IDEM Releases COVID-19 Noncompliance Requests

From retrofitting to produce hand sanitizer to delaying an environmental investigation affecting thousands, Indiana industries have asked the state’s environmental agency for permission to skirt some legal requirements.
April 28, 2020

The state of Indiana’s environmental agency has shared documents that show which regulated entities have asked the state to adjust the enforcement of certain regulations as a result of the COVID-19 pandemic.

The documents give insight into the inner workings of the Indiana Department of Environmental Management and how strict environmental regulations ensure the efforts to keep Hoosiers safe from pollution continue even under a national public health emergency.

IDEM released documents related to COVID-19 compliance requests.

The U.S. Environmental Protection Agency first adopted an “enforcement discretion” policy due to the pandemic that allowed civil violations of environmental monitoring requirements.

IDEM adopted an “enforcement discretion” policy soon after Gov. Eric Holcomb issued a stay-at-home order March 23. The order directed Hoosiers to stay at home and forced “non-essential” businesses and operations to close, but allowed businesses deemed “essential” to continue operating.

Industries and municipalities said the order, along with the disease it was created to prevent, made it difficult for them to follow certain federal and state environmental law monitoring requirements.

IDEM said it would “work with any source taking reasonable measures to protect human health and the environment” and would consider allowing noncompliance of some regulations or delay enforcement if those entities contacted IDEM, described how the COVID-19 outbreak contributed to noncompliance, described the amount of time the entity would be noncompliant and the exact rule or permit provision that would require IDEM’s discretion.

The publicly available documents compiled by IDEM show five municipalities and 21 companies reported potential noncompliance and sought extensions or suspensions of monitoring date requirements.

The City of Elkhart's Public Works & Utilities department informed state and federal authorities it would be unable to comply with regulations due to COVID-19.

The City of Elkhart’s Public Works & Utilities department was first to inform state and federal authorities that it would not be able to comply with regulations in a “timely fashion” due to forces beyond its control. Evansville Water & Sewer Utility announced its reporting troubles a week later.

Mooresville asked IDEM for a 90-day extension on a deadline for the city’s annual pretreatment report due to health difficulties faced by the town’s water treatment plant superintendent. Bristol asked for a 60-day extension on certain monitoring reports due to similar health concerns with the utility’s office manager.

Centerville’s Waste Water Treatment Plant asked for a 60- to 90-day extension on a construction permit application for a phosphorus project, but was denied a formal extension. IDEM explained it would work with the city to allow the project to continue.

“As far as any formal extension on the construction permit application due date: Since that compliance schedule to meet phosphorus is set in the permit, a formal extension cannot be granted. But we understand your concern, and will use discretion as far as any further action in light of potential impacts from COVID-19, giving you additional time,” wrote senior environmental manager Pam Grams.

IDEM has also had to deny extensions and delays to protect human health.

The former Executive Cleaners site in Elkhart was one of many affected by disruptions due to the COVID-19 pandemic.

An environmental consulting firm hired by the City of Elkhart to investigate a toxic plume of dry cleaning chemicals at the former Executive Cleaners site along the St. Joseph River told IDEM it would suspend vapor intrusion investigations in structures and homes near the site.

“I do not want to risk entering 24 different structures given the current situation. I’m sure the occupants of the structures do not want us in their homes/businesses knowing that we would be going in and out of so many structures. We’ll reevaluate once the stay at home and social distancing orders evolve,” wrote Crossroads Environmental Consulting principal geologist Mike Cooper.

IDEM advised the company to continue its investigation to find the extent of the contamination. The agency sent out letters to homeowners that warned them they would be responsible for contamination and cleanup on their own property if they declined to be a part of the Executive Cleaners investigation.

Companies, including Marathon Petroleum Company, tried to get regulatory relief for the duration of the COVID-19 crisis.

Marathon Petroleum Company, the owner of Speedway convenience stores, asked for “temporary relief from certain provisions of statutes, rules, orders and permits” for at least 17 sites across the state.

The company wanted to delay until July 1 requirements to monitor and repair fugitive leaks, remediate soil and groundwater contamination, sample water and hazardous waste and many other monitoring requirements.

IDEM seemingly denied Marathon’s request, as the company submitted air and water quality reports after the March 26 receipt of the request.

Some agency-approved delays in enforcement could allow polluters to avoid clean up duties.

IDEM approved an extension for a tire dump cleanup in South Bend. IDEM photo

IDEM approved the extension of a cleanup deadline at the Alternative Two LLC waste tire storage site in South Bend. The facility is registered to hold the equivalent of 12,500 passenger tires, but in 2012 IDEM inspectors found the company had exceeded that number by “hundreds of thousands of tires.”

IDEM agreed to extend the cleanup deadline by a month.

The agency also agreed to extend the deadline for the Clark-Floyd Landfill to respond to questions about how the facility plans to deal with issue like leachate and wastewater disposal and stockpiling waste after having violated some regulations.

A majority of requests were denied by IDEM, but the agency promised leniency in enforcement.

FCA US LLC, which owns the Kokomo Casting Plant, asked for an extension for compliance testing for its reverberatory furnace. IDEM denied the request, but offered an alternative.

“At this time, IDEM cannot approve your request to extend the permitted compliance testing deadline. Testing after the date specific in the permit constitutes a violation. However, if FCA US LLC notifies this office within 10 days of resuming operations of Reverberatory Furnace 7RF and compliance testing is adequately performed within 120 days from the date Reverberatory Furnace 7RF resumes operations, no enforcement action will be taken for failing to test before the original deadline stated in your permit,” wrote Phil Perry, chief of the Office of Air Quality’s compliance and enforcement branch.

It is unclear how long IDEM will continue its “enforcement discretion” policy, but it may end sometime around the end of the governor’s stay-at-home order, which is slated to end May 1.

The governor may decide to extend the order, which he has done once before.

The number of COVID-19 cases continues to rise. Marion County, home to Indianapolis and the headquarters to most Indiana state agencies, has suffered the most deaths from the disease and most positive cases.

IDEM Releases COVID-19 Noncompliance Requests