Industrial polluters in Indiana and the rest of the U.S. may have been providing inaccurate water pollution data to state and federal environmental agencies for years, but the federal government does not have a way to assess the data, according to a new report.
In Indiana, whistleblowers have warned about concerted attempts to mislead state and federal agencies that collect water pollution data.
The Government Accountability Office found that the data industrial polluters submit to the U.S. Environmental Protection Agency to comply with the Clean Water Act often is incomplete and inaccurate.
Despite knowledge of an overall decrease in enforcement efforts during the previous two administrations and internal control deficiencies in its water pollution permitting program, the GAO found that the EPA does not currently have a plan to assess the overall accuracy of the data, an oversight that could have a negative effect on human health and the environment.
Under the Clean Water Act, it is illegal to discharge pollutants into waters of the U.S. without a permit. The EPA issues permits through its National Pollutant Discharge Elimination System. The NPDES permits set pollution discharge limits and reporting requirements.
The Clean Water Act allows the federal government to authorize states to establish their own permitting program to enforce federal regulations. In Indiana, the Department of Environmental Management manages NPDES permits through its Office of Water Quality.
Permit holders are required to submit discharge monitoring reports to IDEM, detailing how much of the allowed pollutants the permit holder has discharged into waterways.
Permit holders are responsible for confirming the accuracy of the reports submitted to IDEM, including whether they violated their permit parameters. IDEM can undertake informal and formal enforcement actions if permit violations are found.
IDEM and other states submit the reports to an EPA information management database, which the EPA’s Office of Enforcement and Compliance Assurance uses to track compliance.
The GAO found that problems with the reliability of data submitted by states muddled the tracking of compliance and enforcement activities in individual states.
“It is unclear how state NPDES compliance and enforcement activities have changed nationally since 2015 because of problems with the quality of the data that states report into [the information database]. Specifically, because of accuracy and completeness issues with the data, as well as limited information on data quality across the states, the data are not reliable for the purpose of reporting changes in state NPDES compliance and enforcement activities conducted annually since 2015,” the report concluded.
According to the EPA’s Enforcement and Compliance History Online State Dashboard, which displays the data submitted to the EPA, Indiana has the most NPDES-permitted facilities it has had since at least 2012.
Even with a record number of permitted facilities in the state, the EPA database points to significant federal permitting compliance, with the number of facilities violations, enforcement actions and penalties at the lowest they have been in the past decade.
But the positive trend could be a mirage, as data submitted to states and then forwarded to the EPA can be inaccurate or the result of data manipulation.
A Burns Harbor steel mill formerly owned by Luxembourg-based ArcelorMittal S.A. recently came under scrutiny due to questionable water sample testing practices.
In 2019, ArcelorMittal Burns Harbor admitted releasing excess levels of cyanide and ammonia into the Little Calumet River that resulted in the killing of thousands of fish and the closure of public beaches on Lake Michigan.
The release led to increased scrutiny and sampling requirements from IDEM.
The inspectors found during the November 2019 inspection that ArcelorMittal Burns Harbor, through its contracted laboratory, Microbac Laboratories Inc., would reanalyze samples that initially indicated a permit exceedance until the samples showed a favorable result. The company would then replace the results of the initial sample with the more favorable sample.
IDEM then issued the Burns Harbor facility a Notice of Violation in February 2020 for multiple exceedances and reporting violations, with the threat of a daily $25,000 fine if the violations were not corrected.
ArcelorMittal denied it had attempted to manipulate data, saying it reported data it received from “certified, independent laboratories.”
In April 2020, a whistleblower claiming to be a Microbac employee sent a warning to IDEM, informing the agency that ArcelorMittal was only interested in minimizing fines and that his laboratory was helping the company achieve that goal.
Through a records request, the Indiana Environmental Reporter recently obtained a redacted copy of the email.
“The fish kill that was a result of ArcelorMittal has also brought IDEM to our laboratory, and our handling of the samples has come under investigation,” the whistleblower wrote. “I’m not sure how cooperative management has been at Arcelor and Microbac, but since the initial event I feel as if management has been trying to purposefully make it difficult for IDEM and the EPA to accurately track what [Microbac} and [ArcelorMittal] have done analytically.”
The whistleblower said Microbac attempted to obfuscate test results through its storage of effluent samples and various other methods and offered to help IDEM find out more.
“I’d like to assist IDEM’s investigation in any way I can, as I believe that [ArcelorMittal] has broken the law and been further disobeying regulations. I have even heard from some of the field members here that people at [ArcelorMittal] who oversee the sampling at Burns Harbor are mad at IDEM and starting to not feel like complying. Though this is by word of mouth, if it is true, I’d like to help because I know Arcelor is not interested in protecting the environment and only wants to minimize their fines,” the whistleblower wrote.
IDEM responded to the whistleblower, but it is unclear whether IDEM asked the person to elaborate on other potential violations.
IDEM did investigate in June 2020, inspecting the Burns Harbor facility and Microbac’s laboratory in Merrillville, finding sample storage violations, insufficient glassware cleaning that may have affected testing accuracy, inaccurately calibrated water acidity analysis machines and breaks in water sample chain of custody.
According to state records, ArcelorMittal continued having self-reporting violations until late 2020, when the company sold all of its U.S. assets.
The monitoring shortcomings at the Burns Harbor steel mill may be happening at other NPDES permitted sites, according to the GAO’s findings.
This year alone, IDEM has cited dozens of permitted facilities for monitoring deficiencies.
IDEM told the Indiana Environmental Reporter that the NPDES permit program is structured as a self-monitoring program under which permit holders are obligated to conduct monitoring in accordance with their permit while the agency provides regulatory oversight. IDEM said it can require corrective actions be taken and can conduct independent sampling and analysis on its own, it circumstances warrant the intervention.
The agency may have difficulties fulfilling that role as it attempts to accomplish its federally mandated responsibilities with the third-lowest budget allocation in a decade. The agency’s $123 million budget is $25.7 million dollars smaller than it was a decade ago.
The agency may also be taking on even more responsibilities from the federal government, as the Indiana Legislature voted to establish a state coal ash permitting program subject to EPA approval.
The EPA has not said what actions it would take to correct deficiencies pointed out by the GAO report.