Government regulators have a list of more than 200 facilities in Indiana they say have broken air pollution laws in the past three years but, in most cases, have done little or nothing to stop them.
In fact, the majority of the Indiana companies that the U.S. Environmental Protection Agency says have violated the federal Clean Air Act since Jan. 1, 2007, were still in violation on Dec. 31, 2009. Yet in more than a third of those cases, state and federal regulators have taken no action.
A Journal Gazette analysis of a database of violations and enforcement actions maintained by the EPA shows that 210 of the 1,260 facilities in Indiana with permits to release air pollution have violated the Clean Air Act at least once in the past three years. But 140 of those violators – two-thirds – still had ongoing, unresolved violations as of Dec. 31.
Fifty-seven of the facilities have been breaking the law for at least three years, according to EPA data, but have been subject to no formal penalties or sanctions; 50 of those 57 haven’t been told of their alleged violations, the newspaper found.
The EPA tracks both “formal” and “informal” enforcement actions. Informal actions are official notices that a company is believed to be breaking the law.
Some of those companies say the data are wrong; state officials responsible for enforcing the law claim the statistics are out of date.
“(A lack of enforcement) creates a huge incentive not to fix the problem,” said Faith Bugel, a Clean Air Act attorney at the Environmental Law and Policy Center in Chicago. “Why should they? No one’s coming after them.”
Even the violations the EPA said are its highest priority – by repeat violators and those who pollute more than allowed – are getting little attention: Twelve of the 62 facilities with “high-priority violations” have been in violation for three years without any enforcement action.
“That’s incredible,” said Jesse Kharbanda, Hoosier Environmental Council executive director. “That’s very troubling for a state with chronic air-quality problems.”
The Clean Air Act was enacted by Congress in 1970 to deal with the nation’s declining air quality and has been credited with vast improvements across the country. But while the act is a federal law and the rulemaking process for the act’s various provisions is handled by the EPA, most of the enforcement is handled by individual states.
“We have federal laws from the 1970s because the air quality was killing people,” Bugel said. “The citizens of Indiana need to complain that we’ve got toxins being dumped near schools. … They’re the ones that can make the claim, ‘This is killing us,’ because it is.”
And the agency they need to complain to is the Indiana Department of Environmental Management, she said.
“Permitting and enforcement lie with the state,” Bugel said. “It’s the state’s job to investigate and enforce these laws. And where the state is not enforcing them, then the EPA needs to be the backstop.”
So why are so few violators being punished? IDEM says it only appears that way.
IDEM spokesman Robert Elstro said the EPA’s database, known as Enforcement & Compliance History Online is out of date. But the EPA says it is updated monthly; the last update was March 13.
“ECHO shouldn’t be used to get a snapshot of Indiana’s efforts to resolve enforcement cases, because the database often doesn’t get updated to reflect cases (that) have been resolved,” Elstro wrote in an e-mail response to a request for an interview.
“Five years ago, IDEM had a significant backlog of pending enforcement cases. Since then, the agency resolved the outstanding cases … and put a policy in place to resolve enforcement cases within one year of when the notice of violation is sent to a facility.”
David Van Gilder, a Fort Wayne attorney and Hoosier Environmental Council board member, said the lack of enforcement is especially distressing because many of the violations are reported by the violators themselves when they make required reports to the EPA.
“The theory is if you have to tell somebody you’re breaking the law, you’re much less likely to violate it,” Van Gilder said. “But if nothing happens, eventually the bean counters take a look at it and say it costs more to do it right than it does to just keep making these reports.”
And since EPA has compiled a list of violators, he said, it’s a mystery why they are not being prosecuted.
“These are state and federal laws that could easily be enforced,” Van Gilder said. “If the data is being self-reported and is available to everybody, it’s a little like catching the shoplifter red-handed.”
EPA Administrator Lisa Jackson told the National Press Club on March 8 that Americans have rightly lost trust in her agency but that it is now “back on the job.”
“We challenged ourselves, over the past year, to make sure we re-earn the trust of the American people,” Jackson said. “I hope we’re doing that.”
David M. Uhlmann, a University of Michigan law professor who used to be in charge of the U.S. Justice Department’s environmental crimes section, said enforcement is not as simple as it might sound.
“Getting a facility into compliance can be very difficult,” Uhlmann said. “Many times, the companies involved are providing valuable, if not essential, services to the community, so it’s often not an option to shut a factory down or to be overbearing in dealing with whatever pollution problem they’re having.”
Even something that sounds simple, like installing new emission controls, can take years, he said.
“If you’ve got to install new pollution control equipment or change processes, that takes time, and I would not be surprised to see them in continued non-compliance until that work is done,” Uhlmann said.
At the same time, the apparent lack of enforcement in Indiana is troubling, he said.
“Indiana’s never had a reputation for leading the pack on environmental enforcement,” Uhlmann said. “But it’s important to remember, the states are on the front line. They are the ones under all the federal environmental laws that have the day-to-day responsibility to make sure that facilities within their borders are complying with the laws. If the state’s not doing its job, you’re going to see a lot of facilities with problems that go unaddressed.”
