Under Rauner, penalties sought against Illinois polluters have plummeted

Well before the Trump administration began shifting responsibility for enforcing environmental laws to the states, Illinois already had slowed down the policing of air and water pollution under Gov. Bruce Rauner.

A Tribune analysis of enforcement data shows that since the Republican businessman took office in 2015, penalties sought from Illinois polluters have dropped to $6.1 million — about two-thirds less than the inflation-adjusted amount demanded during the first three years under Rauner’s two predecessors, Democrats Pat Quinn and Rod Blagojevich.

Rauner’s enforcement record during the past three years also pales in comparison to the final year in office of the state’s last Republican governor, George Ryan. Adjusted for inflation, the penalties sought since Rauner took office are less than half the amount demanded as Ryan wrapped up his four-year term in 2002.

One of the main reasons enforcement is on the decline statewide is the Illinois Environmental Protection Agency has cut back sharply on using its most powerful tool: referring cases to the state attorney general’s office for civil or criminal prosecution.

During Rauner’s first year as governor, the EPA referred 73 cases to the attorney general — by far the lowest number since 1991. The annual average during his tenure is 80.

By contrast, the EPA sent 198 referrals a year on average during Blagojevich’s first three years in office and 144 during the same time period under Quinn, the Tribune analysis found.

“I have been dismayed by the sudden dropoff in the number of IEPA referrals to my office,” Attorney General Lisa Madigan said in a statement. “The failure to thoroughly investigate and refer violations of the laws has dangerous consequences for people’s health and the environment.”

For decades, slapping polluters with financial penalties has been a way to deter others from dumping toxic waste in environmentally sensitive areas, spilling noxious chemicals into water supplies or churning too much lung-damaging pollution into the air.

Even though some types of pollution have declined as regulations and lawsuits forced power plants and factories to clean up, new threats have sprung up in recent years, and scientists have discovered that dirty air and water are far more dangerous than previously thought.

New industries, including confined livestock operations and businesses related to natural gas fracking, have added to an already-busy workload for inspectors.

Illinois continues to rank among the top 10 states for the amount of industrial air and water pollution released into the environment every year, according to federal records. Federal data also show that Illinoisans still face some of the highest risks in the nation for cancer, lung disease and other health problems linked to toxic chemicals from industry smokestacks.

“To quote Abe Lincoln, law without enforcement is just good advice,” said Eric Schaeffer, a former chief of enforcement at the U.S. EPA who now runs the nonprofit Environmental Integrity Project.

“Penalties matter because they cost violators money, and that’s an incentive for other companies to stay in compliance,” Schaeffer said. “States and the EPA should work to make rules as clear as possible, reduce excess paperwork and encourage voluntary compliance. But those efforts don’t yield as much if nobody believes violators will be sanctioned.”

Unlike the U.S. EPA, the state environmental agency is prohibited from penalizing polluters on its own. The system created by state lawmakers requires the Illinois EPA to investigate threats to air and water quality and attempt to negotiate informally with companies unless there is an imminent threat to public health.

If a deal can’t be brokered, the agency is directed by law to refer the matter to the attorney general, who then can file a complaint in civil or criminal court seeking penalties and corrective actions.

Rauner’s office did not respond to multiple requests for comment. An Illinois EPA spokeswoman blamed the decline in penalties on Quinn, Rauner’s immediate predecessor, noting in an email that it takes two years on average to resolve cases sent to the attorney general.

The Tribune analysis found no significant drop-off in referrals during Quinn’s final years as governor.

In addition, Rauner’s EPA director, Alec Messina, didn’t mention Quinn when he acknowledged the steep decline in enforcement referrals during an October forum at the Thompson Center.

“Anybody who hears that automatically presumes the worst, right?” said Messina, who took over as the agency’s director in July 2016, replacing a career EPA staffer kept on from the Quinn administration. “Maybe it’s a new administration. Maybe it’s a lack of focus on some controversial issue.”

Other possible factors, he said, include a shrinking workforce at the agency and a renewed focus on working with small- and medium-sized companies to ensure compliance without taking legal action.

