United States: IDEM´s New Enforcement Response Plan

IDEM’s New Enforcement Response Plan Felicia Robinson, Deputy Commissioner Legal Affairs for the Indiana Department of Environmental Management (IDEM), spoke at the recent Central Indiana Technical and Environmental Societies, Inc. ("CITES") Environmental Symposium about IDEM’s enforcement process and enforcement priorities. IDEM has developed a new Enforcement Response Plan to determine which types of violations will result in issuance of a Notice of Violation ("NOV"). This new Response Criteria was developed to ensure consistency among inspectors across the state and consistency among the air, water, and waste program areas when determining an enforcement action is appropriate. IDEM’s intent is to provide predictability for the regulated community and to achieve the best environmental results for the use of limited state resources.

Deputy Commissioner Robinson indicated this new plan requires field inspectors to immediately refer certain types of violations to the Office of Enforcement ("OE") or to present the inspection findings to the inspector’s supervisor to be referred to OE. For these types of violations, inspector discretion has been eliminated. For other types of violations, the appropriate response is for a Violation Letter to be issued by the air, water, or waste program area. Violation Letters will not result in a formal enforcement action or civil penalty, unless not properly addressed.

Violation Letters are used for the following types of violations:

1. Minor violations that present no harm to the environment.
2. Work practice violations (unless they involve asbestos)
3. Late or incomplete submission of documents or reports.

Violations where the inspector no longer has discretion, but must refer the matter to OE for issuance of a NOV, include the following:

1. Violations that cause actual or present a potential threat to human health or safety, or cause serious actual or potential impact to the environment. An example provided was a fish kill or large discharge.
2. Violations that involve the failure to have the required license or certification for operation or conducting the activity.
3. Violations identified under an EPA Grant Agreement as a Significant Noncompliance or a High Priority Violation.
4. Violations that involve falsification of records or data.
5. Violations where a Violation Letter has been sent, but no response has been made as a result of issuance of the Violation Letter.
6. Violations that are chronic–recurring, time and time again violation, even if a minor violation.

Deputy Commissioner Robinson estimated that last year a Violation Letter was used for 2,000 to 3,000 violations found. Approximately 1,000 NOVs were issued. Since this new Enforcement Response Plan has been in place, OE has observed an increase in wastewater referrals and referrals for violation of permit conditions.

There are a number of statutes that apply to IDEM’s inspection and enforcement process. One law requires the IDEM inspector provide an oral report of specific matters discovered that the inspector believes may be a violation of the law or permit before completing the inspection. Ind. Code 13-14-5-2(1). The inspector also must provide a written summary of the oral report given, within 45 days of completing the inspection. Ind. Code 13-14-5-2(2). The law allows property owners to provide information in response to either the oral or written IDEM inspection report. IDEM must review and consider any such information presented in response to an inspection and must append that information to the inspection report included in IDEM’s public files. In response to a question, Deputy Commissioner Robinson indicated information that a property owner wants to submit in response to an oral or written inspection report should be submitted to the inspector and to the Air, Waste or Water program area Branch Chief. It is not necessary to submit the information to OE, because OE will receive a packet of supporting information with an enforcement referral and will receive that information along with the referral of the inspector’s findings. She did recommend providing information that contradicts an inspector’s initial opinion that a violation exists soon so that it is received before the NOV is issued. Deputy Commissioner Robinson indicated that OE has the discretion to not issue a NOV and to dismiss a NOV after it is issued, if it is determined that the inspector’s conclusion that a violation has occurred is found to be in error. OE does perform a background review of the facts and law when receiving an enforcement referral and before issuing a NOV. OE will consider such information as part of any settlement conference after a NOV is issued, if the information does not reach OE before the NOV is issued.

Three other laws affect IDEM’s enforcement process. One law declares void an IDEM enforcement action if not commenced timely. Ind. Code 13-14-6-2 requires IDEM to commence an enforcement action by issuance of a NOV not more than three years after the date the department discovers the event of a violation or the last in a series of events that constitute a violation. Significant litigation to determine what constitutes a "continuing" violation under IDEM’s statute of limitations has not yet occurred. Case law under the federal Clean Air Act has found that failure to secure a Prevention of Significant Deterioration construction permit is a one time event, ending with construction, and not a continuing violation. In contrast, failure to have an operating permit would be considered a continuing violation. With this new mandatory requirement to refer violations to OE, persons should carefully consider whether enforcement actions brought by IDEM may be void as being untimely, if the violation involves a matter that IDEM has been aware of that could have been addressed timely. The fact Ind. Code 13-14-6-3 makes an untimely enforcement action brought by IDEM is void, means that both assessment of penalties and imposition of corrective action is barred if IDEM fails to bring its enforcement action timely.

Another law provides that IDEM may not take an enforcement action against a landowner on whose land garbage or other solid waste (not including hazardous waste) has been illegally dumped without the landowner’s consent, unless IDEM has made a diligent and good faith effort to identify, locate, and take enforcement action against a person who appears likely to have committed or caused the illegal dumping. Ind. Code 13- 30-3-13.

A third law limits the penalty IDEM may assess for a "minor" violation. Ind. Code 13-30-7-1. IDEM may not assess a civil penalty of more than $500 as part of its enforcement action if the violation meets all of the following:

1. IDEM must determine that the violation is minor;
2. The violation cannot present an "immediate" or "reasonably foreseeable" danger to the public health or environment;
3. The violation cannot be of a numerical limitation or numerical standard found in law or a rule;
4. The violation cannot be a violation of a term or condition of a permit or an order issued by IDEM to correct the violation (except it can include a violation of a permit condition that incorporates a limitation, standard, work practice or other requirement by reference without specifying in the permit the particular limit, standard or work practice or other requirement);
5. The violation cannot be a failure to have a required permit;
6. The business must correct or commence substantial steps to correct (which includes securing financing, ordering equipment or filing for a permit modification) the violation within 90 days of the date of receipt of the written IDEM inspection report (or 180 days, if IDEM grants an additional 90 days to correct); and
7. The violation cannot be the same as or similar to a violation for which the business has previously received a NOV, is not a criminal offense and was not committed intentionally or knowingly.

Deputy Commissioner Robinson also explained to the CITES group the Air, Water and Waste Program Areas’ Enforcement Priorities for Calendar Year 2003.

1. Annual Compliance Certifications for Title 5.
2. Construction or Operation without a Permit, especially New Source Review and PSD.
3. High Priority Violators identified under the EPA Grant Agreement.

1. Long Term Compliance Plan violations.
2. Sanitary Sewer Overflows.
3. Storm Water Rule 5 violations.
4. Agreed Order follow up violations.
5. Significant Non Compliers Under the EPA Grant Agreement.

1. Non Notifiers of Hazardous Waste activities.
2. Failure to submit annual generation reports — a requirement from the 2000 legislation repealing the manifest tracking law which requires annual reports by March 1st by all hazardous waste generators of at least 100 kilograms a month.
3. Significant Non Compliers, under the EPA Grant Agreement.

1. Confined Animal Feeding Operations.

This Enforcement Response Plan is likely to result in more NOVs, and the involvement of OE in more of the IDEM inspection findings. The regulated community needs to actively participate in inspections, be prepared to quickly correct misunderstandings by responding to inaccurate findings of inspections, and be ready to raise defenses and facts that serve to limit the severity of an enforcement action.