" Don’t expect protection " (continued) BY ALEX IRVINE

WE DON’T NEED NO STEENKING PRECEDENT

If the recent Flagstaff Lake licensing brouhaha is any indication, no, they don’t. In 2003, Florida Power and Light (FPL) attempted to have Flagstaff Lake reclassified as an artificial body of water (or, if you’re coming at it from FPL’s perspective, "classified according to a 2003 legislative resolve aimed at putting the DEP on the same page as the legislature had originally intended years before"). The reclassification would have allowed the power company to draw water from the lake under much looser ecological standards than those applicable if the lake kept its natural-body designation, making FPL more money during winter months. In November of 2003, reversing at least 10 years of DEP precedent, Gallagher issued an order determining that 24-foot drawdowns of Flagstaff Lake would still keep the lake meeting state and federal water-quality standards. She arrived at this decision despite:

• A 2000 letter from DEP’s Dana Murch to FPL stating that "any drawdown must adequately protect the littoral (i.e. light penetrating) zone and volume of the lake," calculated at 18.7 feet. A 24-foot drawdown would entirely eliminate this zone, which is the engine of a lake’s ecology, and drain 87 percent of the lake’s volume. Gallagher now says that Murch’s way of determining the littoral zone was "an informal policy" trumped by the more formal policies used to determine water quality in the waters below dams.

• A November 6, 2003 warning from DEP scientist David Miller — ironically sent to Murch, who seems to have changed his tune in the interim — that the "drawdown regime specified in the draft results in non-attainment of Class C aquatic life standards."

• A November 10, 2003 letter from the EPA stating that a legislature-proposed change in state water quality standards (or, if you’re FPL, a correction they’d meant to have in place all along) wouldn’t pass EPA muster, and therefore couldn’t be used to recertify FPL’s license.

Gallagher’s solution? Remove references to the legislative proposal and leave the rest of the department order as-is, ignoring the fact that it now proposed relicensing FPL in clear violation of existing water-quality standards applicable to Flagstaff Lake — whether the legislature liked it or not. The Attorney General’s office didn’t buy it; on November 12, 2003, AAG Jon Edwards wrote Murch: "Nowhere in [the applicable statutes] is there a basis to ‘interpret’ existing water quality standards" in the way Gallagher wanted to.

Gallagher went ahead anyway, granting FPL’s certification on November 14. (She now says that EPA never reacted until after she’d made this decision, an assertion contravened by existing documents.) The decision provoked an immediate appeal to the Board of Environmental Protection (BEP), which in April of this year sent the DEP back to the drawing board. The commissioner’s action also drew a stinging rebuke from DEP scientist Dave Courtemanch, who emailed Gallagher that the DEP order "clearly overturns existing written policy, gives no direction for how future decisions will be made, puts into question all past decisions, and personally leaves me questioning my professional worth."

Gallagher answered Courtemanch by characterizing him as "such a valuable member of the DEP" and saying that she considered it her responsibility "to carry out the legislature’s decisions that are voted on and passed" — a sentiment she repeated when talking to the Phoenix.

"There was a difference of opinion within the staff," Gallagher says now. In her view the science staff, including Courtemanch, "didn’t have an idea of where the drawdown should be." Their methods were "an informal policy that had never been passed as a bill," so it was disregarded when the legislature passed its bill. "I chose to go with the legislature and the hydro folks who had a formal method and mandate," even though the decision overturned long-established DEP practice and threw into question the status of a large number of regulated bodies of water in the state.

Why?

"The legislature is the one that decides policy," she says again, "and we’re the ones that carry out that policy."

Environmental groups aren’t convinced this is always a great idea, especially not when the legislative Natural Resources Committee includes people like senator John Martin, whose track record tilts decidedly toward industry, and representative Tom Saviello, who works for International Paper in Jay and according to Ed Friedman "is clearly a lobbyist for IP" on the committee.

THE LITTLE THINGS

Jim Dusch makes the useful point that major permit holders are often not the worst environmental violators; he even suggested that Wyman Auto here in Portland had committed violations more damaging than the average paper mill upstate. That’s an arguable proposition, certainly, but it does bring attention to the smaller battles fought over regulations in towns all over the state.

Kennebunkport code-enforcement officer Brian Shaw, who coined the "don’t expect protection" moniker, says that DEP has broadly failed its responsibilities to police those smaller violators as well. "When you need ’em the most," he says, "they’re there the least."

