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Janelle Sou Roberts/The Journal Gazette
When pollution was discovered at Glenbrook Commons shopping center, officials submitted a cleanup plan in less than two weeks; the deadline is six months, but the average time taken is 22 months.

Delays mar pollution cleanup plans

Voluntary program lets state dither, firms dawdle

Indiana's voluntary environmental cleanup program, intended to handle polluted sites quickly and efficiently without courts and lawsuits, is instead marked by delays, years-long cleanups and neighbors kept in the dark about the polluted soil and water nearby.

Indiana Department of Environmental Management's Voluntary Remediation Program was started in 1993 as a way to speed property transactions: Businesses wanting to sell polluted land could enter a voluntary program to clean up the contamination and avoid a forced cleanup.

But a Journal Gazette analysis of the program shows that some cleanups take so long it appears companies are instead using the program to avoid any cleanup at all. There are 353 active sites in the program, including 35 in northeast Indiana. Seventeen of those are in Fort Wayne and New Haven.

“Voluntary programs as an alternative to regulations - there's not much of a track record that shows it works for the environment,” said Rebecca Stanfield, state director of the citizen environmental advocacy group Environment Illinois. “It may work as a way of having a program that is ostensibly there to address the problem, but study after study shows voluntary programs don't work to clean up pollution.”

Among The Journal Gazette's findings:

•Nearly nine of 10 active sites are past the six-month deadline for submitting a cleanup plan.

•Nearly two-thirds of those past the deadline have not submitted a cleanup plan in three years or more. The average is more than four years.

•One site, Siemens Electric in Princeton, has been without a cleanup plan for more than 10 years. Thirty-five other sites have been without cleanup plans for more than five years.

•Among sites that do have cleanup plans, it took an average of 22 months for the plan to be submitted. The deadline is six months.

•For sites with cleanup plans, it took IDEM an average 19 months to approve them so work could begin. The review is supposed to take 90 days. Two cleanup plans took more than eight years to approve.

•The backlog of cases within the program has grown every year of its existence but one, and it now stands at 200 cases.

Because of delays found at every step in the program - and because the state does not require polluters to tell their neighbors until they have an approved cleanup plan - residents living near contamination can expect to wait an average of more than four years before they are even told it exists.

“(The program) has helped, but it appears there's not enough resources or finances to keep up with the job,” said Linda Lee, a Purdue professor of environmental chemistry and soil science and associate director of the Center for the Environment who has worked with IDEM on sites in the program. “It's really frustrating.”

Catching unseen sites?

Bill Holland, the senior environmental manager in IDEM's Voluntary Remediation Program, said the program is a success because it is cleaning up hundreds of sites that otherwise might never be found.

“If you come in voluntarily, we didn't know you existed,” Holland said.

But Eric Schaeffer, director of the Environmental Integrity Project in Washington and a former Environmental Protection Agency employee who resigned in 2002 in protest over White House interference in efforts to enforce the Clean Air Act, said he would take that assertion with a grain of salt.

If it were true that most sites end up in the program because owners want to sell them and that banks require a cleanup before they will mortgage the land, IDEM would become aware of those properties with or without the program, Schaeffer said, and they would be cleaned up, and cleaned up quickly.

“The logic to a voluntary program is you're improving what you would otherwise get,” Schaeffer said. “If that's not happening … ”

IDEM's Holland acknowledged many of the sites in the program are motivated by plans to sell and that those sites tend to be speedy in getting through the cleanup process. But the newspaper found that those sites are in the minority.

“They're (public relations) programs,” said Bill Wolfe, who heads the New Jersey chapter of Public Employees for Environmental Responsibility and spent 13 years as a policy analyst and planner with the New Jersey Department of Environmental Protection. “They have good brochures; it sounds great, and the reality is awful.”

IDEM's 12-page glossy brochure touts the success of the cleanup at the Daleville 76 Travel Plaza in Daleville, near Anderson. But that project, which resulted from leaking underground storage tanks of gasoline and diesel fuel, took 7 1/2 years. It was nearly 1 1/2 years between the application to the program and an approved cleanup plan. The cleanup itself took more than six years.

