States Warn of Furloughs, Permitting Delays If Federal Government Shutdown Continues

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By Andrew Childers and Amena Saiyid  

Oct. 8 -- Some state environmental departments have furloughed employees and warn that permit reviews could be delayed due to the federal government shutdown.

The shutdown has delayed federal grants that states use for partial funding of many of the environmental programs delegated to them by the Environmental Protection Agency. Without those funds, some states are reducing staff hours, and others said permitting delays and other impacts could become more severe as the shutdown continues.

Additionally, the shutdown means the EPA is not reviewing and approving state implementation plans that local regulators need to administer environmental regulations or providing state agencies with needed modeling and advice, state and industry representatives said.

The shutdown has also halted the EPA's enforcement actions and could further delay its carbon dioxide performance standards for new power plants.

Three States Furlough Employees

“The main impact we're seeing is states that are furloughing their employees or reducing them from full time to something less because of the lack of federal funds that are used to support them,” Steve Brown, executive director of the Environmental Council of the States, told Bloomberg BNA Oct. 7. “It's varying from state to state, and it can change almost daily.”

The Wyoming Department of Environmental Quality, North Carolina Department of Environment and Natural Resources, and Arkansas Department of Environmental Quality have already furloughed workers as a result of the shutdown.

Wyoming has reduced staffing hours for 126 positions--nearly half of its environmental staff--with the air quality, water quality, and hazardous waste reductions taking the largest hits, Deputy Director Nancy Nuttbrock told Bloomberg BNA Oct. 7.

Furloughed employees are reducing their work week by the percentage that their position is funded by federal grants. That means most affected employees are being furloughed one or two days a week, and Wyoming is trying to moderate the impact to its various programs, Nuttbrock said.

“We're certainly going to make adjustments to the best of our ability, given our remaining staff and our staff hours to minimize those effects,” she said.

On the other hand, North Carolina said it has had to furlough only four employees, while Arkansas initially informed 85 people that their hours would be reduced, according to ECOS.

State representatives said a short government shutdown would not significantly impair their operations, but they expressed concern about their ability to manage a longer-term budget impasse.

“Many states told me this won't be a problem if this is a week or so,” Brown of ECOS said. “Many states told me that once it gets to be two weeks or a month, it becomes a real problem.”

States Lack EPA Guidance, Modeling

State and local air pollution regulators are also missing guidance from the EPA on implementing regulations during the shutdown.

The National Association of Clean Air Agencies (NACAA) has been forced to cancel its weekly calls with agency staff where state air pollution regulators were able to seek guidance on implementing Clean Air Act regulations, officials said.

“We are constantly relying upon federal guidance and federal modeling, data systems and just daily interaction with the regions with whether certain strategies being deployed at the state and local level are consistent with the EPA rules,” NACAA Executive Director Bill Becker told Bloomberg BNA Oct. 7.

Senior EPA officials also missed the Water Environment Federation's WEFTEC conference.

Chris Hornback, senior director of the National Association of Clean Water Agencies (NACWA), told Bloomberg BNA Oct. 8 that “the regulated community is getting no updates, etc., from them and no opportunity to interact with them on critical issues.”

Adam Krantz, government and public affairs managing director for NACWA, said there have been no reports of delays in receiving funds from the state revolving fund programs.

“So far, it seems we are not deep enough into the closure to have any effects,” Krantz said.

Permits Could Be Delayed

Margaret Peloso, an attorney at Vinson & Elkins LLP, told Bloomberg BNA the shutdown could particularly delay air pollution permits in states such as Texas where the EPA retains authority to issue prevention of significant deterioration permits for greenhouse gas emissions. Texas retains the authority to issue permits for conventional pollutants, putting industries in that state on a two-track permitting system.

“At this point, I know of a few facilities in Texas where [the Texas Commission on Environmental Policy] has issued air permits for conventional air pollutants, but EPA [greenhouse gas] permits have not issued,” Peloso said in an Oct. 8 e-mail.

The permits, however, can take up to a year to process, and a short delay would not be significant, she said.

The U.S. Army Corps of Engineers reported no delays in issuing and reviewing dredge-and-fill permits under Section 404 of the Clean Water Act.

Doug Garman, spokesman for the corps' regulatory program, told Bloomberg BNA Oct. 8 that the program has been unaffected so far by the shutdown because it is operating under multiyear, non-expiring funds that were provided by Congress.

“We are, however, closely monitoring funds and requirements to determine with our mission partners which projects and programs can continue, and for how long,” Garman said.

Jeanne Christie, executive director of the Association of State Wetland Managers, said she expects that interagency meetings between the corps and the EPA involving large and complex dredge-and-fill permits and wetlands mitigation projects will probably be postponed or canceled. However, she said it will be “business as usual” in states that handle the majority of nationwide permits and smaller permits that make up the bulk of 404 permits.

“One week is not a long enough time to see impacts. The impacts will be felt as time goes on,” she said.

Christie said the fall season marks the end of the building season, with builders seeking to gain individual permits.

However, Thomas Ward, vice president for the National Association of Home Builders' legal services and litigation division, told Bloomberg BNA that he had not heard from anybody yet.

“These permits take so long anyway. We may not feel it in a week,” he said.

The NAHB is holding a fall board meeting in Colorado that begins Oct. 9.

“If anything, that's where we will hear from our members about the impacts,” Ward said.

EPA Enforcement 'Stopped.'

Adam Kushner, a partner at Hogan Lovell LLP who was director of the EPA Office of Civil Enforcement until December 2011, told Bloomberg BNA Oct. 7 that “enforcement of federal environmental laws has stopped; meetings have been postponed if not canceled.”

The Office of Civil Enforcement, which handles the majority of enforcement cases, cannot do its work because “most of the office has been deemed nonessential,” he said.

According to an EPA contingency plan, none of the 804 employees of the Office of Enforcement and Compliance Assurance were exempted from the shutdown, although 182 enforcement staff members received exceptions to work in the event of emergencies.

Sen. Barbara Boxer (D-Calif.), chairman of the Senate Environment and Public Works Committee, and other Democratic senators said Oct. 8 they were concerned that the shutdown was affecting the EPA's ability to enforce laws. Boxer said the shutdown means there “is not a single EPA inspector on the ground” in California (see related story).

Shutdown Halts Greenhouse Gas Rules

The shutdown is also holding up the EPA's proposed new source performance standards for greenhouse gas emissions from new fossil fuel-fired power plants. The agency released the proposed rule Sept. 20, but it has not yet been published in the Federal Register, which would begin the public comment period .

Regulating power plant emissions is the centerpiece of President Barack Obama's plan to address climate change. He has instructed the EPA to propose comparable carbon dioxide standards for existing power plants by June 2014, but an extended shutdown could put that timetable in jeopardy, Peloso said.

“This will certainly introduce a delay in the rulemaking process; however, at this point in time it is not possible to judge the significance of this delay,” she said.

The EPA has also scheduled a series of public forums in advance of issuing a proposal to regulate carbon dioxide from existing power plants. The sessions are scheduled to begin Oct. 15 in Boston, but a prolonged shutdown could force the agency to revise its schedule .

 

To contact the reporters on this story: Andrew Childers in Washington at achilders@bna.com and Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: John Sullivan at jsullivan@bna.com