The Indiana Department of Environmental Management (IDEM) has been in the news lately due to several decisions related to its enforcement responsibilities and funding of local air agencies.

While the debate goes on whether IDEM’s decision to dissolve its separate Office of Enforcement and integrate the enforcement staff back into the program offices is a wise and efficient one, the Office of Air Quality is moving forward with development of a new process to combine enforcement tasks with its ongoing compliance (inspection and testing) functions.

The air program is relying on a well-known “continuous improvement” tool called Kaizen to jump start the integration. (For those of you unfamiliar with the Kaizen approach — it examines each step of a process in an attempt to eliminate unnecessary ones, reduce total process time and add value to the resulting program based on input from stakeholders, both internal and external.)

The results of the Air Enforcement Kaizen event were “rolled out” on February 13, 2009, within IDEM. There are several significant changes adopted through this process review which will be implemented over the 90 days.

The key changes which impact Indiana businesses are:

  • There now will be one person within the Compliance and Enforcement Branch who handles a potential non-compliance event, from onsite inspection to pre-Notice of Violation communications with a source, through the N.O.V. negotiation and settlement process and eventually ending with an agreed order. Current inspectors and enforcement managers will be cross trained over the next 90 days to handle each phase of inspections, compliance and enforcement with senior staff available to advise for complex matters.
  • This process change could be very helpful to permit holders by providing an opportunity to interact with IDEM sooner in the pre-enforcement process and possibly avoid a Notice of Violation and a subsequent agreed order. The downside may be that inspectors assigned to particular industrial sectors or regional areas of the state may no longer have those same assignments or inspectors may have less experience with your business. While the idea of early interactions and communications prior to the issuance of a Notice of Violation would be a significant improvement to the current process, a word of caution: such discussions with IDEM might occur without the permittee’s full understanding of its legal rights and responsibilities, thus putting the source at a possible disadvantage if the matter goes to a Notice of Violation without concurrent legal advice on the regulatory requirements.

Finally, while this Enforcement process improvement has been initiated by the Office of Air Quality, it appears that the proposed process changes will likely be adopted by the other program offices (water and land quality) in the very near future.