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

USEPA and the DOJ have entered into a consent decree with CountryMark Refining LLC to pay a $167,000 civil penalty, perform environmental projects totaling more than $180,000, and spend $18 million on new pollution controls to resolve Clean Air Act violations at its refinery, located in Mount Vernon. The consent decree is here.  CountryMark Consent Decree.pdf

The original complaint alleged that the company made modifications to its refinery that increased emissions without first obtaining pre-construction permits and installing required pollution control equipment. The CAA requires major sources of air pollution to obtain such permits before making changes that would result in a significant net emissions increase of any pollutant. The complaint also alleged CAA violations related to flare operation, the New Source Performance Standards, and applicable requirements for leak detection and repair (LDAR). 

The pollution controls required by the settlement are intended to reduce air emissions by an estimated 1,000 tons per year. 

The settlement requires new and upgraded pollution controls, more stringent emission limits, and aggressive LDAR practices to reduce emissions from refinery equipment and processing units. The settlement also requires new controls on the refinery’s flaring devices, which are used to burn-off waste gases. The amount of pollution that flares emit depends on the total amount of waste gases sent to a flare and the efficiency at which the flare is operated when burning those gases. The settlement will ensure proper combustion efficiency for any gases that are sent to a flare and will also cap the total amount of waste gases that can be sent to a flare at the refinery. The flares requirements are part of EPA’s national effort to reduce emissions from flares at refineries, petrochemical, and chemical plants. 

The flaring efficiency requirements are part of EPA’s national enforcement initiative to improve compliance among petroleum refiners and to reduce significant amounts of air pollution from refineries nationwide.

This consent decree, and others, are available for review at  www.justice.gov/enrd/Consent_Decrees.html

Indiana's new confined animal feeding regulations went into effect on July 1.  They will require producers to change record-keeping and manure management practices.

Last fall, the Indiana Department of Environmental Management (IDEM) approved revised rules that altered the environmental management requirements of confined feeding operations and concentrated animal feeding operations. 

Indiana defines a CFO as "any animal feeding operation engaged in the confined feeding of at least 300 cattle, 500 horses, 600 swine or sheep, or 30,000 fowl, such as chickens, turkeys or other poultry." 

All CAFOs are classified as CFOs, but CAFOs house more animals and have previously had more stringent regulations and permit application procedures. Under the new rules, CAFOs have the option to continue to have CAFO permits or assume general CFO permit status.  CAFOs wishing to move into the CFO program had to have submitted their applications by June 29, 2012.  

If an operation wants to maintain their CAFO status, it will need individualized permits approved by IDEM.  Operators with individual CAFO permits will be required to create nutrient management plans accessible to the public and will need to keep records of daily inspections. 

There are mortality management requirements that must comply with the State Board of Health regulations found at 345 IAC 7-7. 

We now have new rules specific to CFO operators regarding winter manure application and soil phosphorus.  Under the new regulations, manure application on frozen and snow-covered ground is no longer permitted.  There are exceptions for emergency situations.  Operators can apply for special permits that allow for winter application if a farm was previously permitted with less than 120 days of manure storage. 

The new CFO rules also require that farmers apply manure to their fields on the basis of the soil's phosphorus content. Previously, manure was applied to fields based on soil nitrogen content and nitrogen needs for the coming crop. 

The regs require that soil phosphorus not exceed 200 parts per million by 2018.  Between now and then, farmers must monitor soil phosphorus concentrations and work to begin the very gradual process of reducing the phosphorus content of their fields.  As of July 1, July 1, 2012, CFOs cannot apply manure to soil with phosphorus levels higher than 400 parts per million. 

More information about the rule changes is available on the IDEM website at http://www.in.gov/idem.

You can find a regulations here: CFO Regulations.pdf

SB 168, which took effect July 1, creates a new Indiana Code section at IC 13-23-7-10.

It provides that the State may impose a lien on the property of an owner or operator of an underground storage tank, if they fail to register or pay certain fees.  IDEM must: (1) provide 30 days written notice before filing a lien; and (2) perfect a lien by recording the lien with the county recorder in the county in which the property is located.

