Tallahassee — Florida’s top environmental official contends that federal Clean Water Act conflict of interest disqualification does not apply to him despite strong evidence to the contrary, according to documents released today by Public Employees for Environmental Responsibility (PEER) and the Florida Clean Water Network. The U.S. Environmental Protection Agency is deciding whether Herschel Vinyard, Florida’s environmental secretary, must recuse himself from all water permit and standards actions because of his deep industry ties at the moment state-federal tensions on these very issues are flaring up.
On February 23, 2011, PEER and Florida Clean Water Network filed a legal complaint with EPA that Vinyard and another top appointee should be legally barred under a Clean Water Act provision forbidding appointment of any state decision-maker on pollution discharge permits in federally delegated and financed water quality programs who “has during the previous two years received a significant portion of his income directly or indirectly from permit holders or applicants for a permit.” The complaint cited Vinyard’s tenure as director of operations for BAE Systems Southeast Shipyards where he was involved in its permits for its treated wastewater as well as its other regulatory affairs. He was also the chairman of the Shipbuilders Council of America, representing 40 companies operating 100 shipyards.
In an April 8, 2011 letter, EPA Regional Counsel Mary Wilkes wrote that if the groups’ contentions are correct Vinyard would have to create an “irrevocable delegation” of water quality duties to another state official for at least two years. She added that “The person with the conflict of interest must relinquish any authority he or she may have to perform other acts necessary to administer the program (including, for example, implementing water quality standards, and establishing waste load allocations and total maximum daily loads)” – thus totally sidelining Vinyard from his self-proclaimed principal area of expertise.
In a May 2, 2011 reply to EPA, DEP General Counsel Thomas Beason argued that Vinyard’s direct regulatory experience was not of sufficiently great duration or depth. Beason went so far as to assert that Vinyard was only employed with BAE Systems Southeast Shipyards AMHC, Inc. for the two week period during which Governor Scott appointed Vinyard to head the Florida DEP. In addition, Beason challenged EPA’s “overly broad interpretation of the conflict of interest section” maintaining that Vinyard would only be barred from issuing permits but could still run Florida’s overall water quality program.
In a sharp rebuttal filed on May 20, PEER and Florida Clean Water Network detailed Vinyard’s extensive direct involvement with permit matters, and called the DEP response a “clear effort to rewrite history.” The groups also point to Governor Rick Scott’s introductory press release on Vinyard touting the exact experience that Vinyard now wants to discount.
“Governor Scott picked Vinyard precisely because of his industry record – a record that disqualifies him to oversee the permits he used to seek,” stated Florida PEER Director Jerry Phillips, a former DEP enforcement attorney. “You can’t have it both ways: either the Governor was given a bogus résumé for this guy or Vinyard is now trying to run away from his past.”
This flap occurs as the rigor of state water quality standards is under assault from federal courts and from EPA itself. Florida vigorously opposed stiffening federal oversight and Vinyard occupies a key slot in this struggle.
“The State of Florida has thumbed its nose at the Clean Water Act for many years, but Rick Scott putting a polluter’s lawyer in the top position at DEP is beyond flippant, it’s more of a middle finger at the law of the land.” said Linda Young, Director of the Florida Clean Water Network.