Nearly a decade after US Steel filed an application for renewal of its Clean Water Act discharge permit, the Indiana Department of Environmental Management signed off on the final permit in January. The road leading there was a pretty bumpy one for IDEM. After years of taking heat for their delays in issuing a host of such permits, IDEM issued the US Steel draft permit in 2007. The draft was immediately hit with a barrage of negative comments from NRDC and other organizations, followed shortly by an order from USEPA blocking issuance of the permit until its serious inadequacies were fixed. Two years later, USEPA finally signed off on the new, improved version, and the public reviews were reasonably positive. Many commenters – myself included – agreed that the permit was better than what we saw the first time around.
So it’s understandable that the narrative in the media, and the public mind, is that the system worked beautifully. The public rose up with one voice to demand environmental protection, and successfully compelled the browbeaten polluter and agency to straighten up and do the right thing. All we need is a script and Julia Roberts.
Well, sort of. As is so often the case, the view from the trenches is a little different. Absolutely, we see some progress. But we also see an agency still resistant to taking public input seriously. And we see a “polluter” in some ways more inclined to listen to us than the agency is.
IDEM obviously did improve the permit after USEPA nixed the first version in 2007 – they had to by law, in order to re-issue it. But in the permitting second go-round in 2009, after USEPA signed off, not a single change was made in response to citizen comments. None. Nada.
Specifically, we told IDEM in both 2007 and 2009 that we were very concerned that the permit did not require disclosure of US Steel’s stormwater pollution prevention plan – the “SWPPP” – to the public. USEPA was not particularly concerned by this, but we were. Stormwater pollution – runoff from site operations that can be heavily contaminated with toxic metals and other pollutants – is a potentially large source of pollution of adjacent waterways, and the SWPPP is the site-specific rulebook for controlling it. But under the permit as written, US Steel would be entitled to lock the plan in a file drawer and never show it to us -- the permit says merely that IDEM can ask to see the SWPPP, and “may” show “portions” of it to the public. We provided IDEM with multiple pages of explanation, including federal legal authority, as to why that’s not really ok.
We expressed a number of other concerns as well. For instance, we were skeptical of IDEM’s convenient conclusion that the “best” technology available for preventing fish deaths at US Steel’s cooling water intakes just happens to be exactly the technology US Steel already has in place. IDEM reached this conclusion without even looking at other technologies that are out there; and despite the fact that US Steel doesn’t even have a fish return system (to put the fish back into the Lake before they’re killed) at all of its intake structures. Additionally, we were concerned that the permit loosened of a lot of monitoring requirements, allowing US Steel to sample its discharge of harmful pollutants less frequently than under the previous permit.
I did not expect an overwhelmingly positive response by IDEM to our concerns, having been through multiple rounds with them not only on the US Steel permit but also on the much-maligned air and water permits issued to BP in connection with its refinery expansion. I fully expected that the agency might take a hard line, and reject at least some of our demands for revisions. But even I was surprised when IDEM not only failed to make a single change we had requested, but failed to offer much of anything by way of explanation why not.
In fairness, IDEM’s water program staff were friendly and helpful on a personal level, and did at least give us a verbal assurance at a public meeting that they would post the revised SWPPP after US Steel completes it a year from now (and they posted the existing one on IDEM’s website). But that and $4.25 will get us a cup of coffee at Starbucks. The permit still says what it says.
So it was time to try Plan B. I picked up the phone and called US Steel.
I said: You know, we’re kind of concerned about the permit not making the SWPPP available to us. We don’t think that’s legal or fair. Would you be willing to agree in writing to disclose it to us when you finish it, and notify us of any revisions?
They said: No problem. We’re proud of our work here, and we can’t think of any reason why you shouldn’t be allowed to see how we’re controlling stormwater. And we hope you’ll come talk to us if you have a problem so we can try to work it out.
Agreed, I said.
And two days later, we’d inked an agreement requiring them to disclose the SWPPP to us, and requiring us to discuss any problems before suing them. Done.
Tom Easterly, IDEM’s commissioner, has been telling everyone who will listen that NRDC’s challenges to its permits have been disruptive. But think about it. If our challenges had no merit, then nothing would come of them, and there would be no disruption. Twice now, however, with both the US Steel and BP permits, USEPA has supported our challenges, and sent IDEM’s permits back to the drawing board (once under the Bush administration and once under Obama, for anyone who’s keeping score). And even Mr. Easterly has been compelled to agree that we were right all along. It seems, then, that the real source of the disruption is IDEM’s reluctance to make, on its own initiative, the changes we have called for to bring the permits into compliance with law.
I’m not generally one of those who goes around saying we should run government like a business. But I’m going to say that on this one, if Mr. Easterly wants to make his agency’s permitting process run more smoothly, he should perhaps take a leaf from US Steel’s book.