IDEM Drops Enforcement Office

IDEM Drops Enforcement Office
Post-Tribune (12/14/2008)
Gitte Laasby

The Indiana Department of Environmental Management is dissolving its Office of Enforcement -- the office that responds to environmental violations, assures polluters comply with their permits, and deters violations.

"The Office of Enforcement as a separate entity will no longer exist," IDEM?spokeswoman Amber Finkelstein confirmed to the Post-Tribune.

IDEM is also modifying its compliance and enforcement policy, narrowing the definitions of what constitutes the most serious environmental violations to say they must cause actual harm to human health or threaten the environment. The new policy also gives managers more discretion over when companies will face prosecution and penalties.

The closure is already taking place. The policy has not yet gone through the official process.

Environmentalists are dumbfounded. They say the changes undermine IDEM's purpose and endangers human health and the environment because the agency will be reacting to complaints by the public after damage is done rather than being proactive and precautionary.

Finkelstein said IDEM is eliminating the Office of Enforcement to improve customer service and allow better collaboration between employees. She said no staff cuts were made as a result.

"The Office of Enforcement is being reorganized to enhance customer service," she said. "What that means is that, with the enforcement backlog complete, the various sections of enforcement are being moved to the program areas. The Office of Enforcement is divided into a water, air and land area. Those separate sections are going to be moved into the program areas. The physical proximity will allow inspectors and enforcement staff to work more closely together."

Environmentalists don't see it that way.

"Eliminating the Office of Enforcement, it seems laughable," said Tom Anderson, executive director of Save the Dunes. "Their primary mission is to protect the public health of the citizens of Indiana. We understand how you want to get somebody into compliance but without enforcement, it's just like speed limits. More opportunities for violations."

A spokeswoman for Gov. Mitch Daniels, said the changes would have no effect.

"Enforcement is a vital part of IDEM," she wrote in an email. "Commissioner Easterly has reorganized this area of his staff, and the enforcement employees are being relocated into program areas to better coordinate with their colleagues. The state will continue to enforce permits and laws as it does today."

New policy

The new policy describes the most serious class of violations, called Class 1, as preventable. But unlike the old policy from 2003, the new one specifies that the violations must "result in actual threat to human health or safety or... in a serious actual impact to the environment" or "a significant threat to human health or the environment."

Anderson questioned whether federal law allows IDEM to add that qualification.

"Sounds like it's an attempt to weaken the federal regulation that already exists," he said. "There's some sort of burden to show harm, which isn't what the federal Clean Water Act or Clean Air Act provide the protection for ... let's say you're discharging PCBs, at what point will you show the harm? Maybe 10-15 years from now when they contaminate fish."

Kim Ferraro, a Valparaiso attorney for the Legal Environmental Aid Foundation, agreed.

"To prove environmental harm is very difficult," she said. "You can always say, 'There's no proof there's any harm."

More discretion

The new policy, revised Oct. 31, also makes consequences of violations more discretionary. The old policy said the most egregious violations were immediately referred to the Office of Enforcement. The new policy asks compliance staff to submit a report to the assistant commissioner who reviews it for referral for further enforcement.

"As far as the internal policy saying, 'This is how we're going to guide ourselves, it clearly is a relaxation of what industry has to do to get their attention in the first place. Even if a company did harm the environment, that doesn't mean IDEM has to do anything," Ferraro said. "We shouldn't have to be waiting till actual harm is done for the agency in charge to have to step up to the plate."

The new policy has yet to take effect.

The old policy, written in 2003, contained 12 pages of examples of violations in different classes. The new policy has no examples.

The new policy also states that the top managers including the commissioner can authorize compliance staff to deviate from the policy on a case-by-case basis.

The policy adds, "Whenever appropriate, the Compliance Manager shall seek to issue to a Regulated Entity the most informal enforcement action available in an effort to promote the expeditious return to compliance by that Regulated Entity."

Environmentalists said cooperation with facilities to get them back into compliance is a good intention, but that the purpose of penalties is to prevent facilities from violating in the first place.

"The bigger picture here is the undermining of the agency's purpose," Ferraro said. "IDEM is not about serving the public trust and protecting the environment. IDEM is more about making life easier for industry."

Environmentalists also ex-pressed concerns that transferring enforcement staff to program areas will dissolve the enforcement culture and replace it with the "client-serving" culture of permitting offices.

To go into effect, the policy must be available for public inspection for 45 days. The document is available on IDEM's Web site, but the official public review period won't happen until the new policy is revised to reflect the changes in the Office of Enforcement, IDEM's Finkelstein said.

The policy has to be presented to the state's Air Pollution Control Board, the Water Pollution Control Board, the Solid Waste Board and the Financial Assurance Board, but board approval is not required. The policy becomes effective 30 days after presentation to the last board and will be published in the Indiana Register.