The bill also adds a new section to IC 13-23-8-4 that allows a bona fide purchaser eligibility to receive funds from the underground storage tank excess liability trust fund if the transferee pays past due fees of the transferor in certain circumstances.

The Ralston Street lagoon.  One of Indiana’s most notorious toxic sludge pits.  And remediation is in in its initial phase – 26 years after the Consent Decree was lodged. 

 The Indiana Toll Road’s 1956 construction is thought to be the genesis of the borrow pit now known as the Ralston Street lagoon.  The lagoon is near Clark Road on Gary’s far west side, not far from the Grand Calumet River. The Gary-Chicago International Airport is just northwest of the lagoon. 

The lagoon is home to PCBs (polychlorinated biphenyls) - banned in 1976.  Because of its size — reportedly more than 500,000 cubic yards of sludge — trucking it to a landfill was not an option.  “It would fill Soldier Field and rise to 200 feet high,” said Daniel F. Vicari, an environmental engineer with CDM Smith, the company overseeing the epic cleanup. “

The remediation/containment plan for the sludge is estimated at $66.9 million. 

The EPA found significant evidence of PCBs in the sludge but none in the ground water. The Gary Sanitary District agreed to clean up the sludge in a federal consent decree ordered in 1986. 

The remedy is complex. a “long stick” excavator will dig a 60-foot deep trench around the lagoon.  Piping will transfer a slurry mix of clay powder and water to backfill the trench as the excavator digs. The resulting slurry wall surround the lagoon, effectively containing any contamination from leaching out. 

This first phase should be completed by November.  Then, work begins on solidifying the sludge and capping it, a process that could last until 2017. 

The cost is enormous: In 2011, the Gary City Council approved a 30 percent increase in stormwater fees to cover a $27.5 million bond for the cleanup.  In addition, the Dary Sanitary District spent nearly $1.2 million for replacement housing and moving expenses for residents – former owners of 6 acres now used as the staging area for crews cleaning up the lagoon.

In 2011, the Gary Sanitary District petitioned the EPA to declare the lagoon a Superfund site making it eligible for federal funding but the request was denied.

Here’s the timeline:

• 1962: Sludge dumping begins in borrow pit
• 1976: PCBs banned
• 1983: EPA sues Gary for violating Clean Water Act
• 1986: Consent Decree lodged, halts dumping
• 1988: Sludge dumping stops
• 2009: EPA announces $66.5 million cleanup plan
• 2011: City purchases residents homes, work begins on Phase 1
• 2011: City raises stormwater fees 30 percent to pay for cleanup
• 2012: Phase 1 of cleanup

Other documents related to the site.

EPA Final Decision 2009.pdf 

Technical Cost Assessment 2007.pdf

Photo attributed to the Post-Tribune.

For those of us with long memories - and with the human tendency to think that what was still is - it always surprises me when I read an Indianapolis Star article critical of a Republican admiinistration - virtually any Republican adminisitration. In particular the Daniels administration - which has been the darling of the national press for several years now.  But the Star is a Gannett paper now, so maybe the Pulliam family influence no longer holds quite the same power over the editorial page.

The last couple of days have been interesting, however, in view of the Star's analysis of Daniels' and IDEM's determined effort to eviscierate meaningful environmental policy. On June 3, 2012, Star reporter Ryan Sabalow wrote an detailed investigative piece entitled "Is Indiana Taking Proper Action Against Toxins in Our Waterways?"  His conclusion - IDEM isn't even close to engaging in proactive policymaking, nor in meaningful enforcement.

Sabalow's article was followed by an editorial on June 5: "Indiana's Water Cleanup Efforts a Trickle Compared to Other States".  The opinion piece begins:

It's not news that Indiana's waterways are among the nation's most polluted and most poisonous.

Nor is it a revelation that other states have put far more action and money into this critical challenge to public health than Indiana, which extols far more modest progress.

