Fight over state air pollution rights comes to public

By David Steinkraus

Wednesday, January 28, 2004 12:59 AM CST

During the controversy over expansion of the We Energies power plant in Oak Creek there was a more distant battle happening with wider implications, and that battle is now coming before the public here.

The state Department of Natural Resources wants to change the rules that govern when polluters, such as factories and electric utilities, must go through a formal review to add or change equipment in their facilities. It's called "new source review," and the changes in Wisconsin follow similar changes in federal rules proposed by the Bush administration through the U.S. Environmental Protection Agency. This is where the controversy started because states must make their rules match the federal ones.

Environmental groups such as the Sierra Club and Clean Wisconsin don't like either the federal rules or those proposed by the Wisconsin DNR. Both sets of rules will open the way for more pollution, they say. Business likes the proposed rules.

For example, one proposed change says that the operator of a pollution source can pick which 24-month period becomes the basis for calculating its baseline emissions, and this baseline calculation may exclude any illegal emissions made during that time.

The federal rules create six loopholes through which polluters may slip, said Bruce Nilles, senior Midwest representative for the Sierra Club. He said his organization was invited to participate in the Wisconsin rule-making process but declined because it believes the rules to be illegal - and it's suing.

Wisconsin is also involved. With 12 other states it filed a federal lawsuit to halt implementation of the EPA rules. On Dec. 24, a federal appellate court put a stay on one of the rules because of its potential for harm. Earlier that month, Wisconsin and other states filed a federal Freedom of Information Act request for White House and agency documents related to the rule changes.

If the new source review rules are eventually ruled illegal, then everyone in Wisconsin will have wasted time on the state's parallel rules, Nilles said. What the Sierra Club wants, first, he said, is for the state to slow its rush toward conformity and wait for the courts to rule. "And there's no urgent need to change these rules. They've been in place for 30 years."

By the state's own estimate, changing the new source review rules will result in an additional 3,000 tons of air pollution emissions per year, he said. And that's additive, he said - 3,000 tons in the second year added to 3,000 tons from the first year.

"We're pleased with the direction that the department (DNR) has moved," said Jeff Schoepke, director of environmental policy for Wisconsin Manufacturers & Commerce, one of the state's largest business advocacy groups. Wisconsin's rules should match the federal ones as closely as possible, he said.

For example, he said, one issue which WMC is still working on with the state concerns how air emissions are adjusted for demand. A company that has greater demand for its products needs the ability to increase production - which increases emissions - without becoming trapped by an emissions limit, he said.

For a long time, EPA rules were full of traps, he said. Requirements for paperwork and analyses are a disincentive for companies to modernize their equipment because it's the right thing to do, because the equipment needs to be replaced, or because a company is preparing for more stringent emissions rules in the future, he said.

Schoepke said changing the rules doesn't automatically mean pollution will increase. Other regulations in the works - on ozone emissions for instance - have the potential to far outweigh any pollution increases brought about by changes in new source review, he said.

While Wisconsin is allowed three years to conform its rules to the EPA's, Schoepke said, other states around us had to do it by March 2003, and that gives those states and their businesses a competitive advantage. If a company has plants in Wisconsin and another state with relaxed rules, he said, which plant does it expand? "They're going to grow where they have less permitting."

"New source review is a law that protects the public from excessive air pollution at large-polluting facilities," said Marc Looze of Clean Wisconsin. "And while some clarity may be needed, what is not needed is the type of sweeping rollbacks that will now allow more pollution from facilities across the country."

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