Paring the Pile
The DNR Digs Out From Its Air Permit Backlog
For good or ill—there’s
no question it’s a mix—Wisconsin is serious and
energetic when it comes to environmental regulation. Often debated,
the focus of its regulatory efforts assumed a higher profile
in February, as two sobering documents arrived in a single week.
The first was a “Notice
of Deficiency” from the U.S. Environmental Protection
Agency. It warned that the Wisconsin Department of Natural Resources
(DNR) “must remedy deficiencies” in its Clean Air
Act enforcement within two years or risk losing authority to
operate its own program.
Among several problems the
EPA said need fixing to avert a federal takeover was the failure
to issue regulatory permits to emissions sources within the
time prescribed by the Clean Air Act. This federal notice hadn’t
much more than arrived when the state’s Legislative Audit
Bureau released a report one year in the making and announcing
similar findings.
Simultaneously devastating and
matter-of-fact in its assessment of air program management,
the nonpartisan and nationally respected Audit Bureau did not
question the DNR’s vigilance so much as beg the question
whether things the agency wants to do may get in the way of
what it’s supposed to do.
Trapped in the 20th Century
Complaints about difficulty
complying with government regulation are nothing new, so it’s
a bit ironic that the states have not exactly moved at the speed
of light complying with regulatory obligations passed on by
the federal government. What the Audit Bureau found in the DNR
air permit program exemplifies the problems of an agency lagging
years behind a timetable set by federal law—problems that
evidently are far from unique.
As of June 30, 2003 (the
end of the period covered by the Audit Bureau’s examination
of DNR air management programs), only six states had completed
issuance of major emissions source permits required by March
1998 under the Clean Air Act. Only Arizona, Massachusetts, New
Jersey, Nevada, and Rhode Island had slower issuance rates than
Wisconsin, which had completed just over 64 percent of its required
permits.
The DNR points out that
in the final month of the audited period, it launched an Air
Permit Improvement Initiative (APII) that carved the backlog
from 210 major permits (of 590 required) to 148 by the end of
2003. The program is said to be on schedule to eliminate this
backlog by year’s end.
The department says it’s
accomplishing this with a reduced staff. In a written reply
to the audit report, the DNR says its air management program
“actually lost 20 percent of its staff resources”
between 1993 and 2003, citing a loss of 35 full-time positions
during the past six years.
Last year’s state budget
cuts alone accounted for the loss of 11.5 full-time positions,
despite which the DNR is “rapidly moving forward to address
all of the recommendations in the [Audit Bureau] report,”
the reply said.
Nevertheless, Wisconsin Energy
Cooperative News wondered if efforts to strengthen the state’s
sometimes-precarious electric reliability had been adversely
affected by permit problems. Our inquiries brought a rather
surprising response.
Sometimes the Tortoise Wins
If electric utilities take
most of the flak for air-pollutant emissions, they get some
consolation by avoiding the biggest problems with slow permit
programs. At least that’s part of what’s indicated
by answers this magazine obtained when it asked utility people
if they were aware of specific energy-related projects being
affected by permit delays.
Kathleen Standen, environmental
and regulatory manager for Milwaukee-based WE Energies, pointed
out that her company has an air permit in hand for all three
units of its ambitious Power the Future project, a nationally
prominent venture into clean coal-fired generation. The first
of those units is expected to come on-line in 2007.
Dairyland Power Cooperative may
purchase some of the output of Power the Future, and the co-op
is also in talks with Green Bay-based Wisconsin Public Service
Corp. (WPS) for either a power-purchase agreement or part ownership
in Weston Unit 4, a planned clean-coal facility on an existing
WPS power plant site near Wausau.
Ed Newman, WPS director of environmental
services, told us, “not everybody is experiencing problems”
with air permits. “Weston 4,” he said, “is
progressing relatively smoothly and certainly within the expected
time frame for a large project such as this one.”
Newman had this insight into why
the biggest targets of air regulation seem to be avoiding trouble
with their permits:
“The utility industry plans
four, five, ten years into the future and can accommodate a
lengthy process,” he said. On the other hand, “some
non-monopoly, competitive industries that need a quicker turnaround
time on projects can have trouble.”
The DNR’s Keith Pierce,
team leader for the APII, agreed that Newman’s statement
seemed reasonable.