This is a state, after all, that has cut funding and staff for environmental protection despite consistently low rankings in virtually every area of water, air and soil quality.

It is a state with a long bipartisan history of environmental neglect, one whose current governor has shown open disdain for the "Employment Prevention Agency," as he dubs the Environmental Protection Agency.

Again, interesting reading - given the Republican-leaning history of the Star's editorial policy in the past.  Let's hope it continues.

The Fort Wayne Journal Gazette has an excellent editorial today related to IEDM's BP permit allowing the processing of tar sands at its Whiting refinery.  Earlier this week, 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 Journal Gazette writes:

"When the Indiana Department of Environmental Management issued a permit for BP’s expanded refinery to process tar sands oil from Canada, state regulators failed Hoosiers miserably. ... 

Fortunately, environmental groups and, later, the federal Environmental Protection Agency stepped in to insist that the Lake County refinery slash the amount of pollution that IDEM agreed to allow. As a result, BP has agreed to add $400 million worth of pollution-control equipment to reduce the amount of harmful chemicals that will be released into the air by 4,000 tons a year. 

The massive refinery in Whiting, about 20 miles southeast of Chicago, will process more of the high-sulfur Canadian tar sands oil than any other refinery in the nation. This oil has a higher level of impurities. 

BP will add three new flares, the tall stacks with flame at the top that burn harmful gases, emitting pollution. IDEM signed off on BP’s prediction that the flares would never be needed. The environmental groups said the assumption was one of many errors in its permit application, and the EPA agreed.  

IDEM’s inexplicable approval of the defective permit offers more evidence that the state agency responsible for enforcing state and federal pollution rules is simply too lax. In 2007, The Journal Gazette documented the agency’s dismal performance in enforcing voluntary plans businesses develop to clean polluted sites. Two years ago, one of the agency’s top lawyers told enforcement officials that rather than cite all violations at a business, to “pick the most apt legal requirement(s) and cite only those.” 

BP should be commended for agreeing to the additional pollution controls. Perhaps the company is ultrasensitive to environmental issues following the cat- astrophic 2010 oil spill in the Gulf of Mexico. Still, Hoosiers should be glad the company and environmentalists agreed on a way that will preserve the $3.8 billion expansion, believed to be the biggest private-sector investment ever in the state. 

IDEM, on the other hand, has never explained why it wrongly approved the doomed BP permit. Hoosiers should demand answers."

IDEM was roundly criticized by environmental groups when the permit was issued; in part, because of the consequences to the environment; but also because many believed that this permit was additional evidence of the dismantling of IDEM by the Daniels Administration in service of heavy industry, to the detriment of the environment.

An explanation of IDEM's rationale would be nice. But unlikely.

You wouldn't think that a municipal corporation would want more wastewater to treat that it already has, but Gary does. 

Hobart has been paying Gary for many years to treat its wastewater.  This led to an Indiana Court of Appeals decision this past week.  Gary vs. IDEM and Hobart.pdf

The City of Hobart's wastewater is currently treated both at Gary's wastewater treatment facility and at its own, aging Nob Hill wastewater treatment facility. Hobart pays Gary for its use of Gary's facility. Hobart's Nob Hill facility discharges into a tributary of the Deep River and consistently struggles to stay within its permit limits. Deep River is an impaired water source for mercury.  

In 2004, Hobart requested a permit to construct a new 4.8 million gallon per day wastewater treatment plant. The proposed plant would allow it to shut down the Nob Hill facility and disconnect from the Gary facility.  Also in 2004, IDEM issued the requested an NPDES permit, granting Hobart permission to operate a new wastewater treatment plant to be constructed along the Deep River. The permitted mercury limits for the proposed Hobart facility are a daily maximum limit of 3.2 parts per trillion (ppt) and a monthly average of 1.3 ppt per day. These limits are substantially less than the limits currently permitted at the Gary facility. Because the new Hobart facility will not utilize combined sewer overflows, it would completely avoid the discharge of untreated sewage. 

