Sierran Masthead

Sierra Club Exposes Serious Errors at IDEM

By Tom Neltner

The Hoosier Chapter of the Sierra Club has uncovered serious errors by the Indiana Department of Environmental Management that IDEM's leadership is either unwilling or unable to resolve. The errors suggest violations of Indiana's public records law, inflated claims designed to embarrass the prior administration, and a refusal to be accountable to the public.

If IDEM has complied with the public records law, then IDEM issued a press release that it could not substantiate. Since IDEM would not or could not document its claims made in the press release and in public speeches, Charles Logdson and I reconstructed the facts on behalf of the Sierra Club after reviewing more than 3,500 pages of documents provided by IDEM.

Based on this analysis, it is clear that IDEM fell far short of its claims. Instead of resolving 90 cases that were more than two years old, the new administration resolved only 27 cases, including one case "resolved" by a dismissal without explanation. Instead of resolving 90 cases between March 1, 2005, and June 6, 2005, only 66 cases were resolved and 8 of these cases were "resolved" when IDEM unilaterally dismissed the enforcement action.

In March 2005, IDEM announced that it would either resolve enforcement actions pending for more than two years or issue a Commissioner's Order to unilaterally settle the cases. If the person subject to the Commissioner's Order objected, the person would have to appeal to the Environmental Law Judge. IDEM set a deadline of June 1 for action. The Sierra Club believes this is sound public policy. When I learned of it, I immediately sent IDEM a note saying good work. On June 6, 2005, IDEM issued a press release announcing it had issued 10 Commissioner's Orders. IDEM stated that "Since March, the new IDEM administration has followed through and resolved 90 cases. Another 20 cases are close to being settled. These 10 Commissioner's Orders have been issued because no resolution was imminent." See Elist=83858 for the press release.

Before the Environmental Quality Service Council on July 19, IDEM's Commissioner Easterly reiterated verbally and in writing the agency's claim that it resolved approximately 90 cases more than two years old between March 1 and June 1 and had 20 settlements pending. On July 25, Commissioner Easterly was quoted in the Fort Wayne Journal Gazette as saying that there were 120 cases that were more than two years old. Of the 120, he claimed that 90 complaints were resolved.

Since June 13 -just one week after the press release was published- Charles Logdson and I tried to get the information from IDEM to substantiate its claim. We made a total of 12 requests, each time clarifying the original request. IDEM responded with five batches consisting of more than 3,500 pages of documents. IDEM charged more than $350 for copying the documents.

Every one of the 12 requests specifically asked for a copy of the list of cases referenced in the IDEM press release. IDEM has never provided a list of the cases and never stated that there is no list. It stretches credibility that IDEM issued a press release without generating some list in hard copy or electronic format. Either IDEM repeatedly violated the public records law or it violated a basic rule of common sense and accountability when it issued a press release without documentation.

Charles Logdson and I sorted through the 3,500 pages of documents and tried to recreate a list. Because IDEM did not provide a list, the task was complicated. Some agreed orders have incomplete information on the date of the inspection or the notice of violation. We were not able to get a copy of the draft agreed order or notice of violation on many cases.

Of 103 signed agreed orders IDEM provided, we could not identify:

  • Inspection dates for 9 orders
  • Notice of Violation dates for 9 orders
  • Draft Agreed Orders dates for 16 orders

IDEM did provide us with 8 cases that it dismissed without explanation. Only one of the cases was more than two years old. Inexplicably, IDEM provided two Commissioner's Orders resolved by the prior administration.

Based on our analysis, we conclude that IDEM did not achieve the goals it claimed in the press release. IDEM claimed that it had resolved 90 enforcement cases that were more than two years old from the date that the violation was identified. They could only find 27 cases -26 agreed orders and one dismissal. Seven of the 27 cases were resolved before IDEM launched its program on March 1. Two were resolved after IDEM issued the press release.

If the date that the Notice of Violation was sent is used instead of the inspection date, IDEM resolved only 16 cases-not 27 cases. In addition, 4 of the agreed orders appeared to involve more than one enforcement action and one appeared to involve 10 actions. If these 12 cases are added to the total, only 39 cases were resolved.

Commissioner Easterly continued to use the unsubstantiated numbers 13 days after I alerted IDEM that it had serious concerns about the numbers. IDEM claimed that the press release did not state that 90 cases more than two years old have been resolved. Instead, IDEM said that the press release claimed that it resolved 90 cases between March 1 and June 6. Despite this clarification, Commissioner Easterly apparently misread the press release in the same manner as the Sierra Club when he made statements to a legislative oversight commission and to a newspaper journalist.

Even with IDEM's narrower reading of its press release, IDEM's claim does not stand up to scrutiny. Of the 103 agreed orders that we received, only 58 were resolved between March 1 and June 6. Twelve agreed orders were sent to facilities after June 6, and 31 were resolved before March 1. Even if IDEM counted dismissals of enforcement cases as "resolved," the total is only 66 cases-far short of the 90 cases touted by IDEM in its tally.

IDEM needs to provide the public and the legislature with an accurate accounting. In an administration committed to accountability, IDEM need to demonstrate that it can actually and fairly count in order to be accountable

Copyright © 2007 Hoosier Chapter Sierra Club, all rights reserved.[10/04/05]efp

Summer 2005