Updated rules are intended to replace old rules. That’s obvious, right? And more than likely, those updates occurred because the new rules improve on the old rules in some way – they’re more rigorous, or more fair, or based on better science, or something. Otherwise, why rewrite them?
Although that might seem like an administrative truism, that’s not what the office of state Comptroller Tom DiNapoli found in an audit of the Department of Environmental Conservation’s Air Pollution Control Permit Program: A number of polluting facilities don’t have to comply with the latest rules and are still allowed to operate under the old ones. And who’s most likely to be hurt by this patchwork of enforcement? Surprise – it’s the same people who have always been hurt most by polluters.
Why don’t the same rules apply to everyone? Consider permit renewals: Many facilities aren’t being held to current standards because as long as they renew their permits 180 days before they expire, they can keep operating under the terms of the original permit. As the audit noted, “The longer the permits remain extended, the greater the risk that facilities are not operating under requirements that align with the most up-to-date air pollution control standards.”
The audit highlighted, in particular, standards that have to do with “environmental justice” areas — low-income communities, many of them communities of color — that have historically borne more than their share of environmental damage from pollution. Since 2003, the law has required facilities in these areas to seek public participation in the permit review process and make relevant documents easily available to nearby residents. The idea was to provide the people who would potentially feel pollution’s impact the most with the information they need to advocate for their health and their communities.
The comptroller’s audit reviewed 71 facilities in environmental justice areas around the state and found that 55 of them are exempt from these requirements. For most of them, it’s because they’ve had their permits for more than 20 years and are therefore not required to comply – and they have remained exempt even when renewing. Other facilities were not in environmental justice areas in 2003; even though the criteria have been updated since then, the DEC is still using the old maps. What’s more, although DEC policy requires the agency to update these rules as needed, the policy hasn’t changed since its establishment in 2003.
Presumably the point of having potential polluters register with the state is so someone can hold them accountable and make sure they’re meeting the applicable standards. How do perpetual renewals serve any part of DEC’s mission to protect the environment?
Using old maps isn’t helping, either. With this many holes in the regulations, it’s no wonder that pollution can pass right through.
The audit concludes that, among other recommended changes, DEC needs to get permits processed faster, slash the number of facilities operating on outdated permits or permits with no expiration date, and pay better attention to environmental justice requirements. DEC blamed staffing shortages for its reduced oversight. The agency also noted that a change to how permit extensions operate would require legislative action. OK then, let’s aim for that. Because when our best standards aren’t enforced, we’re sabotaging our own goals — and that will have consequences for the environment and public health, everything from acid rain to forest health to asthma to cancer.
DEC says it’s always looking to improve its environmental justice work and make its own systems work better. We have no reason to doubt that. Good thing is, these seem like obvious fixes — so obvious it shouldn’t take a nudge from the comptroller to get it done.
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