Asked during a recent interview to clarify his remarks, Messina said he has repeatedly urged the agency’s staff to crack down on polluters. “Enforcement is still critical to what we do,” he said. “It doesn’t change just because the person at the top changed.”

Rauner initially hired Messina to oversee environment and energy policy as top lieutenant in the governor’s office. Before joining the administration, Messina led a trade group that lobbied on behalf of industries regulated by the agency he now leads.

Under Messina’s direct watch, the number of EPA enforcement referrals ticked up to 79 in 2016 and 89 last year. More than a dozen of the referrals last year were for missed paperwork deadlines, records show.

One case that highlights the state’s sluggish enforcement system is unfolding in downstate Champaign County, where natural gas from a Peoples Gas storage facility has seeped into an aquifer that provides drinking water to 850,000 people across a wide swath of central Illinois.

In December 2016, shortly after the company alerted the EPA and other regulatory agencies about a leak from one of its gas wells, people living nearby began reporting milky bubbles in well water sputtering from their faucets — a sign of natural gas contamination.

Several homeowners in a rural area north of Mahomet said they were able to light their tap water on fire.

Despite the obvious threat to the facility’s neighbors and evidence suggesting natural gas might have spread farther into the Mahomet Aquifer, state officials did not refer the case to the attorney general’s office until October 2017.

The referral came from the Illinois Department of Natural Resources, the agency that regulates oil and gas operations, rather than the Illinois EPA, whose mission includes protecting the state’s groundwater.

Madigan filed suit nine days later, securing a court order that required Peoples Gas to provide bottled water to residents and take more aggressive action to determine the extent of the contamination.

Derric and Jodi Eisenmann said their family drank contaminated water for more than three months before they learned what had happened.

When they described the situation to their pediatrician, he urged them to stop bathing their 2-year-old daughter at their newly built farmhouse outside Mahomet, prompting them to shuttle her and their two older children to friends’ houses to shower with clean water.

“At that point I was in sheer panic,” Jodi Eisenmann said. “People say to us, “Why don’t guys just go someplace else?’ We can’t leave because nobody’s going to buy our house.”

Peoples Gas installed a device that reduced the amount of hazardous chemicals in the Eisenmanns’ tap water. But Matt Duco, one of the family’s lawyers, said EPA testing found the water was still unsafe to drink.

It took pressure from a local politician to prompt the EPA to investigate the gas leak. A few days before Madigan filed her lawsuit, a top agency official asked for a briefing from the DNR, saying Messina was getting “significant inquiry” about the water contamination from state Sen. Chapin Rose, a Mahomet Republican who represents the area.

Rose also wrote a scathing letter to the EPA and DNR directors complaining there had been “no independent or thorough scientific study … to determine the extent of the leak, where it stops and who is impacted.”

EPA inspectors later went door to door in the area and tested water from at least 40 homes. The agency declined to release results from what it has found so far, and has not disclosed any plans for a more extensive study of the aquifer.

The Illinois EPA finally referred its own case against Peoples Gas to the attorney general Jan. 5, more than a year after the company reported the leak.

The drop in state enforcement under Rauner comes amid a concerted attack on environmental programs by the Republican-controlled Congress and the Trump administration, which is shifting authority to the states while pushing to slash federal support for state environmental agencies.

Federal enforcement actions nationwide have declined significantly since Scott Pruitt took over as EPA administrator, the Environmental Integrity Project and others have found. Veteran staff at the U.S. EPA’s Chicago office said it has become more difficult to file cases under Pruitt, who as Oklahoma attorney general repeatedly challenged federal clean air and water regulations.

Pruitt’s new pick to lead the agency’s Chicago outpost, Cathy Stepp, is a former Wisconsin state official who rolled back enforcement of anti-pollution laws while serving in the administration of Republican Gov. Scott Walker.

Howard Learner, president of the Chicago-based Environmental Law and Policy Center, said cutbacks at the federal and state level threaten to erase hard-fought victories that led to cleaner air and water.

“If you don’t have enforcement, the good guys who follow the law are put at a competitive disadvantage,” Learner said. “It sends a message to polluting industries that the cop on the beat is looking the other way.”