Shortly after IDEM issued a permit for the construction of the Hobart facility, Gary filed a petition for administrative review of the Hobart permit with the Indiana Office of Environmental Adjudication. On January 19, 2010, the environmental law judge issued its findings of fact, conclusions of law, and final order in favor of IDEM and Hobart. The environmental law judge concluded that the mercury discharge limits in the Hobart permit would result in an overall improvement in water quality, and IDEM's decision to issue the permit complied with applicable law. 

Gary then filed a petition for judicial review in Marion Superior Court. After briefing and oral argument, the trial court issued its findings of fact and conclusions of law on March 26, 2011. As is noted in the trial court’s findings and conclusions, the paramount issue in this case is the parties’ interpretation of IDEM’s antidegradation requirement for outstanding state resource waters (OSRW). 

Gary then appealed the Marion Superior Court's order affirming the order of the Office of Environmental Adjudication, which upheld the Indiana Department of Environmental Managements (IDEM) decision to issue a permit to the City of Hobart to operate a new wastewater treatment plant. 

The Court of Appeals consolidated Gary's issues.  First, whether IDEM's interpretation of 327 IAC §5-211.7 was reasonable; and, II; and second, whether IDEM' s decision to issue the permit was arbitrary and capricious and not in accordance with the law or is unsupported by substantial evidence.  The Court of Appeals affirmed the Marion Superior Court's order. 

The Court said that IDEM’s interpretation of 327 IAC §5-2-11.7(a)(2) was reasonable in that it only required Hobart to comply with subdivision §11.7(a)(2)(A) and (B), but not §11.7(a)(2)(C), in its decision to issue the permit. And, although the Hobart permit allows a new source for discharge of mercury, because Hobart will be able to close its non-compliant Nob Hill Plant and treat its wastewater more effectively than it is currently treated by Gary’s facility, the Hobart permit will result in an overall environmental benefit to and will not cause a significant lowering of water quality in Lake Michigan and its tributary, the Deep River.

The Indiana Department of Environmental Management has announced that it will study sources of air pollution in Lake and Porter counties, as well as their potential health risks.  The idea for the study originated with the EPA's 2005 National Air Toxics Assessment. Six of the top 10 highest risk areas in Indiana were along the lakefront in and near East Chicago and Gary.

On June 2, 2012, surveys will be sent to industries along the lakeshore in Lake and Porter counties requesting current emissions data. Those surveys are to be submitted to IDEM within 60 days.  IDEM will also conduct a workshop this summer to assist industries with any concerns or questions they may have about the surveys.

IDEM will compile that data along with existing data from monitors and other previous studies to determine the sources of air pollutants and any potential health risks, including cancer risks.  The study also will look at air quality along the Borman Expressway and the Indiana Toll Road between Whiting and Porter.

HEA 1002 (PL 133) merges three rule-making boards into a single panel called the Environmental Rules Board.  The new law repeals the air, water and solid waste boards effective January 1, 2013.  In their place, we will soon have a 16 member (5 of those members ex officio) Environmental Rules Board — which takes effect July 1, 2012.  Of the remaining 11 members, one represents environmental interests. The board may appoint a non-voting technical secretary and legal counsel from names approved by the governor.

But the complexity of the specialized regulatory requirements for air, water, and solid waste may be beyond the capacity of the single agency.  Issues such as the impact of confined feeding operations on water quality, industrial air emissions, sludge from sewer plants, and everything in between, will now be handled by one agency.

To the extent that the former agencies were independent of IDEM, we had some assurance of state agencies with rule-making authority without reliance upon IDEM's processes.  In addition to the regulatory environment, both staffing and funding will now be an issue.  The end result of this legislation is most likely to be a weaker regulatory and enforcement framework. 

Marcia Oddi, editor and publisher of the excellent Indiana Law Blog and the author of many articles on environmental law, has written extensively on this legislation.  You can find her most recent post here and backtrack for her earlier commentary.  She opposed the legislation.

Rep. David Wolkins, who sponsored the bill, will also chair that summer study committee, which makes recommendations to the Legislature and agencies on environmental issues. Wolkins said his committee will take up the funding issue, among other issues.