Holland said that's not unusual because the state requires years of groundwater monitoring to ensure the cleanup is complete.

Meanwhile, delays in Indiana's program keep the public in the dark: Participants in the voluntary program are not required to make their contamination public until they have an approved cleanup plan from IDEM.

With an average eight months between application and a signed agreement, an average 22 months before a cleanup plan is submitted and an average 19 months for IDEM to approve the plan, neighbors can expect to wait an average of more than four years before they are told about the pollution near their homes, schools or workplace.

The St. Joseph County Airport Authority discovered contamination at the Michiana Regional Airport a decade ago but has never been required by IDEM to tell the public because the authority has never submitted a cleanup plan.

Tim Maloney, executive director of the Hoosier Environmental Council, a citizen environmental group, said the state's residents deserve better.

“If that's the way it's working, that's a problem,” Maloney said.

IDEM officials say sites that pose an imminent danger to the public are not allowed in the voluntary program, so neighbors are not in danger.

But the Environmental Integrity Project's Schaeffer said residents have a right to the information so they can decide whether the pollution is a danger or not.

“If I were a neighbor, I'd be frustrated and wanting to know if (four years) is really the best the state can do,” Schaeffer said. “If the idea for a voluntary program is to step up the pace of cleanup and make it happen faster, that's not what you're getting.”

Whatever the reasons for the slow pace, IDEM's Holland said, the agency needs to do a better job ensuring companies are not dragging their feet.

But delays are exactly what you can expect in a voluntary program, PEER's Wolfe said.

A voluntary program, where polluters are not required to do anything, “leads to an inordinate delay cleaning up sites. They enter a voluntary agreement with the state and then do nothing,” Wolfe said.

During the delays, he said, plumes of pollution continue to spread through the soil and water, contaminants continue to leach into the environment, and taxpayers who expect the state to protect their natural resources are let down.

“The whole program is rotten to its core,” Wolfe said. “A company will submit a soil sampling plan that is totally deficient, and then the state negotiates with the consultants for the polluter to make it better. And they drag their feet at every step.”

Poisoning in secret

Holland said he was not aware companies were dragging their feet on submitting cleanup plans but acknowledged that when the agency compiled the data for The Journal Gazette that it was the first time it had ever been examined that way.

He said IDEM should be vigilant in keeping the process moving, but the only enforcement power the agency has is that companies can be kicked out of the program. Of the nearly 600 sites entering the program since its inception, only 20 have ever been terminated. And those that are pushed into the forced cleanup program get a bonus: The clock starts over for any cleanup efforts.

Purdue's Lee said it's not necessarily a flaw that the voluntary program does not have teeth when it is contrasted with the state's forced cleanup program. The voluntary cleanup is the carrot, she said, and the forced cleanup program is the state's stick.

“I think the voluntary program is supposed to be the positive incentive,” Lee said. “The negative incentive just keeps the lawyers paid.”

But that doesn't mean the program should be toothless, she said.

“I would think they would get plans submitted a lot faster if they knew if they didn't do something in a limited amount of time” there would be consequences, Lee said.

Now, it appears the only consequence is that a deadline may be extended again.

When Wayne Metal Protection in Fort Wayne missed its deadline for submitting a cleanup plan in February 2006, IDEM sent a letter two months later demanding one - but also giving the company another two months to do it. When that deadline passed, IDEM did nothing until March 2007, when The Journal Gazette inquired about progress at the site. In response, IDEM sent another letter giving the company another two months - until June - to comply. But the company missed that deadline, too, submitting a plan for more testing, but no plans for cleanup.

Patrick Clemens, the son of Wayne Metal owner Dan Clemens, said the company hopes to have a cleanup plan by Jan. 1, 2008.

The Wayne Metal site is 200 feet from Memorial Park Middle School, and IDEM had feared the volatile organic chemicals in the ground and water - which have been linked to spontaneous abortions, menstrual disorders, altered sperm structure and reduced fertility, as well as effects on the brain and nervous system - were rising into classrooms.

