New enforcement rules worry environmental activists

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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."


  • IDEM enforcement rules
    Of course some will pick out extreme cases where IDEM failed to do their job but in fact IDEM spends a lot of time punishing those who will not fight back or cannot afford to fight back. Indianapolis dumps more raw waste into the rivers than small town do in a life time yet IDEM passes on Indianapolis who has its citizens paying $20.00 a month for wastewater then attacks small towns whose residents pay $100.00 per month for wastewater disposal. This is a letter I sent to Governor Daniels with no response to date (about 10 months)
    The self imposed decline of small town Indiana.

    Small town Indiana is on the decline, for the most part because of IDEM's failure to provide either time or circumstance to allow the smaller communities to afford such things as new sewer plants. 1,200 or 1,500 homes and businesses cannot afford to purchase a 5 million dollar plant no matter what the loan amount is or what the interest rate is.

    New plants are more expensive than small communities can afford to pay for, and this is forcing people to abandon their homes at an alarming rate to

    concentrate in larger communities or simply move out of the state of Indiana.

    The number two man from IDEM, according to him, when attacking Bicknell at our city council meeting would not listen to any suggestions pertaining to costs to the community but assured us all that he did not care about costs to us and insisted that we comply regardless; if we did not then he would come back with he sleeves rolled up and stated that we would not like him with his sleeves rolled up.

    The exorbitant costs of forced sewer plant construction in small communities causes a substantial loss in population which creates a damaging amount of vacant homes that cannot be successfully sold because of the IDEM inflicted degeneration of property values. While Indianapolis had an increase of a few dollars per month while complying with IDEM Bicknell increased its sewer and water costs upwards of $100.00 per month for most of the towns residents. Right now a retired single person household is paying over $60.00 per month for water and sewer in Bicknell while trying to maintain themselves on a fixed income and property tax adjustments made little or no impact on their lives or budgets.

    Small town Indiana is rapidly coming to an end under this governors watch and even though the governor has attempted to cut property taxes he has allowed the State of Indiana (IDEM) to force additional costs on the residents of the small communities that far exceed the property tax savings.

    It is true that many small communities have not protected their communities properly in as much as their elected officials are not prepared to plan ahead as they should be and seem to follow spending programs that are many years old and have never been adjusted to the current times of shortages; spend seems to be the normal programs of our elected officials. Many small town governments have attempted ways to add their own tax to offset the governors property tax cuts to the individuals living in small town Indiana and when successful cause additional burdens on their communities.

    This is a problem for the State if Indiana to be looking at before it is too late to correct; IDEM must be controlled and this can only be done by the State of Indiana through our elected officials. No person that I am aware of wants to pollute the rivers and streams of our state but to force people into home abandonment surely is not the answer.

    I have contacted your offices previously and was assured that even though the governor cannot or will not control IDEM he would create jobs to offset the costs; where are the jobs? A new electrical producing plant is being built at Edwardsport Indiana which is suppose to add hundreds or even thousands of jobs to the area but to date the majority of the work is given to out of county and possibility out of State companies.

    The job creation promised by the governor is missing.

    Bicknell has a major problem, it has a shrinking population and even though this problem is evident IDEM is of no service, even though the new plant is being built it is of no service to Bicknell, even though the governor has cut property taxes the sewer rates assure that it is of no service to Bicknell.

    In the past when I have brought to the attention the costs of the sewer and water rates in Bicknell the governor's answer has been all towns are facing the same problem. This is not an answer it is the problem. Small towns all over Indiana are slowly failing due to the additional costs placed on them by the actions or non-actions of the State of Indiana.

    This IDEM insanity must stop and the State of Indiana must present grants to offset the costs to small towns in Indiana that need to comply or have complied at great costs to the community property owners as well as renters who are normally the first to vacate their homes.

    President elect Obama has been stating that he would like to offer the congress a plan to provide infrastructure money so that communities can afford to rebuild and even though I am a republican I can only support this plan as my own party has totally neglected the State imposed problems that plague our small towns in Indiana.

    Thank you for your attention
    John R. Stanczak

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