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Re: E-M:/ facts on deq enforcement



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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At 10:49 AM 5/10/1999 -0400, you wrote:
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>Enviro-Mich message from Dave Dempsey <davemec@voyager.net>
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>
>A DEQ spokesperson recently responded to criticism by a Democratic
>legislator about the department's lax enforcement policies by saying, "I'm
>really tired of them throwing out these generalities.  Clearly the numbers
>don't show it."  He said DEQ has opened 267 cases since October 1, 1995.
>

{SNIP}


>There is also word the agency will be bringing some high-profile cases in
>the near future to ward off further criticism of its lackluster enforcement
>performance.
>
>So perhaps the criticism is paying off after all.  The measure will be
>whether the enforcement effort fades after generating a few headlines.
>

Here's some other measures.....

A review of outstanding unresolved federally significant air violations at 
EPA Region V's web site....

http://www.epa.gov/ARD-R5/enforce/hpmisvl.txt

....shows that Michigan is abdicating the enforcement lead to U.S.
EPA about 58% of the time.   For this April 2, 1999 report, there are
30 state cases on federal law violations and 42 EPA Region V cases.

This does show some improvement from September 9, 1998 when
EPA Region V had enforcement lead on 76% of the federally 
significant air enforcement cases.

However, this also is not the only measure.  In addition to criminal 
enforcement penalties, you must also look at civil enforcement 
penalties.   Michigan's penalties on civil enforcement administrative consent 
orders can be pretty low, given the maximum $25,000 per day 
penalties available in the air section of NREPA.

For example, Michigan Air Division's recent newsletter shows one
case, a GM Foundry in Saginaw, with only a $25,000 penalty for 
installation of a major offset source without proper permits, in violation 
of particulate emission limits and causing serious community 
odor problems.   That is a slap on the wrist and probably doesn't
come near the penalties that would have been imposed by EPA
(except they wouldn't deal with the odors).

Another is a $10,000 penalty for Hemlock Semiconductor Corporation
and its releases of hydrogen chloride that required an evacuation of
the area community around the plant.

Another is a consent order with only a $5000 penalty for Lakeland 
asphalt, who violated 4 different requirements, including violations of
an existing permit and failure to get a permit for new equipment.

Another Michigan trend are "supplemental environmental projects"
in lieu of the payment of penalties.   However, in a case with 
Mead Paper a couple of years ago, that company was allowed to 
make contributions to school environmental education programs
in lieu of paying a part of penalties.  Essential the company was
allowed to turn a penalty into a PR expense!!   This was for 
serious violations on failure to operate process and monitoring
equipment.


Another measure that is much more difficult to come by with 
hard information is the length of time from a company enforceable
offense to the time it is detected and noticed; and then the 
length of time from the notice of violation to adoption of a consent
order or consent judgement.

Finally, one trend in the past couple of years in Michigan is using
court ordered consent judgements to preclude all meaningful
public participation in enforcement settlements.   Under this 
"scam" to obstruct public participation, 
Michigan will be in negotiations for months with 
a polluter on the terms of a settlement agreement.  Even though
terms of the draft agreement are shared with the company,
Michigan DEQ will claim a phony attorney-client privilege against
disclosing such a draft agreement to the public, and may also 
declare other pertinent enforcement documents off-limits on the 
same basis.

Then, a "sweetheart" lawsuit complaint is filed with a federal
or state court and a motion for entry of a consent judgement is
filed the same day, all without any notice at all to the public.  The 
judge then signs the consent judgement and it is finalized and 
the public never gets a chance to comment on whether the 
consent judgement complies with law or is in the public interest.

In federal law, regulation and court rules, there are procedures
in place to prevent this kind of thing from happening.   For example, 
federal consent judgements are "lodged" with the federal court
and a 30 day comment period is announced by the Department 
of Justice in the Federal Register.  Michigan, however, does no
such thing.
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Alex J. Sagady & Associates        Email:  ajs@sagady.com

Environmental Enforcement, Technical Review, Public Policy and
Communications on Air, Water and Waste Issues
and Community Environmental Protection

PO Box 39  East Lansing, MI  48826-0039  
(517) 332-6971 (voice); (517) 332-8987 (fax)
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