‘Things are in error’
Even companies the EPA says are breaking the law find the lack of response by regulators troubling.
According to the EPA, Transmetco, a metal reclamation company in Huntington, has been violating the Clean Air Act for at least three years by failing to adopt the maximum available emission controls. But not only have state and federal regulators done nothing about the alleged problem, they haven’t even told the company, according to Transmetco officials, a claim that is confirmed by EPA data.
General Manager Dave Roth said the company takes the law seriously and would do what it needs to do – if it were told it needed to do something. The lack of communication on the issue is especially troubling, he said, because the company’s application to renew its permit was late, resulting in many discussions with regulators and eventually a $500 fine.
“We’ve had plenty of communications on this latest permit, and there’s been nothing at all said about this other issue,” Roth said.
Instead, the first the company heard about the violation was when it was questioned by The Journal Gazette.
Other companies say the EPA’s data are simply wrong.
Bunge North America is a grain and oil-seed processor with dozens of plants across the country, including five the EPA says have been in violation of the Clean Air Act for the past three years. Among the five are Bunge’s plants in Morristown and Decatur.
But Bunge spokeswoman Deb Seidel said that is not true.
“We think these things are in error. We contacted the EPA awhile ago, and they seem to agree with us that it probably is. We’re just waiting for them to fix it on the Web site,” Seidel said. “We don’t believe we’re in non-compliance anywhere.”
The EPA’s database says the Decatur plant has had permit violations for at least three years, as well as violations of a state implementation plan and the rules for a class of toxic chemicals called volatile organic compounds.
The Morristown plant is in violation of a state implementation and volatile organic compound rules as well, according to EPA data.
Federal court records show that all five plants alleged to be in violation, as well as seven others, were part of a 2006 national lawsuit against the company filed by the EPA and eight states, including Indiana.
The complaint alleged that Bunge made major plant modifications that increased emissions without getting permits and did not meet standards for new sources of pollution. In 2006, the company reached a settlement with the EPA and the eight states that included $625,000 in fines and $12 million in pollution-control projects.
But court records show that at least four of the plants have been unable to meet the terms of the agreement; the Decatur plant now has until 2011 to add new equipment. As part of the original agreement and a modified agreement filed in February, the company did not admit any wrongdoing.
“As far as our communications with the EPA and IDEM, we’re not in non-compliance anywhere,” Seidel said. “We’re in the process now of hoping their Web site reflects that.”
Rea Magnet Wire officials in Fort Wayne also say the EPA is wrong. The EPA says the Pontiac Street facility has been in violation of permit rules for at least three years.
“The inspector we just had at the plant two days ago indicated the report they have out there is full of errors, and they know it’s full of errors,” said Susan Boyd, corporate human relations manager. “They said Rea Magnet Wire is fine.”
EPA records show the company’s permit was reviewed twice by IDEM in 2008 and again in 2009 and that each review showed the company in violation. Those reviews followed an EPA review of the permit in 2005 that also showed the firm afoul.
Boyd said IDEM officials are working to write a letter saying the company is not breaking the law.
“We have someone willing to step up and say that report is not accurate,” she said. “Based on the latest inspection, we are OK and in compliance.”
‘Pays for itself’
The University of Michigan’s Uhlmann said there could be many reasons for a lack of enforcement.
“Are the state and the EPA being aggressive enough? That’s a fair question to ask,” he said.
There could also be a poor relationship between the state and EPA and disagreements on which cases each will handle, or each could lack the resources to enforce the law.
“Sometimes under-enforcement just means they don’t have enough people,” Uhlmann said. “It’s not usually that they don’t care.”
IDEM regulators might also not have the political support they need, he said. IDEM’s chief used to be a steel mill executive and has been linked to an open dump of toxic waste at his former employer; the agency’s top enforcement official is a former lobbyist for the coal industry who fought IDEM regulations.
Uhlmann said regulators have to be able to balance the ability to help companies obey the law with an ability to enforce it when they refuse.
“It requires a commitment to working with industry in the state to provide the necessary counseling and support when there are questions about what the law requires or uncertainty about how to get a facility into compliance,” he said.
“But there also has to be a willingness to bring tough enforcement actions. … You’ve got to be willing to bring lawsuits or criminal charges.”
ELPC’s Bugel said that is unlikely because IDEM has been co-opted by the companies it is supposed to be regulating.
“These large companies are coming in with IDEM in their pocket, and IDEM’s not enforcing the law because the company is claiming ‘jobs,’ ” Bugel said. “I think IDEM is abdicating its responsibility.”
The EPA’s Jackson said states need to understand enforcement and economic development can co-exist – even during times of budget cuts.
“Lobbyists and business journals have done such a good job of ingraining it into our way of thinking that many of us believe, sadly, that we must choose between our economy and our environment,” Jackson said. Well-conceived, effectively implemented environmental protection is good for economic growth. …
“Now don’t get me wrong. Environmental regulations are not free. But the money that’s spent is an investment in our country, and one that pays for itself.”