« Ind. Courts - "Federal court clerk bid fond farewell" | Main | Ind. Courts - Estate of former Johnson County juvenile court magistrate sued »

Saturday, October 01, 2005

Ind. Gov't. - "IDEM claim of quickly cleared cases is challenged [Updated]

"IDEM claim of quickly cleared cases is challenged" is the headline to this story, by Niki Kelly, in today's Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – A recent public records dispute casts doubt on the Indiana Department of Environmental Management’s claim to have cleared a backlog of old enforcement cases.

The timeline of the issue goes like this:

• In June, the agency put out a statement with this opening paragraph – “The Indiana Department of Environmental Management has unclogged a bottleneck of enforcement cases that have been unresolved for two or more years. Many of the previously unresolved cases inherited by the new Daniels Administration were settled with an amicable agreement between IDEM and the responsible parties.” Later in the statement, 90 resolved cases were mentioned.

• The next day, an Associated Press story in the Huntington Herald-Press quoted IDEM’s assistant commissioner as saying the agency had resolved about 90 enforcement cases dating back at least two years.

• In July, The Journal Gazette quoted IDEM Commissioner Thomas Easterly also saying 90 cases more than two years old had been cleared.

• Also in July, Easterly gave a PowerPoint presentation to lawmakers on the Environmental Quality Service Council that included an edict to resolve “old” cases. The next point in the slide said 90 had been resolved with 20 more settlements pending.

The problem is that a list provided by IDEM of the cases shows that most of the ones resolved through agreement or dismissal were from this year or 2004 – not even close to two years old.

“That’s not a backlog,” said Thomas Neltner, the citizen who originally sought the records from IDEM on behalf of the Hoosier chapter of the Sierra Club.

The initial request to see the settlements was made June 13. The Sierra Club specifically wanted to see which companies were allowed to pay lower fines than originally anticipated for environmental violations.

Neltner’s battle with IDEM went on for months until he filed a formal complaint with the Indiana Office of the Public Access Counselor for the remaining documents in August. One item he still specifically needed was a list of all the companies involved.

Public Access Counselor Karen Davis notes that Neltner was unsure whether such a list even existed but IDEM had not responded either way.

“To my knowledge, there would be no exemption that would apply to such a list; if IDEM has compiled a list of the 90 settled cases, it should produce it,” Davis wrote.

With respect to remaining documents Neltner had requested, she expressed “doubt that the agency has met its burden to show that it has produced the records within a reasonable time. * * *

Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette.

The list shows 80 cases settled, 18 dismissed and 10 in which [commissioner's] orders were issued because no resolution could be found.

Of the 98 resolved either through settlement or dismissal, 50 are from 2005 and 2004. Forty-eight were from 2003 or before – and even some of those could technically fall within the two years depending on what month they were filed.

IDEM spokeswoman Amy Hartsock said there was never any intention to mislead the public. She said the agency had embarked on two simultaneous paths – identifying old, problem cases to resolve while also reacting more quickly to new cases – that got muddled together.

I've assembled most of the documents referenced in the story:

(1.) The IDEM press release from June 6, 2005.

(2.) An AP writeup headlined "State unclogging environmental enforcement logjam", by Rick Callan, that appeared in the June 7, 2005 Louisville Courier Journal. Some quotes:

Indiana has made quick progress tackling a years-old logjam of enforcement cases against companies accused of violating air, water and solid waste regulations, a state environmental official said yesterday.

Since March, the Indiana Department of Environmental Management has resolved about 90 enforcement cases dating back at least two years, said Matthew T. Klein, assistant commissioner of the department's Office of Compliance and Enforcement.

And last week the agency warned 10 other companies to correct problems or face possible fines.

Klein said the successes show that the agency's aggressive new approach to handling cases is working.

Gov. Mitch Daniels and IDEM Commissioner Thomas Easterly have vowed to eliminate the backlog of more than 220 environmental enforcement cases that had been unresolved for at least a year and a half when Daniels took office.