"That was one of the major problems with that bill — there was no funding for the technical secretary. Everybody who was against combining the boards said, 'OK we'll accept it reluctantly if you'll have a full-time technical secretary who's not an employee of IDEM.' So we'll be looking at that funding question."

Sen. Beverly Gard, a Greenfield Republican who's been the Senate's leader on environmental issues for years, said she's doubtful funding can be found given the state's tight fiscal situation.

The Indiana Chamber of Commerce and the Hoosier Environmental Council both opposed the bill.  The environmental lobby was concerned about an agency that would provide weaker air, water and land pollution rules; business interests in precisely the opposite view, but the agency would implement tougher regulations.

As of January 1, 2013, the Water Pollution Control Board, Air Pollution Control Board, and Solid Waste Management Board will cease to exist.  The Environmental Rules Board will replace these agencies.

Both the Hoosier Environmental Council and the Indiana Chamber of Commerce support the summer study committee and to recommend that the state search for money to fund a technical adviser for the new board who is outside of IDEM's control to help guide ERB members through the issues.

IDEM and POET agreed to resolve an outstanding air quality issue.

IDEM alleged that on three occasions in 2010 and 2011, the POET ethanol plant in Alexandria operated its fermentation and distillation processes without a pollution control device.

The POET biorefining ethanol plant at Alexandria has agreed to pay a civil penalty of $28,000 to settle alleged air-pollution violations.

The agency says the violations were related to the section of POET’s operating permit regulating the control of volatile organic compounds and hazardous air pollutants.

The civil penalty also covers POET’s alleged failure to submit quarterly “deviation and compliance monitoring” reports in the third quarter of 2010 and the first quarter of 2011.

POET agreed to pay $5,640 to the state’s environmental management special fund. In lieu of paying the remaining civil penalty, the company agreed to make a cash payment of $22,560 to the Indiana Finance Authority to fund activities at a brownfield site in Alexandria. The brownfield project will be chosen by agreement of POET, IDEM, the city of Alexandria and IFA.

POET has 27 plants in seven states with a capacity of more than 1.6 billion gallons of ethanol, 9 billion pounds of high protein animal feed and thousands of pounds of bio-based oils and lubricants. POET provides development, design, engineering, construction, management and marketing services.  It has a second Indiana plant located in Portland.

The Indiana Department of Environmental Management says it has added a new agricultural liaison responsible for managing the agency's relationship with farms and ag-related businesses, groups and agencies.

The agency announced Wednesday that the liaison, Steven Howell, also will advise the agency about federal, state and local agriculture-related trends and issues.

IDEM say Howell has experience in agriculture and conservation as a congressional aide and as a field representative with Indiana Farm Bureau. He was also part owner and operations manager of a family grain and livestock operation in Jay County.

On December 29, 2011, the United States Attorney’s Office and the Environmental Protection Agency announced that the City of South Bend, Indiana has agreed to make an estimated $509.5 million worth of improvements to its combined sewer system to significantly reduce overflows of raw sewage to the St. Joseph River.  One well-known stretch of the St. Joseph River in South Bend, the East Race, is the site of an annual international kayaking competition and also is where Olympic kayakers and rescue workers periodically train.

South Bend discharges a total of over 2 billion gallons of untreated sewage into the river during 80 bypass events annually. After implementing the improvements required under the settlement, South Bend will reduce the number of raw sewage discharge events by 95 percent to only four during a typical year of rainfall. The reduced discharges are supposed to result in preventing over 700,000 pounds of pollutants from entering the St. Joseph River each year.

South Bend's combined sewer system collects storm water, sanitary sewage, and other pollutants from the city itself as well as and other parts of St. Joe County. It serves an area covering approximately 14,000 acres of land, with a service population of 107,000 people.

South Bend's sewage collection system consists of 550 miles of pipe.  During wet weather events, and during some dry weather time periods, raw sewage is discharged into the St. Joseph River through some or all of 36 outfalls.

