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The Journal Gazette
Enforcing clean water: The U.S. Environmental Protection Agency says 73 percent of Indiana facilities with permits under the Clean Water Act broke that law in 2009. But of those 1,194 violators (box on left), only 400 faced any kind of enforcement actions (middle box). And of those, none paid any financial penalties that year, according to the agency (box on right).

Clean Water Act violations rising, seldom punished

State regulators dispute findings from EPA data

– Nearly three out of every four facilities in Indiana operating under the Clean Water Act broke that law in 2009, EPA data show, but of all those violators, only one-third faced any kind of sanctions.

The violations ranged from failing to follow schedules; permitting and reporting problems; to the most severe – polluting the state’s waterways.

And though 73 percent of permit holders – from factories to municipal sewer systems – broke the law, the EPA reported, not one of them paid a financial penalty that year. Anyone who discharges waste into a river, lake or stream must have a Clean Water Act permit.

According to the EPA database, only 23 of the state’s 1,194 violators faced formal enforcement actions, in which they were required to make changes or fix problems. An additional 377 – 32 percent of violators – faced only “informal” enforcement, in which the Indiana Department of Environmental Management sent them a letter notifying them they were breaking the law, the EPA says. The rest saw nothing.

IDEM officials say the EPA database is inaccurate.

“That is clearly not what’s going on in the state of Indiana,” said Bruno Pigott, IDEM’s assistant commissioner for the Office of Water Quality. “This (EPA database) is not representative of what’s really going on. Does that mean three-quarters of our facilities are not in compliance? No. It means that’s what that database says.”

The EPA says the information is accurate, but notes that the information is provided by the states themselves, which could lead to gaps in the data.

Two years ago, a Journal Gazette investigation showed that 17 percent of Indiana facilities with permits under the Clean Air Act had broken the law over the previous three years, but few were punished. This new analysis of EPA data shows more than four times as many facilities violated the Clean Water Act in just one year – but still face little, if any, punishment for doing so.

Pigott said the number of violations in the EPA database are artificially high because of old violations that have been resolved, but the database was not updated to show that. He said a violation shown in the EPA data could have been something as simple as a paperwork issue that was resolved years before.

The database says it shows only facilities that had violations that occurred during the year in question, in this case 2009, the last year for which full data is available.

Pigott said there were 179 formal enforcement actions in 2009, not the 23 the EPA reported, but admitted some of those were for drinking water violations, not Clean Water Act issues. He did not know how many of each there were.

David Van Gilder, a Fort Wayne attorney and Hoosier Environmental Council board member, was astounded that the EPA reports nearly three out of every four Clean Water Act permit holders had broken the law.

“Whoa! Seventy-three percent?” Van Gilder said. “There are penalties that can be imposed. These fiscal guys that are looking for money, there it is.”

He was then informed that no financial penalties had been assessed that year.

“Zero? That’s just ridiculous,” he said.

That is especially distressing, Van Gilder said, because enforcement of environmental laws should pay for itself – the penalties imposed on violators should cover the cost of investigating and prosecution violations. Because IDEM divided its enforcement staff among different regulatory departments, officials could not say what they spend on enforcement efforts.

“I think there would be enough there to pay for prosecuting the cases,” Van Gilder said. “I think that’s reasonable.”

He also noted that most environmental laws have a criminal component to them, meaning local prosecutors could be enforcing them, as well. Once again, he said, the fines collected could pay for the prosecution, while also cleaning up a county’s lakes and streams.

“It could probably easily pay for itself,” he said.

The lack of punishment for violators was across the board: The EPA designates whether facilities are “major,” with lots of output, and smaller ones. Of the 195 major facilities in Indiana, 147 had violations in 2009, the EPA said.

But only five had formal enforcement actions where they were required to make changes or solve problems.

IDEM’s Pigott said the state agency is especially vigilant about major permit holders, and said that when violations do occur, the agency negotiates an Agreed Order, a legally binding agreement in which the facility makes required changes, often pays a fine, and agrees to more fines and sanctions if the requirements of the order are not met.

“If they’re in significant noncompliance, we’ve got them under an Agreed Order,” Pigott said. “The facilities in Indiana, when they’re not in compliance, we’re taking action.”

Van Gilder said a major factor in Indiana’s lack of enforcement is its willingness to negotiate with polluters rather than requiring them to follow the law.

“The thinking in Indiana is, ‘let’s solve the problem.’ And then you negotiate how to do that,” Van Gilder said. “But while they’re dithering, another billion gallons goes into the river.”

He said the idea that to be business friendly the state has to look the other way when companies pollute is false.

“You can be business friendly by saying, ‘Here’s the rules, here’s what happens if you violate the rules. We’ll treat you with respect, and in return we expect you to treat our people and our natural resources with respect.’ It seems to me business people would respond to that,” Van Gilder said.

Pigott said he wants Hoosiers to know that IDEM is enforcing environmental laws, whatever the EPA data say.

“It’s easy to make a broad-brush stroke statement that nothing is happening, but the reality is a lot is happening,” Pigott said.

“I believe we’re really doing good work.”