"We all need to move on and get these things resolved. Not only do the companies want things resolved, IDEM does, too," Klein said. "I'm starting with the oldest cases, and I'm working my way forward."

In March, Klein's office wrote companies, warning them that if their cases were not resolved by June 1 they could face a Commissioner's Order. Unless corrective action is taken, those companies will go before an administrative law judge who could fine them.

Klein said about 90 of those cases -- all of them at least two years old -- have been resolved, with companies either agreeing to pay penalties, change their industrial operations or take other steps to comply. The department is close to settling with about 20 other companies. * * *

Among the 90 cases resolved this spring is a long-running enforcement action against Indiana Corrugated Inc., a maker of cardboard boxes in the Huntington County town of Warren, in northwestern Indiana.

Donn Wray, an Indianapolis attorney who represents Indiana Corrugated, said company officials were frustrated by their dealings with IDEM since the agency investigated a spill of a soy-based, biodegradable ink at the plant in May 2002.

Earlier this spring, IDEM and the company signed off on an agreement under which the company would pay a $28,000 fine and the agency would drop its previous concerns about solid-waste violations that the company maintained were baseless.

"We proposed a possible settlement to the previous administration, and we heard nothing from them for months. The new administration comes in and we resolved this in about three weeks," Wray said.

(3.) The agreed order in the Indiana Corrugated case. Notably, the notice of violation (NOV) in this case was dated 9/15/03. The settlement agreement is dated 5/17/05. According to para. 6 of the AO:
On April 10, 1999, the Huntington County Geographic Information Service (“GIS”) obtained aerial photographs of the Site, which showed the ink leaving the south side of the building, pooling and migrating to a ditch, which runs to a swale, and is then carried off-site to a wooded area at the northwest corner of the property, which runs to an unnamed ditch to Salamonie River, waters of the state. On May 7, 2002, representatives of IDEM conducted a spill investigation of a discharge of ink-laden wastewater from the Site to the same wooded area noted by Huntington County GIS on April 10, 1999, near the Site and into an unnamed ditch, which runs into Salamonie River, without a valid NPDES permit. Also during a follow-up inspection by representatives of IDEM on December 4, 2002, it was observed that an area of approximately four feet by six feet of pooled black water and ink-laden soil ran downstream of the pooled water on the south side of the building at the Site. The Respondent failed to obtain a valid NPDES permit prior to discharging into the waters of the state, in violation of 327 IAC 5-2-2.
Note that although the initial inspection was 5/7/02, as mentioned in both Mr. Wray's statement and the IDEM AO, the NOV in this case was not issued until 9/15/03.

(4.) The Public Access Counselor's opinion, dated Sept. 22, 2005. A quote:

The APRA does not prescribe any time in which an agency must produce its records. This office has stated that an agency must produce responsive records within a reasonable time, under all the facts and circumstances. From the gist of your complaint, and from your letters to IDEM dated September 12 and September 13, I conclude that you believe that IDEM is withholding a list of the 90 settled cases referred to in IDEM’s press release. Not only do those letters specifically request the list or state that the list is still outstanding, but the statement in your complaint that IDEM has not provided “any documents related to the list of 90 resolved cases...” seems fair only when interpreted as a request for a list, since you admit throughout your timeline that you have received many pages of records relating to the settled cases.

Hence, the central issue is whether IDEM has been forthcoming with the list of 90 cases, as well as some of the draft and final agreed orders relating to those cases and yet to be produced. Your request for the list no doubt would help you to resolve the question of how IDEM arrived at the figure of 90 resolved cases, since the records you have received thus far, in your estimation, do not reveal 90 resolved cases.

(5.) I also hope to obtain a copy of the list mentioned in Kelly's story: "Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette."

[Updated 10/2/05] The Indianapolis Star today carries an AP version of the same story. As does the South Bend Tribune, in a very abbreviated report.

Posted by Marcia Oddi on October 1, 2005 07:43 AM
Posted to Environment | Indiana Government