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U.S. EPA Approves IDEM Enforcement Program Changes

06.01.2009

By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP

In the fall of 2008, the Indiana Department of Environmental Management (“IDEM”) undertake undertook several significant changes to its enforcement policies and enforcement program structure. These included shifting enforcement personnel from the former Office of Enforcement to the program offices, terminating all local air agency contracts and updating its 2003 Compliance and Enforcement Response Policy (“CERP”) which categorizes how different types of violations will be enforced. These sweeping changes were viewed with concern by local agencies, environmental advocacy groups and others. Several stakeholders sought more public input on these changes. Some viewed these changes as a relaxation of the IDEM’s enforcement function. Ultimately these concerns were voiced to U.S. EPA Region 5.

U.S. EPA representatives conducted meetings with IDEM officials, representatives of certain local air agencies, and leaders of environmental organizations to discuss these concerns. After the meeting with the IDEM officials, the IDEM revised the CERP to address U.S. EPA’s concerns regarding the language used by the IDEM which required an unauthorized preventable discharge or other preventable violation to result in an “actual” threat to human health or safety or an “actual” impact to the environment or an unpermitted activity to result in a “significant” threat to human health or the environment before the violation would be classified as a Class 1 violation requiring immediate review by the program Assistant Commissioner for enforcement action. The IDEM made the revised CERP available for public comment from March 2, 2009 to April 16, 2009. See Nonrule Policy Document MP-005-R1-NPD dated March 2, 2009, available at www.in.gov/idem/files/MP-005-R1-NPD.pdf. The revised CERP drops the wording requiring an actual threat or impact or significant threat. The IDEM also made other clarifying revisions to the CERP and updated the CERP to reflect the shift of enforcement personnel to the program areas.

In a May 21, 2009 letter to IDEM Commissioner Easterly. Region 5 Administrator Bharat Mathur acknowledged the IDEM’s revisions to the CERP and its intent to include both potential and actual threats as Class 1 violations. Region 5 deferred to the IDEM regarding the changes to its enforcement structure and local agency utilization, stating: “We recognize that it is IDEM that administers its programs, and that it is to be afforded flexibility in issues like organizational structure and contracting.” Region 5 noted the importance of transparency and public participation and emphasized U.S. EPA’s expectation that the IDEM will take steps to “ensure a high level of communication and openness in the State’s programs.”

The U.S. EPA’s acceptance of the IDEM’s policy and program changes leaves little recourse for those unhappy with the new enforcement approach other than to monitor the IDEM’s ongoing enforcement efforts. Certain environmental organizations have sought U.S. EPA’s audit reports covering Indiana’s enforcement program for the last five years. Region 5 has indicated it will provide these reports to the requesting groups. The revised CERP must be presented to each of the rule-making boards and will become effective 30 days after being presented to the last board.

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