DNR defaults to “Fight Mode”
I never understood why so many politicians and government employees don’t trust business people until my wife explained it to me. People frequently project their own behavior and personality traits onto others. In business, most decision makers trust others because they themselves are trustworthy, so they project that trust onto others.
Likewise, politicians don’t trust business people, because many of them see themselves as being untrustworthy. (Think of all the broken campaign promises…)
Here’s a recent example of what I am talking about: a planner at the DNR refused to trust us — in spite of our offer of voluntary compliance — and tried to impose on us a “rule” that did not exist.
[Editor’s Note: Wall is a developer and owner of T. Wall Properties, the “us” referral.]
At our West End project in Verona, where we are planning more than 1,000 parking stalls, the DNR has authority over approving construction of those stalls under Section 411 of the air quality standards — what is called an Indirect Source Permit. Unfortunately, the rules never were written to accommodate phased construction, and we intended to stay under 1,000 stalls in the first phase.
But never mind that technicality. We notified the DNR anyway, and since we didn’t hear any objections to our starting the first phase without the permit, we started construction.
Of course, the DNR did object after we began construction, and the young staffer there immediately defaulted to threatening us with not just a violation, but criminal prosecution as well. He claimed the DNR had a legal opinion backing up their claim of jurisdiction. Of course, we called his bluff and asked to see the legal opinion.
Funny, he never delivered one.
The DNR was looking to enforce what they refer to as “Tier 3” standards for air quality for earthwork equipment, which would require each piece of equipment to be retrofitted with thousands of dollars of special equipment to capture emissions, thereby reducing air pollution. Sounds reasonable, except that Tier 3 standards are not required — they’re only voluntary. That’s right: the DNR staffer was trying to require compliance with voluntary standards.
We told the DNR that we were interested in some kind of voluntary compliance as a pilot program, but in spite of this, they jumped on our backs and rode us hard, threatening to issue a cease-and-desist order (for their non-existing rule).
What the DNR did not know is that our contractor had contacted the Wisconsin Manufacturer’s and Commerce Association and the Associated General Contractors, and both of those groups were salivating at the opportunity to go to battle with the DNR over the issue in order to secure a legal precedent. So while the DNR is pounding on us on one side, our contractor was lining up the troops to fight the war on the other side (kinda like Putin placing his troops on the border of Georgia — just waiting for an excuse to jump in.)
Also, unbeknownst to the DNR and being good stewards of the environment that we are, our contract with our contractor required the contractor to comply with the voluntary Tier 3 standards because we are trying to become a “green” developer.
Now, admittedly the DNR wanted the contractor to retrofit all his equipment, whereas we only were requiring the retrofitting of the two primary pieces of equipment that were actually in use on our site at the time.
The result was, we felt the staffer at the DNR was taking advantage of our good faith effort at a voluntary guideline.
Eventually a more senior and experienced legal manager at the DNR told the junior staffer to back off, as he didn’t have enforcement authority.
In the end, our contractor retrofitted the equipment to voluntarily comply as originally planned, and the DNR is leaving us alone. Of course, there is the risk that they may try to stick it to us on some future project, but I’ll cross that bridge then — especially since I have since learned that the DNR itself, this past summer, ordered two pieces of earthwork equipment without, that’s right, without the very same air pollution controls that they demanded from our contractor!
Only later, after our battle with them, did they amend their order to have the equipment installed. I was told the reason the DNR didn’t order pollution controls in the first place was “because it was too expensive.”
And that, my friends, is the unfortunate lesson. The DNR could have used our interest in being a good corporate citizen to their advantage, had they taken a cooperative, “win-win” approach to this matter and set up a pilot program with us, but they just naturally distrust business people.
So let me say it loud and clear: Attention DNR: Not every developer is out to take advantage of you. We live here and we want clean air, too. And how come you didn’t take any action against the University of Wisconsin coal-fired power plant’s repeated air quality violations that went on for decades until you were sued?
Because you’re too busy squashing a gnat, instead of focusing on the elephant in the room.