Indiana Real Property and Environmental Law Report - Commentary on State and Federal Environmental Issues Affecting Indiana

The Great Lakes Commission (GLC) has released a new interactive map of the nearly 1,000 restoration projects being implemented under the Great Lakes Restoration Initiative (GLRI). The interactive map is available on the GLC website. 

It includes map overlays of Congressional districts, and state and county boundaries. The website references restoration projects funded in fiscal years 2010-2012.  It also includes searchable project table.  43 of the GLC projects are in Indiana.

When county or congressional district boundaries are turned on, the map shows what county a project is located in or which Member of Congress represents the district and the percentage of the district that lies within the Great Lakes Basin. The map also shows separate contaminated sediment cleanups implemented under the Great Lakes Legacy Act program.

The website does not include some projects focused on research, monitoring, public education and other broad-scale activities not focused at a specific site. The Commission has also produced state-specific factsheets showcasing how the GLRI is benefiting each of the eight Great Lakes states.

You can find the interactive map here.

IDEM has the permit applications and planning and zoning authorities in Harrison and Jackson Counties will grant approval – or not – for the expansion of confined hog operations numbering 4,000 head each.

In Elizabeth, a town in Harrison County, D Livestock, Inc. operates a 4,000 head facility that it seeks to double in capacity.  And roughly 50 miles north, near the Jackson County seat of Brownstown, another farmer hopes to obtain zoning approval and IDEM permitting for a similar operation.  Both are likely to meet stiff opposing, though both are located in rural counties with a significant agricultural component to their economies.

Neighbors of the D Livestock, Inc. farm near Elizabeth have appealed the Indiana Department of Environmental Management’s approval for the expansion, which has delayed the issuance of a final permit.  Opponents also plan to file a lawsuit against the farm owners and their corporation.  The Jackson County permitting and zoning processes are not so far along, but neighbors are making similar arguments.

The assertions include the standard arguments: contaminated groundwater, other health risks, and lowering of property values.

The D Livestock, Inc. operation includes spreading manure over their own fields.  IDEM reviewed the application and approved the permit in March.  Thirty-three neighboring property owners to filed an appeal last month.  The appeal maintains that the farmland already is being used to apply manure and additional spreading will overload the capacity of the land.  The appeal also alleges that additional manure from 4,000 more hogs would harm surface water and groundwater and that there has been no engineering study supporting the permit.

The Office of Environmental Adjudication will hold a hearing.

D Livestock, Inc. has been in compliance since opening in 2007.  The Jackson County operation, if approved, will be new, though the county itself is host to roughly a half-dozen such facilities.

My wife's cousin - let's call him Dan - called me to discuss an environmental issue on his family's farm a few years ago. 

These are folks who farm several thousand acres in southern Indiana, so I was thinking it could be any number of things. But it wasn't anything I expected to hear.

As it turns out, one of Dan's farms lay adjacent to a conservation club.  The ground immediately adjacent to the club was far less productive than neighboring dirt. He attributed the lack of productivity to the club.

"What are we talking about here, Dan?"

"Well" he said, "you know how the club has its shooting range next to the farm - and you know all the outings, and the contests, and how the high school trap shooting team used the range for 50 years or more?. The buckshot lands in our field"

"Yea, I know that.  So what?"

"I think all that lead in the shot landing in our field has contaminated our ground. The crops won't grow."

Don't ever let it be said that farmers don't know their chemistry.  As it turns out, Dan was absolutley correct.  And we addressed the issue.  That's another insurance claim story for another post.

But I thought about that today as I read about a lawsuit filed yesterday in the DC District. My first thought was that we may have just another group of environmental organzations hugging a tree or two.  My second thought was my experience with Dan's case.

A group of conservationists sued the EPA on Thursday to force regulation of ammunition whcih indirectly kills endangered California condors.  The organizations assert that lead poisoning from ammunition kills not only condors but eagles, swans, loons and other birds that feed on dead animals in the wild. The lawsuit, filed in federal District Court in Washington, DC, asks the EPA to initiate a public process to determine whether that ammunition can be controlled. The complaint does not, however,  ask for a ban.

The Complaint is here.  Trumpeter Swan v. EPA.pdf

The same groups filed a petition with EPA and it responded in April - saying it does not have the authority under the Toxic Substances Control Act to regulate lead ammunition. Furthermore, the agency said the petition was similar to one filed by some of the groups in 2010 and declined to review the most recent one.

Lead poisoning has long been recognized as one of the leading causes of death of the condor. They once numbered in the thousands across North American but were nearly extinct in the early '80s.

So what have we learned?  We learned what we already knew.  Even indirectly, lead has consequences. No doubt this will become a political issue. It shouldn't - but it will.

The Indiana Department of Environmental Management filed a lawsuit against VIM roughly three years ago, contending it was improperly accepting waste wood containing glues, resins and other substances at its facility near Elkhart. A settlement was reached, but VIM was fined $150,000 after it failed to meet a June 2011 deadline to remove the wood.

