years.”

The OIG recommended annual reinforcement of compliance with the rulemaking process, as well as further stakeholder query into the “moot” designation. The EPA should also better define major regulatory decisions and consult with EPA staff on training adequacy, it states.