Published 7:00 AM EDT Aug 6, 2020
What do a coal mining company, a local church and a community college have in common? They all asked for leniency from the state, arguing the coronavirus pandemic is interfering with their ability to comply with laws that protect the public from pollution.
Indiana’s environmental agency has been flooded with requests to relax enforcement of rules and regulations over the last four months: extensions to reporting deadlines, suspensions of sampling requirements, permissions to use technicians with expired certifications, etc.
The requests came in swiftly after the agency announced its COVID-19 discretionary policy in early April, the majority relating to a specific deadline or report.
But some polluters sought blanket relief.
And that left government officials, and environmental watchdogs alike, grappling with the same question. Which of the more than 80 requests are legitimate hardship pleas, and which might be little more than corporate overreach?
“Are there companies that will really try to take advantage and actually increase pollution discharges or try to let some of their requirements slip?” asked Tim Maloney, senior policy director at the Hoosier Environmental Council.
“We certainly expressed concerns with the policy itself when it was announced,” he said, “so those concerns remain and it really depends on how this policy actually plays out in practice.”
In March, the EPA announced that it would use “enforcement discretion” when facilities failed to meet requirements, allowing the federal agency to suspend fines and other penalties for noncompliance. This also put the states — as the arbiters of the day-to-day implementation of environmental protections — on the front lines of fielding these requests.
The Indiana Department of Environmental Management said it expects regulated entities to do all that they can to remain in compliance. The policy does not include any blanket waivers, the agency added.
“The guard rails that protect Hoosiers and the environment are very much in place,” agency spokeswoman Sarah Bonick said, “and IDEM continues its responsibility to protect human health and the environment.”
What constitutes a violation?
Bonick said that just because an industry or company mentions “COVID,” that doesn’t mean their request will automatically be approved.
“If someone is claiming that simply because the virus still exists they can’t meet some requirement, and there is no evidence that the requirement cannot be met based on the circumstances, IDEM would not consider that a mitigating circumstance,” Bonick said.
Each request for leniency is supposed to outline a specific reason the pandemic interfered with compliance, and some have raised legitimate concerns, said Indra Frank, the director of environmental health and water policy at Hoosier Environmental Council.
One facility in Seymour — a full service travel center — said it likely would not be able to submit its monitoring report on time because the facility’s certified operator was in the hospital with coronavirus. Several other small facilities — such as local churches, Amish schools or libraries — asked to suspend water sampling because they had closed and no one had access to the building and water.
In those cases, IDEM usually offered some leniency with assurances that the facilities would test the water prior to opening. They also provided guidance about flushing pipes to ensure no issues with standing water.
For many of the other extension requests, IDEM said it did not have the authority to change deadlines outlined in the permit. Going past a deadline “constitutes a violation,” the letter responses would say. However, the letters would continue that if the requirement was met by a certain date, that “no enforcement action will be taken for failing” to meet the deadline.
The agency said it reviews the circumstances of each request individually. That includes the severity of the alleged violation, the level of compliance prior to the violation, whether there was prompt notification, and also the resources available to the agency.
Still, it was questionable whether some of the requests met IDEM’s guidelines, according to IndyStar’s analysis of the records.
On the same day that the EPA announced its new policy, Marathon Petroleum Corp. sent a letter to the head of IDEM, Commissioner Bruno Pigott. This letter requested broad or blanket “temporary relief” at more than 15 stations across the state, asking for permission to delay or skip requirements for pollution monitoring, leak detection and repair, etc.
“It is incredibly broad and looks as though they are asking to be relieved of almost all environmental regulations,” Frank said. “It’s worrisome because there were things like leak detection, permission to accumulate additional hazardous waste, groundwater remediation and spill prevention in there.”
She pointed out that this is especially important and Marathon has been responsible for several spills in Indiana over the years, including as recently as 2018.
Marathon did not respond to IndyStar’s requests for comment.
The EPA policy announced in the spring seemed to shape many of the requests that came in. Marathon’s letter listed 10 regulatory categories with which the company said they might not be able to comply — and eight of those categories were in the EPA memo.
IDEM told IndyStar that it denied Marathon’s request, and told the company to submit more specific follow-up requests if and as they arise. Such a follow-up was not found in an IndyStar review of the available documents.
A few other requests also came in more as a notification, rather than asking permission.
One came from the Gibson County Coal company near Evansville. This notice stated that the company’s mine in southwest Indiana had emitted unsafe levels of ammonia into the nearby waterways, and the company expected to continue polluting the water with ammonia and suspended solids for the duration of the pandemic.
That was because the company was using extra bleach to disinfect its facilities and fewer people were onsite, so there wasn’t as much water in the pipes to dilute it, according to the notice.
But Gibson County Coal has repeatedly violated the Clean Water Act in recent years, releasing suspended solids in levels that exceed its permit, according to EPA data.
Maloney said that is the bigger concern.
“There seems to be a chronic problem at Gibson County Coal that started long before the pandemic with the same issues,” he said. “IDEM should scrutinize these requests or investigate those that don’t seem appropriate or if it appears a company is trying to take advantage.”
IDEM said that it has contacted the company after receiving the notices, and Gibson Coal has agreed to hold this wastewater and haul it once a week to “negate a discharge of high ammonia” into the waterways.
Alliance Inc., which owns the mine, did not respond to IndyStar requests for comment.
Discretion for how long?
IDEM has long had a discretion policy. It only recently added coronavirus-related issues as ones that could be a “significant contributor” to a violation.
Indiana has made more information on the requests available to the public than some states have. IDEM has uploaded the requests to its online Virtual File Cabinet.
Other states have received many requests for relaxed enforcement, too.
At least 70 hog feedlots in Minnesota and Iowa asked for permission to either house extra animals or dispose of animal carcasses because meat-packing plants temporarily closed or slowed production, according to NPR.
And oil and gas companies have asked officials in Pennsylvania, Texas and Arkansas to back off on enforcement of a wide range of environmental regulations, including checking for leaks in storage tanks and measuring pollution from smokestacks, the same article said.
IDEM said that this enforcement discretion policy will continue in some iteration through the end of the public health emergency, in compliance with the governor’s executive orders. That said, the agency anticipates that as operational restrictions associated with the outbreak are lifted, fewer requests for extensions and the exercise of enforcement discretion will come in.
When that will happen, however, is unclear. Indiana has seen the number of new cases on the rise in July, causing some concern among both state and federal health officials.
The EPA said that it will follow up with state authorities if the federal agency notices that a facility did not comply with regulations during the pandemic.
Call IndyStar reporter Sarah Bowman at 317-444-6129 or email at email@example.com. Follow her on Twitter and Facebook: @IndyStarSarah. Connect with IndyStar’s environmental reporters: Join The Scrub on Facebook.
IndyStar’s environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.