The Elkhart Superior Court rejected an April 2012  request by the former wood recycling plant operator that the $150,000 fine against the now defunct company be waived. VIM’s operator, Ken Will, the Court last month to review its January order.

The Attorney General’s Office and IDEM filed suit against VIM in December 2009 over a large pile of industrial wood waste piled on the wood recycler’s grounds, west of Elkhart. State officials alleged that VIM illegally accepted the material, lacking the proper state permit, and had sought its removal. 

EPA also monitored the site, as a result of smoldering and burning wood piles.   

A settlement was reached requiring the gradual removal of the wood, but VIM missed the June 2011 deadline leading to the $150,000 fine.  Soil Solutions, which bought out VIM in July 2011, actually got rid of the disputed wood, not VIM or Will. 

In addition to the $150,000 fine for the six months VIM had been out of compliance with an accord to get rid of a disputed pile of wood waste, VIM has to pay $2,800 in attorney fees.  Will said in his response that the now defunct firm lacked money to pay the penalty.  The AG's office apparently intends to pursue collection, but likely stands behind other creditors.

The EPA and the Department of Justice announced that BP North America Inc. has agreed to pay an $8 million penalty and to invest more than $400 million to install state-of-the-art pollution controls and cut emissions from BP’s petroleum refinery in Whiting.  The Whiting facility has a refining capacity of approximately 400,000 barrels per day, and is the 6th largest refinery in the United States.

The DOJ said that BP North America had not lived up to all of its obligations under an earlier settlement agreement and committed new violations of the Clean Air Act at its Whiting refinery. The complaint alleged violations of Clean Air Act requirements at the Whiting refinery in connection with construction and expansion of the facility, as well as violations of a 2001 Consent Decree with the company that covered all of BP’s refineries and was entered into as part of EPA’s Petroleum Refinery Initiative.

The settlement will require the installation of pollution controls on the largest sources of emissions at the Whiting refinery, including extensive new controls on the refinery’s flaring devices. Under the settlement, BP will install new equipment that will limit the amount of waste gas sent to flaring devices in the first place, as well as implement controls to ensure proper combustion efficiency for any gases that are burned in a flaring device.

The requirements, similar to those included in a recent settlement with Marathon Petroleum, are part of EPA’s national effort to reduce emissions from flares at refineries, petrochemical and chemical plants.

In addition to the controls on the refinery’s flares, the settlement will also impose enhanced controls on wastewater containing benzene and providing for an enhanced leak detection and repair program. It settlement also requires the Whiting refinery to spend $9.5 million on projects at the refinery to reduce the emissions of greenhouse gases.

BP will perform a supplemental environmental project in which they will install, operate and maintain a $2 million fence line emission monitoring system at the Whiting refinery and will make the data collected available to the public by posting the information on a publicly-accessible website. Fenceline monitors will continuously monitor benzene, toluene, pentane, hexane, sulfur dioxide, hydrogen sulfide and all compounds containing reduced sulfur.

The State of Indiana, the Sierra Club, Save the Dunes, the Natural Resources Defense Council, the Hoosier Environmental Council, the Environmental Law and Policy Center, and the Environmental Integrity Project also joined in this settlement.

"Ladies and gentlemen of the jury, all the State offers to you today is a case built upon circumstantial evidence.  There is no eyewitness to the crime." 

If you've ever tried a jury (particularly a criminal case); in fact, if you've ever watched television, you've heard that refrain.  As attorneys, we know that circumstantial evidence, particularly evidence built upon scientific study can be compelling. 

Right now, with the earthquakes in Ohio, that's all we have: circumstantial evidence.  But analysis will soon tell us whether the 4.0 magnitude earthquake in Youngstown, Ohio are a result of the disposal of waste from the hydraulic fracturing drilling process.  Two earthquakes occurred close to the bottom of a 9,200-foot-deep disposal well where for months, brine and other liquid waste from natural-gas wells had been injected under pressure. They were the 10th and 11th earthquakes to occur near the well since March 2011.

The finding provides further evidence to support what some scientists had begun to suspect: that the waste products from fracking.  Hydraulic fracturing (fracking) is the process  that is used to extract natural gas from shale.  Seismologists suspect that the waste may have migrated from the disposal well into deeper rock formations.  Similar earthquakes occurred in Texas and Arkansas.

The owner of the disposal well, D & L Energy, entered into an agreement with the Ohio Department of Natural Resources to cease operations indefinitely.  ODNR also suspended operations on five deep well sites in the Youngstown area until the analysis of the 4.0 earthquake is completed. The D & L Energy wells are among 177 "class two" deep wells in Ohio operating with permits under the Clean Water Act.

A seismologist at Columbia University said that circumstantial evidence suggests a link between the earthquake and the high-pressure well activity.  Data collected from four seismographs set up in November in the area confirm a connection between the quakes and water pressure at the well.

Reports indicate that this is not the first time Ohio tremors have been linked to deep well drilling.  A 4.2 magnitude earthquake in Ashtabula, Ohio in 2001 was believed to be due to deep-well injection.

