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Sunday, December 28, 2008

Environment - "IDEM stops giving fines, punishments"

The Gary Post-Tribune has a story today by Gitte Laasby that begins:

MERRILLVILLE -- The Indiana Department of Environmental Management has stopped issuing fines against other state agencies in Indiana that violate their environmental permits.

For instance, the Indiana Department of Transportation violated wastewater permits for rest stops across the state more than 550 times over four years. It discharged sludge and ammonia into streams, causing algae blooms and potential damage to aquatic life. But INDOT got no fines. It got off with a legal slap on the wrist.

However, in my opinion, this story misses its mark.

First, Agreed Orders are the normal manner of resolving alleged violations of IDEM laws and rules. An agreement is reached between the party and IDEM, and is spelled out in an Agreed Order. The Order details the alleged violations, and the party agrees to what is often a variety of remedies. An important element of most Agreed Orders is a list of steps the party agrees to take in order to bring itself into compliance with the law. Often, but not always, the party also agrees to pay a specific civil penalty. Frequently, the Agreed Order in addition will list "stipulated penalties" that will become due if the party fails in some of the compliance steps agreed to.

(Where a party refuses an offer of an Agreed Order, IDEM will issue a Commissioner's Order, mandating actions and generally also imposing a civil penalty. As these are not settlements, they may be appealed. Only about 4.5% of enforcement actions are Commissioner's orders, as opposed to Agreed Orders.)

Whether or not to impose a monetary penalty on another state agency for violation of environmental requirements has been an issue debated at IDEM since its inception in the mid-1980s. I don't recall any Agreed Orders where this was done. The rationale is that with monetary penalties you are simply moving money from one state agency account to another, while the actual environmental practices may not be adequately addressed. Better, the theory goes, is to work with the errant agency to heighten its awareness and change its practices.

An example of this in action is set out in the INDOT Agreed Orders cited in the story -- 14208 is one of them. The details and current status of the violations (a number of which occurred in 2003), and what has been done since each of the violations were first noted, are detailed in pp. 1-20, where the Order itself begins, listing the specific additional steps Respondent INDOT binds itself to take to bring itself into compliance. This 27-page agreement seems much more than "a legal slap on the wrist."

In contrast, the story today cites Gary Tractor and Equipment, 14300, a private company. In this case, the Respondent agreed to pay a $5,000 civil penalty (see #14), plus meet a compliance schedule. A stipulated penalty table sets out additional penalties for failure to meet the timetable.

In sum, yes there is a $5,000 civil penalty imposed on the private company, but none on INDOT, an agency in the executive branch of government. But in each case the Respondent has entered into a binding legal settlement, committing itself to perform the steps necessary to achieve environmental compliance.

Posted by Marcia Oddi on December 28, 2008 01:32 PM
Posted to Environment