Combined sewer systems are designed to transport sewage, industrial wastewater, and storm water runoff in the same pipes to wastewater treatment plants. During periods of heavy rainfall, the volume of wastewater traveling through a combined sewer system can exceed the capacity of the treatment plant. Resulting overflows, called Combined Sewer Overflows (CSOs), contain not only storm water but also pollutants such as untreated human and industrial waste, toxic materials, and debris. CSOs pose risks to human health, threaten aquatic habitats and life, and impair the use and enjoyment of the nation's waterways.

The Justice Department and EPA alleged that South Bend's CSOs violated the Clean Water Act because they exceeded limitations and conditions in South Bend's National Pollutant Discharge Elimination System permits during the relevant time periods. The settlement requires South Bend to pay a civil penalty of $88,200 for those Clean Water Act violations, which will be divided equally between the United States and the State of Indiana.

South Bend also has agreed to spend a minimum of $75,000 on a supplemental environmental project to reduce pollutants in Bowman Creek, a tributary of the St. Joseph River.  The State of Indiana is a co-plaintiff and a signatory to the proposed consent decree.

The settlement is one of a series of Clean Water Act settlements intended to reduce raw sewage discharges into rivers, streams, and lakes. Keeping raw sewage and contaminated storm water out of the waters of the United States is one of EPA's National Enforcement Initiatives for 2011 to 2013. The initiative focuses on reducing discharges from sewer overflows by obtaining cities' commitments to implement timely affordable solutions to these problems, including the increased use of green infrastructure and other innovative approaches.

The consent decree is available on the Justice Department website at http://www.usdoj.gov/enrd/Consent_Decrees.html

Indiana Farm Bureau, in its October 24, 2011 newsletter, strongly suggests that Indiana farmers take any allegations of violations of environmental regulations with appropriate concern.  Farm Bureau states that USEPA and IDEM are taking a “more aggressive” stance toward enforcement actions against farmers. 

In recent months, the EPA has: 

Prosecuted an Indiana mint grower for allowing hot water to escape into a ditch, allegedly killing a dog. Earlier this month, grower Michael Maternal of Hamlet was sentenced to two years of probation and eight months in home detention, and he was fined $20,000. 

Prosecuted an Ohio hog producer for allowing an unpermitted discharge of when that killed fish in a nearby creek. The producer was sentenced to three months imprisonment, three months of electronic monitoring, a fine of $51,750 and a restitution payment of $17,250 to Ohio EPA. 

Sought greater civil enforcement in Iowa on the feedlots. 

Has threatened increased federal action such as withdrawing permits in the Chesapeake Bay.

“We’d like to caution people to take any allegations of violations of these environmental laws seriously and seek the advice of experts and legal counsel,” Schneider said. 

“While this isn’t necessarily happening in Indiana, there’s definitely seen more EPA action in other states,” said Indiana Farm Bureau staff counsel, Justin Schneider, adding, “Indications are that enforcement is going to continue to be somewhat aggressive.

The Indiana Department of Environmental Management and the United States Environmental Protection Agency have approved Terre Haute’s plan to reduce sewer discharges into the Wabash River.  The long-term control plan addresses the city’s combined storm water and sewage separation program.  Currently sewage overflows directly into the Wabash River during periods of significant rainfall.

The Clean Water Act mandates 107 Hoosier communities must make CSO improvements.   94 cities and towns have completed their plans.

Terre Haute’s LTCP is expected to cost about $120 million over the next 20 years. It is thought to be the largest public works project in the city’s history.

Once fully implemented, Terre Haute’s plan is expected capture and treat 96 percent of the sweage generated by the community.

The Tribune Star article contains more information, including comments by Mayor Duke Bennett and his opponent, Fred Nation.

The 2011 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, edited and published each year by Marcia Oddi, is now available.

It is an excellent desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 570 pages available for $30.00, plus shipping  You can order online here. 

