EPA review of state’s pollution could bring changes

October 9, 2016

Federal regulators plan to spend four days this week in the Madison headquarters of the state Department of Natural Resources paging through files on state enforcement of water pollution laws.

Technically, the U.S. Environmental Protection Agency probe is aimed at determining whether the federal government should take the extreme step of revoking the state’s authority for enforcing those laws in Wisconsin.

But typically states make changes to avoid the embarrassment of being stripped of their environmental authority, said Emily Hammond, a George Washington University law professor who co-authored a study of federal investigations like the one now targeting Wisconsin.

“There does seem to be ... kind of a matter of pride that they would rather keep it in their control rather than have it be taken over by the federal government,” Hammond said.

The “shaming” generated by the threat can motivate elected officials and provide them with political cover to make changes they view as unpopular with some constituents, Hammond and her co-author, Florida State University law professor David Markell, wrote.

“‘Shaming’ was the best word we could find,” Hammond said last week.

“It’s a strange dance, but somehow the threat and the possibility that the state program could be taken over does seem to prompt action,” she said.

Hammond’s 2013 study and EPA records show that in the last 30 years the EPA has investigated withdrawing states’ pollution authority at least 68 times as a result of petitions filed by citizen groups.

The EPA has withdrawn authority from states, but never as the result of a petition-driven investigation, Hammond and Markell found.

They said petitioners were often frustrated because it took an average of more than four years to resolve complaints. The EPA website last week listed three still pending more than 15 years after they were filed.

So far, the Wisconsin case is moving more quickly than most, probably because it is based largely on previous citizen complaints and EPA scrutiny that produced a 2011 list of 75 water protection deficiencies the state was directed to fix within two years, Hammond said.

The EPArecentlysaid it was satisfied that six deficiencies were remedied. It listed 11 in the early stages of rulemaking, and 18 as still needing “future” action, including five fixes DNR implemented without formal approval.The remainder are in a late stage of rulemaking or review.

Another factor that could help the EPA move quickly is a state audit released in June documenting shortcomings in DNR regulation of wastewater released by industry, sewage treatment plants and animal feedlots, she said.

EPA spokeswomen in Washington and the agency’s regional office in Chicago didn’t respond when asked if investigators had reviewed the audit.

Pollution permit review

Starting Tuesday, a team of four EPA employees will scrutinize files related to 47 water pollution permits the DNR has issued, Chicago-based spokeswoman Anne Rowan said.

The files can run into thousands of pages, including engineering reports and technical documents with correspondence that refers to complex regulations and laws. Rowan said file reviews are done by attorneys, environmental scientists and engineers at the direction of the regional office’s water pollution discharge branch.

A DNR spokesman described the EPA review as standard procedure.

“We look forward to meeting with the EPA representatives and talking with them about how we take our obligations under the Clean Water Act seriously and are taking steps to address the various issues before us,” spokesman Jim Dick said.

Hammond said petitions for withdrawal of federal authority are considered a last resort by the conservation groups that most frequently file them.

Laws, budgets scrutinized

The Wisconsin petition was filed a year ago by the Madison-based environmental law firm Midwest Environmental Advocates and 16 state residents.

The nonprofit has taken the DNR to court over water pollution permits issued to concentrated animal feeding operations (CAFOs) like the ones in Kewaunee County where about one-third of tested drinking water wells are contaminated by bacteria associated with manure.

The EPA has issued a seven-page plan for investigating issues MEA raised in its petition.

In addition to reviewing permits for adherence to federal laws limiting pollutants, the EPA is examining state laws and state budget decisions that MEA says have prevented the DNR from doing its job.

Wisconsin law shuts citizens out of decisions on enforcement of anti-pollution laws by allowing the state to finalize a negotiated settlement with polluters without opportunities for public comment on the penalties, MEA attorney Tressie Kamp said.

Another law limits challenges to the terms of pollution permits.

It has an especially strong effect in sparsely populated rural areas around animal feedlots that produce millions of gallons of manure annually, Kamp said. Residents can’t challenge provisions of a pollution permit they think threatens water quality unless five or more people sign on.

Another statute, Act 21 of 2011, rolls back the authority of state agencies like the DNR to write administrative rules that spell out details of how laws are put into action.

Act 21 prompted the DNR to stop considering the cumulative impact of high-capacity wells that have been linked to lakes and streams drying up.

The law also prompted the DNR to disregard an administrative law judge’s order calling for limits on the size of a CAFO and monitoring of groundwater for pollutants because those specific permit conditions aren’t listed in state law.

And rulemaking now usually takes years because of business-impact surveys that must be conducted and new powers given to the governor to approve or prevent adoption.

The DNR hasn’t used a faster emergency rulemaking option to speed up action on the deficiencies the EPA listed in 2011, and the department has generally assigned higher priority to other matters, Kamp said.

Hammond said state laws that aren’t consistent with federal requirements designed to encourage citizen participation have often been dealt with swiftly by the EPA, with blunt letters written to elected officials.

EPA officials sometimes meet with representatives of the governor’s office or the state attorney general when changes in state statutes are needed, Hammond said.

Spokesmen for Gov. Scott Walker, Attorney General Brad Schimel and the state Department of Justice said their offices haven’t been in communication with the EPA.

“DOJ has not been communicating with EPA and will not be meeting with them,” Schimel’s spokesman Johnny Koremenos said.

State Senate Majority Leader Scott Fitzgerald, R-Juneau, hasn’t heard from the EPA, but he is open to making statutory changes if they are needed to make state laws consistent with federal law, his spokeswoman Myranda Tanck said Friday.

She said Fitzgerald wouldn’t comment on the DNR budget before seeing Walker’s proposal, which is due early next year.

Staffing a problem

The state audit of DNR wastewater programs found that inadequate staffing was behind many problems. Elected officials have eliminated 15 percent of the department’s full-time staff in the last two decades.

Last month, DNR Secretary Cathy Stepp proposed shifting the equivalent of four positions to CAFOs, saying it would allow the DNR to properly regulate the feedlots.

The plan that was sent to Walker’s budget office proposed a 2.1 percent budget cut and didn’t address problems the audit found in limits the DNR places on industrial and municipal

wastewater pollution or in enforcement of those limits.

The EPA considers its current investigation informal. The last time the state faced a loss of authority over a pollution program, the EPA won the cooperation of Wisconsin’s elected officials only after putting them on formal notice.

In 2002, conservation groups petitioned the EPA about flaws in Wisconsin’s air pollution program.

In that case, the EPA and conservation groups said elected officials had failed for at least six years to follow federal laws requiring that businesses be charged air pollution permit fees that covered the state’s costs.

Without adequate revenue, the DNR couldn’t hire enough staff and businesses weren’t being held to legal limits for harmful air emissions.

“Because of the threat of (loss of authority), the Legislature did respond by increasing fees,” said George Meyer, who was DNR secretary at the time. “We used this before the Legislature to show what was needed.”

The EPA issued a formal Notice of Deficiency, which carried the threat that the state would lose federal highway funds in addition to withdrawal of its authority over the air pollution program.

It was one of four times that citizen petitions have prompted initiation of withdrawal proceedings, Hammond said.

Fees were increased in the budget enacted in 2005.