Shaw deals regularly with the department’s permit-by-rule (PBR) protocol, under which a project doesn’t need a permit if the applicant sends DEP notice of what he wants to do along with photos of the site and a detailed assessment of how the proposed action — for example, a boardwalk across a marsh or a widened driveway along a beach — will impact the local terrain. If the DEP doesn’t respond to the application within two weeks, that’s a tacit approval, and all the applicant has to do is send a photograph of the site when the project is done.

This last step is theoretically to make sure that the actions specified in the application haven’t been exceeded. The problem is that DEP very rarely takes action when such excesses do occur. When they do, usually a citizen complaint is the cause, and often it turns out that the project should never have been permitted in the first place. In one recent example, a local water district in York installed a sewer pumping station in local sand dunes; when residents complained, the DEP found that the pump station was in a flood zone and would be on the beach within 50 years due to natural erosion. Clearly the station should never have been built there, and just as clearly DEP failed to perform its assessment of the permit-by-rule application.

Shaw’s take on permit-by-rule is refreshingly direct: "I think it’s actually a fund-raiser for the DEP."

Do they check on projects afterward, as required in the statutes?

"No."

When a violation is called to their attention, do they respond?

"Normally when they’re down in our town we get a courtesy call saying ‘we’re in your town checking things out,’ asking if we want to come along. It’s not very often we get a call like that."

As a general rule, Shaw says, DEP backs him up verbally when he cites a violator but backs down when the cited party’s lawyer gets involved. Has he ever worked on a case in which the DEP had his back the whole way?

"No."

Asked why the DEP is so reluctant when it comes to enforcement, Shaw points to leadership: "Maybe they’re not getting the support they need from their superiors. You ask five different people there, you’ll get five different answers."

Other code officers echo Shaw’s concerns, and a Portland lawyer who has worked on numerous environmental applications, both PBR and otherwise, says that as a matter of course he tells his clients not to bother filling out certain paperwork "because we know DEP won’t look at it anyway."

This lawyer goes even farther. Often, he says, especially with some large facilities, "DEP issues permits knowing that the facility won’t be in compliance" — and not caring. "They don’t have any interest in enforcing those."

PERMISSION GRANTED

Another tactic DEP takes to address noncompliance is to repermit a facility with looser standards. Since the EPA devolved clean-water enforcement onto the state of Maine in 2001, at least three significant Clean Water Act violators have been repermitted in such a way that their primary violations are no longer violations. The Falmouth wastewater treatment plant was violating copper standards until the DEP conveniently discovered, using what CLF’s Roger Fleming calls "a very liberal interpretation of the dilution factor," that the water it discharged into diluted the discharge faster than it had during their previous license; the Loring Development Authority’s lead limits were hugely increased on the grounds that the water into which it discharged was so hard that it could bind up more lead than had previously been known; and a Downeast fish-scale processor found that it, too, was discharging into a body of water with heretofore unknown powers of dilution.

Maine Rivers’ Naomi Schalit has seen similar actions in the legislature. "We’ve certainly seen with respect to the Clean Water Act that the DEP has in fact lobbied to diminish environmental standards for certain industries," she says, particularly wastewater and paper. "It was quite clear that the DEP was willing to go to bat for industry."

Or DEP can just ignore expired permits. Many large facilities in Maine are operating with permits decades old; if they were repermitted now, they would certainly face more stringent standards. One example uncovered by the CLF is sure to thrill fishermen and other workers in coastal industries: In the entire United States, there are 19 privately owned treatment works (POTWs) allowed by permit to discharge wastewater after only primary treatment. This exemption from secondary-treatment requirements was adopted in 1972 after intense lobbying by marine communities, which argued that the ocean’s powers of dilution mitigated the need for any kind of chemical treatment. In the years since, the vast majority of those facilities have adopted secondary, and sometimes tertiary, treatment as their flows have increased.

Thirteen of the 19 POTWs who haven’t upgraded are in Maine. Most of them are in violation of even their relaxed permitting standards more than half the time. Despite this, the DEP renews their waivers. A group of POTWs even tried to relax marine dissolved-oxygen standards in the most recent legislative session, which would have allowed them to discharge higher concentrations of pollutants into coastal waters. The effort had the full support of DEP, which wrote a bill that was defeated when lobstermen rebelled.

IS MAINE BETTER OFF?

Gallagher thinks so. "I think to the extent that this administration looks at saying ‘Is Maine better off?’, then naturally we certainly follow that. And thus far it’s been my experience that that’s what the administration does."

Alex Irvine can be reached at airvine@phx.com