Earlier this month, the Indiana Department of Environmental Management proposed revisions to its antidegradation rules.  Some of the changes include:

1.  Replacing the term “pollutant of concern” with “regulated pollutant”;
2.  Antidegradation standards and implementation apply to regulated pollutants which are defined explicitly to include nutrients;
3.  Mercury is specifically recognized in antidegradation standards;
4.  Retains exemption for deminimis discharges and discharges that result from changes in processes that do not result in a change in loading;
5.  The antidegradation demonstration requirements are different for different categories of discharges; and
6.  The components of the antidegradation demonstration include:

a.  Providing basic information about the discharge;
b.  Showing that the discharge is necessary;
c.  Outlining treatment alternatives when a discharge is necessary; and
d.  Indicating social and economic benefit of discharges not already designated as    beneficial.

The EPA's antidegradation policy requires states to formulate regulations to prevent pollution that would endanger existing uses of state waters.  A link to the proposed Indiana Department of Environmental Management revisions to the IDEM antidegradation rules.

The Federal Clean Water Act (“CWA”) requires that each state’s water quality standards include antidegradation requirements.  The Federal antidegradation requirements are found at 40 CFR § 131.12.

IDEM Commissioner Thomas Easterly has released the “25th Anniversary State of the Environment 2011”.  This document is intended to provide a review of changes that began in 1986, recent accomplishments, and the issues and challenges which IDEM believes lie ahead.

Information about IDEM’s current programs is available in the full 25th Anniversary State of the Environment 2011 report.

You can find the report here.  IDEM State of Environment 2011.pdf.

An assistant commissioner for air quality for the Indiana Department of Environmental Management, Keith Baugess, said the statewide testing might be required if the EPA adopts the strictest new rules being considered for harmful air pollutants, such as ozone.

The EPA announced in December it was delaying the new rules until later this year.

IDEM spokesman Rob Elstro said there is a wide range of possible remedies, depending on how strict the EPA standards are.

Elstro said emissions testing would more likely be considered on a county-by-county basis or in metropolitan areas. He said other possibilities could be tighter emissions for businesses and industries and initiatives to increase carpooling and use of public transportation.

Lake and Porter counties have not met air-quality standards for ozone for years and are the only counties in the state that currently require vehicle emissions checks. Monitors last year showed both counties were below the standard for ozone. 

IDEM has asked the EPA to redesignate the counties as attainment zones. The process is under way, but if the new standards fall lower than the current emissions levels in those counties, both will remain in the nonattainment zone.

Keith Baugues said the entire state could potentially fall to nonattainment for ozone if the EPA chooses the strictest rules. He also said the EPA's decision will have a significant impact on business and the economy.

Environmentalist believe that the standards should be determined by public health as the primary consideration.

A bill carried by Senator Bev Gard is intended to address underground storage tank issues.  The Indiana General Assembly (IGA) has been through UST issues several times in the past few years.  Generally, these issues are hotly contested.

The bill will provide that a portion of the money in the underground petroleum storage tank excess liability trust fund is to be used to pay for the expenses of the Indiana Department of Environmental Management to establish and implement an underground storage tank (UST) operator training program: (1) on an Internet website; and (2) that complies the requirements of the Federal Energy Policy Act of 2005.

With respect to an action against a person who owned or operated an UST at the time a release occurred for recovery of costs paid to the state for corrective action or for contribution for costs directly incurred for corrective action: (1) permits recovery or contribution only to the extent the costs are reasonable; (2) specifies that the action is not limited to claims brought under UST statutes; (3) indicates which types of costs incurred for corrective action are subject to contribution; (4) allows a court to award attorney's fees and court costs and past, present, and future corrective action costs; (5) prohibits an award for contribution toward corrective action costs and attorney's fees and court costs incurred after a responsible party agrees to remediate the release in accordance with the appropriate rules and guidelines; (6) provides that if the person who agrees in writing to remediate the release does not remediate the release in substantial compliance with the rules guidelines, the person who provided the notice may recover reasonable attorney's fees to enforce the agreement; (7) requires a person to notify each reasonably known person allegedly responsible for the UST release before incurring significant corrective action costs and attorney's fees or initiating an action; (8) specifies that notice may be by certified mail, registered mail, United States mail, or personal service; and (9) limits the recovery of corrective action costs and attorney's fees if a responsible party agrees to remediate the release.

