Regulation and IDEM and Energy & Environment and Environment and Environmental Policy

New enforcement rules worry environmental activists

August 28, 2010

New guidelines spelling out when and how state employees should cite companies for environmental violations are fueling activists' concerns that they could lead to "slaps on the wrist" for Indiana polluters.

In a memorandum obtained by the Post-Tribune of Merrillville, the Indiana Department of Environmental Management's top attorney asks agency staff to change how they cite companies for violating the state's water pollution law.

In the July memo, assistant commissioner David Joest with IDEM's Office of Legal Counsel and Criminal Investigations tells staff "it is not necessary to cite every possible statute and regulation that could be violated in a given situation."

Instead, he writes that it is "sufficient and preferable" to select and cite only the "most apt legal" requirements.

"I believe that the practice of citing the same violation in multiple ways serves no useful purpose and has contributed to slowing down the enforcement process and creating unnecessary work," Joest wrote.

Environmental activists who disagree with that assessment say it could lead to lower penalties for polluters.

Kim Ferraro, attorney with the Legal Environmental Aid Foundation of Indiana, said that for each violation IDEM cites, a potential penalty amount is triggered. She said IDEM ends up with legal agreements that are "slaps on the wrist" if the agency cites fewer violations before the state begins negotiating a settlement with a polluter over its discharges.

Ferraro said the new guidance could also delay IDEM from stopping violations that could pose a danger to human health and the environment. She cited as an example the recent case where a scalding-hot discharge from a Starke County mint farm into a nearby ditch killed a dog that was essentially boiled alive in 190-degree water. The dog's owner was also burned.

Ferraro said IDEM is handling the Aug. 7 incident as a permitting issue but should have considered it a spill, which would have triggered the agency's emergency crew to immediately come out to stop the discharge or solve the problem.

"Here is a company that doesn't have a permit that violated the spill rule as well as Clean Water Act requirements for temperature. As a result, it killed a dog and caused third-degree burns in a human. It's an imminent threat and actual harm," Ferraro said.

She said the scalding discharge would have been stopped the next day if IDEM staff had followed its earlier enforcement guidance.

IDEM spokeswoman Amy Hartsock said the mint distillery discharge was not addressed as a spill because it "did not meet the legal definition of a 'spill' under IDEM's spill rules."

She said agency staff are investigating possible violations of environmental laws in the mint farm discharge and pursuing "appropriate enforcement actions" in the case.

Hartsock said the new guidance is intended to help enforcement staff understand which laws and rules apply to various situations and which facts need to be documented to prove violations.

"This helps to ensure consistency in enforcement and speeds up the enforcement process by avoiding the need for corrections and rewrites in enforcement documents," she said.

Ferraro fears the new guidelines represent a "further degrading" of IDEM's ability to enforce environmental laws. The agency also has moved to dissolve its enforcement office and has made other changes she said will weaken protections for the state's air, land and water.

Jessica Dexter, an attorney with the Environmental Law and Policy Center in Chicago, said there's a potential for Joest's guidance to be misunderstood.

"This ambiguity in this guidance may lead state officials to fail to pursue violations of Indiana regulations that would otherwise be warranted," Dexter said. "It appears IDEM may be taking a step back from vigorous enforcement of environmental violations."

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