Law meets science.  Hydraulic fracturing and wastewater disposal.  Clean Water Act permitting.  The seismic activity in Youngstown leads to a great many questions for which neither law nor science currently have answers.

A total of 20 additional coal ash dump sites causing groundwater and soil contamination in 10 states, including Indiana. The other states are Florida, Georgia, Illinois, Iowa, Kentucky, Nevada, South Carolina, Tennessee and Texas.  The sites were included in a new report by the Environmental Integrity Project (EIP).

Since 2010, EIP claims to have identified 90 coal ash ponds and landfills with  groundwater contamination that it alleges have been overlooked in reports prepared by the Environmental Protection Agency (EPA).   

19 of the 20 of the newly identified coal ash dump sites have contaminated groundwater with arsenic or other toxic metals exceeding  at least one Safe Drinking Water Act Maximum Contaminant Level (MCL) as well as other health-based standards.  The Indiana site has contaminated soil along a rail trail with arsenic 900 times the federal screening levels for site cleanups.

In the course of environmental investigations undertaken as part of a rails-to-trails project in Bloomington, extensive arsenic and lead contamination was found in a railroad right-of-way as a result of coal ash and cinders used for ballast for the rail bed. Sampling along the 2.5-mile section of the former CSX railroad right of way found the following:

Arsenic: 97.8% of 46 samples taken from cinders and ballast and soil samples to a depth of one foot in the northwest section of the trail exceeded the Indiana Department of Environmental Management’s default closure levels (DCL) for residential (3.9 mg/kg) and industrial (5.8 mg/kg) arsenic-contaminated soil. The highest concentration of arsenic in a sample, 347 mg/kg, was 88 times higher than the DCL for residential use and 60 times higher than the DCL for industrial use of soils. It was also almost nine hundred times the EPA screening level of 0.39 mg/kg for arsenic.

Lead: Lead also exceeded the residential use DCL of 81 mg/kg in a majority of samples (62.5%). The highest lead concentration, 1,200 mg/kg, was 14.8 times higher than the DCL for residential use, 5.2 times higher than the DCL for industrial use of soils, and three times the EPA screening level of 400 mg/kg.

You can find the press release from EIP, the complete report, and EIP's letter to Congress at its website.  

EPA maintains that there are about 595,000 active UST’s at about 214,000 sites in the United States.  On November 18, 2011, the Federal Register published Revising Underground Storage Tank Regulations—Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training, that would update and expand the Environmental Protection Agency’s original 1988 regulations for underground storage tanks (UST’s).

In view of EPA’s and state regulatory agencies’ claims of thousands of petroleum and hazardous chemical leaks each year, the Federal government has proposed stronger rules for underground storage tanks, with new requirements for containment, training, codes of practice and technologies.

The proposed rule comes in the wake of the March 2011 release of EPA’s Leaking Underground Storage Tank Corrective Action Compendium, which provides state and Federal leaking underground storage tank remediation specialists with resources and information.

The proposed new rule includes:

•New secondary containment and interstitial monitoring requirements for new and replaced tanks and piping;

•A requirement for installation of under-dispenser containment for new dispenser systems;

•Requirements for periodic spill, overfill, secondary containment, and release detection testing, along with periodic walkthrough inspections to prevent and quickly detect releases;

•Ending current exemptions for UST systems with field-constructed tanks. These 239 or so tanks, most owned by the Department of Defense, would now be subject to the requirements of 40 CFR part 280, regarding design, construction, installation and notification, operating requirements, release detection and other provisions.  Ranging in size from 20,000 to more than two million gallons, these tanks pose “a substantial threat to human health and the environment,” according to EPA;

•Ending similar exemptions for wastewater treatment tank systems that are not part of a wastewater treatment facility regulated under § 402 or 307(b) of the Clean Water Act. EPA exempted these and other tank categories from leak detection requirements in 1988 because monitoring technology for such systems was not available then, but it is now, according to EPA.

•Allowing for the use of new technologies in tank cladding and jacketing, non-corrodible piping, and operations and detections. The 1988 rule allows these tank technologies: coated and cathodically protected steel; fiberglass reinforced plastic; steel-fiberglass reinforced-plastic composite; and metal without additional corrosion protection, provided that a corrosion expert determines the site is not corrosive enough to cause a release from corrosion during the tank’s life. These would remain unchanged under the new rule.

•New training requirements for three UST system operator classes. Depending on the class, the training would emphasize spill prevention, system operation, corrosion protection, detection and emergency response.

•New training requirements for three UST system operator classes. Depending on the class, the training would emphasize spill prevention, system operation, corrosion protection, detection and emergency response.

EPA's proposal (all 89 pages) would affect a number of industries that use UST’s, including transportation (air, water, truck, transit, pipeline and airport operations), communications and utilities (wired telecommunications carriers and electric power generation, transmission and distribution).

The proposed regulations would apply to tanks that hold petroleum or hazardous chemicals, which are regulated under Subtitle I of the Resource Conservation and Recovery Act. They would not affect UST’s containing hazardous waste, which are regulated under RCRA Subtitle C.