WE Energies’ Standen cites
three things as “important in working with the [DNR’s]
Air Bureau: accessibility, timeliness, and consistency”
relative to other projects around the state. Timeliness matters
because “not meeting a permitting schedule can kill a
utility project.”
Consistency counts for another,
more subtle reason. “One of the things most energy projects
face is project opponents who will appeal the DNR permits after
they’re issued,” Standen said. “The whole
process needs to be very deliberate and comprehensive because
while we certainly want a permit issued in a timely manner,
in the end we want a permit that’s going to stand up to
the expected appeals.”
No Free Rides
The lack of a permit does not
mean an emissions source can operate outside regulatory controls.
“There are certainly regulations
they have to comply with; typically they’d be minor ones,”
says Keith Pierce. Minor, because a source operating without
a permit is overwhelmingly likely to be a small emitter. “The
permit is a service to them, though some don’t see it
that way,” he says. Pierce explains that permit holders
have to pay a fee, but the permit spells out the rules more
clearly and helps them know exactly what they must do to comply
with state and federal regulations.
And if non-permitted emissions
sources get no free ride, neither does the DNR in the Audit
Bureau’s report.
At nearly 100 pages including
the DNR’s nine-page reply, the audit report said department
staff “were unable to provide reliable data on the number
and type of pending and issued permits,” adding, “After
more than five months of discussions and assistance from [the
Audit Bureau] in improving the accuracy of agency databases,
we obtained the best information available on DNR’s air
permits.”
Among the consequences of those
data problems were eventual identification of a total of 270
facilities that either were required but failed to apply for
operating permits, made applications that were not acted upon,
or had not applied for permits but had reported emissions of
regulated pollutants. According to the audit report, the DNR
could not explain any of those situations.
While clearly failing to meet
key obligations under federal law, the department attempted
to go beyond federal requirements in other areas, the audit
found. The report said the DNR regulates 293 more “hazardous
air pollutants” than federal law directs.
It also noted that of the grand
total of nearly 1,100 operating permits backlogged past their
presumed 1998 issuance, nearly 700 were for minor emissions
sources the state opted to regulate despite the absence of any
federal requirement.
In February 2003, Carol Roessler
(R–Oshkosh), Senate chair of the Legislative Audit Committee,
publicly scolded the DNR after some of its personnel allegedly
tried to lobby the Audit Bureau against examining the air management
programs. Little more than a year later, the department’s
reply to the audit report praised the bureau and called the
exercise “constructive and informative.”
Asked to comment for this story,
the lawmaker who originally requested the audit, Senate Energy
Committee Chair Robert Cowles (R–Green Bay), indicated
the Legislature might not be finished with the issue.
“The air management program
needs to get its act together,” Cowles said. “It
is not yet clear to me if this needs a legislative fix or if
all the improvements need to be done in-house. What is clear
is that management has some serious problems to address.”—Dave
Hoopman
When Less is More…
The last day of February, a Green Bay Press-Gazette
headline proclaimed, “State board pares list of regulated
substances.”
Recent calls for regulatory reform
have been well-publicized, so a reasonable person might conclude
Wisconsin was about to stop regulating some significant number
of things.
Wrong.
To be strictly true, the headline
could have read, “State board pares list of regulatory
additions.” To describe what really happened, it should
have read, “State to regulate 103 more substances.”
The substances in question are
those regulated by the Department of Natural Resources as hazardous
air pollutants. There are currently 444, and the Natural Resources
Board recently finished lengthy deliberations over adding another
144. A couple of years ago a state lawmaker whose district includes
grain-handling facilities complained that flour was on the proposed
new list of hazardous pollutants.
In February, the NR board approved
listing 103 of the proposed 144 new substances, bringing the
total regulated to 547.
But as so often happens with the
magic of headline-writing, tighter environmental regulation
was made to appear as a relaxing of standards. Another example
is the recurring story that says the federal government has
proposed “weaker” mercury emission standards, though
the pending 70-percent reduction would be the very first federal
control applied to airborne mercury.
Legislative oversight committees
are expected to bless Wisconsin’s new hazardous air pollutant
list, which has already been criticized for being too short
even as it grows longer—by 23 percent.