The firm was allowed in the voluntary program because there was no evidence people were being exposed to the chemicals, even though officials acknowledged they had done no testing to make sure.

Later testing by the schools found no evidence of chemicals in Memorial Park, and the company has now - at IDEM urging - installed monitoring wells between the site and the school to ensure the plume of chemicals is not moving.

“No contaminants have migrated,” Clemens said. “The plume is stable.”

Contamination was discovered at the Phelps-Dodge Magnet Wire site in Fort Wayne more than two years ago. The deadline for a cleanup plan for leaking underground fuel storage tanks was June 2005, but none has been submitted.

Phelps-Dodge spokesman Peter Faur said the cleanup has been delayed by a sale of the company.

“We're working with IDEM to finalize the remediation plans,” Faur said. “We want to address this and remediate the site as quickly as we can.”

Purdue's Lee said IDEM is not good at determining which sites pose an imminent danger. That means resources can be misdirected toward sites that don't need it while those that do languish, she said.

And the Hoosier Environmental Council's Maloney said the distinction IDEM makes may be the wrong one, saying any site that poses a potential danger - not just an imminent danger as the rules state now - should not be in the voluntary program.

“The agency should be acting on anything that's a potential threat to public health,” Maloney said. “This program should not be an escape.”

‘It sounds like a farce'

Indiana Sen. Beverly Gard, R-Greenfield, said she understands the voluntary cleanup program will be slower than people like because it is voluntary and the state is not forcing polluters to perform.

But the delays uncovered by the newspaper are disturbing, she said, and need to be examined. Gard is chairwoman of the Senate's Energy and Environmental Affairs Committee and chairwoman of the Environmental Quality Service Council interim study committee. She said the study committee will review IDEM programs this summer and may ask for the voluntary cleanup program to be included in the review.

“IDEM's understaffed, and they may very well be slow in getting these things done,” Gard said. “It wouldn't surprise me.”

But it should be a surprise to taxpayers, because the companies in the program pay for IDEM's work.

“Each project is entirely self-funded,” Holland said. “They receive bills for review time. … They are paying their own freight.”

And yet, the backlog of sites in the program without an approved cleanup plan has grown every year but one since it started in 1993: By the end of 2006, there were 200 cases in the pipeline. And the logjam can only be expected to grow, since, on average, IDEM moves 22 cases a year while 28 new ones enter.

IDEM's Holland said the backlog might be because of project managers reluctant to approve a cleanup plan as a way to motivate companies to perform the testing and cleanup IDEM wants. If the company offers testing that is inadequate, the project manager can say he won't approve the cleanup plan until more comprehensive testing is done.

“You always have that stick (then) of, ‘I haven't approved your work plan yet,' ” Holland said. “I think we're certainly trying to discourage that.”

Gard noted a new law requires immediate disclosure of certain spills. But the law applies only to leaking underground storage tanks for petroleum products and does not change the way IDEM's voluntary program works.

Environment Illinois' Stanfield said Indiana's program appears to be working only for those who contaminate the state's soil and water.

“The industry hasn't complained lately so I guess it's working,” Stanfield said. “It sounds like a farce. I don't know if (the program is) poorly designed or poorly run, but it doesn't sound like people of Indiana can be too proud.”

IDEM disagrees.

Asked whether the voluntary program has been a success, Holland said, “Oh, definitely.”

Wayne Metals' Clemens disagrees with Stanfield, too, saying the struggling firm is moving as fast as it can afford to.

“If they had just put us out of business, nothing would have been done and we would be four years behind where we are now,” Clemens said. “That's not an acceptable outcome to anyone. We want to get the place cleaned up; we're doing the best we can.”

But Stanfield said no program can be called a success when there is an average of more than four years before cleanup even begins and the public is told about it.

“It sounds like a bad deal for the public and a real mess,” Stanfield said. “It sounds like the kind of program only a hardcore polluter could love.”

dstockman@jg.net

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