Indiana Attorney General Greg Zoeller announced that his office - along with the US Environmental Protection Agency, Department of Justice, and the Indiana Department of Environmental Management - has reached a proposed settlement with 13 potentially responsible parties who will pay for and complete the final phase of cleanup at the Cam-Or Superfund site in Westville.  The EPA press release provides details.

The 13 companies agreed to provide $12 million to complete an engineering design and the cleanup of contaminated groundwater, subsurface chemical breakdown products and heavy metals-contaminated soil at the waste oil recycling facility.

In addition, the companies will pay EPA $2.4 million to cover the cost of overseeing the work and other administrative costs, and also pay for oversight by the Indiana Department of Environmental Management.

Project design work is set to begin in 2011, with cleanup targeted for the 2012 and 2013 construction seasons.

Cam-Or re-refined waste oil from 1934 to 1987. This is the fourth cleanup action at the site since operations closed in 1987. It was named to EPA’s Superfund National Priorities List in 1998. To date, EPA has reached agreements with private parties to pay $28.4 million out of $31.4 million in total site costs.

Addtional site history can be found here.  The Post Tribune's Gitte Laasby's article also has a detailed account.

The 13 responsible parties are: Alcoa Aluminum, Inc.; ANR Pipeline Company; Clean Harbors Environmental Services, Inc.; Consolidated Rail Corporation; CSX Transportation, Inc.; Ford Motor Company; Imperial Oil Ltd.; Ingersoll-Rand Company; Northern Indiana Public Service Company; Rockwell Automation; C. Stoddard & Sons, Inc.; Tennessee Gas Pipeline Company; and United States Steel Corporation.

The consent decree was lodged with U.S. District Court on Dec. 22.  There is a 30-day public comment period.

Photo source: Center for Earth and Environmental Science, Indiana University.

As if we don't have enough of our own: apparently we need manure from Ohio. Go figure.

In a widely reported story by Rick Callahan of the Associated Press, and carried in most of the major news outlets, eastern Indiana residents are upset about poultry manure trucked in from Ohio.

Residents blame manure by-products, particularly ammonia and dust, for breathing problems, odor, and potential water contamination. The effort to cleanup an Ohio lake, Grand Lake St. Marys, has angered some Indiana residents because it is resulted in shipments of manure from Ohio.

Ohio livestock farmers have sold their manure to Indiana crop farmers as a natural fertilizer that's significantly cheaper than commercial fertilizers. Ohio offered livestock farmers a new incentive under a U.S. Department of Agriculture subsidy program.  One of the markets for the out-of-state manure is eastern Indiana.

The program partially covers the cost of shipping manure out of the Grand Lake St. Marys watershed. Officials took the action after manure runoff from fields was largely blamed for causing the shallow, 13,000-acre lake to become tainted with toxic blue-green algae.

At this point, Indiana has no authority to stop or regulate the manure imports, Bruce Palin, the Indiana Department of Environmental Management's assistant commissioner of land quality, said Indiana's regulations only cover manure produced by in-state livestock farms.

IDEM is reportedly considering new rules that would apply the same regulations to out-of-state manure as waste produced on Indiana farms.

This is an insurance coverage dispute involving the interpretation of a pollution policy exclusion.

Flexdar, Inc., manufactured rubber stamps and printing plates at its factory in Indianapolis. Flexdar's machinery employed the chemical solvent trichloroethylene, which leaked from the factory premises and contaminated subsoil and groundwater.

The Indiana Department of Environmental Management ordered Flexdar to investigate the contamination and informed Flexdar that it could be liable for the costs of cleanup. Flexdar requested defense and indemnification from its commercial general liability insurer, State Automobile Mutual Insurance Company.

State Auto filed this action seeking declaration that it owed no coverage. State Auto invoked a policy exclusion barring coverage for claims resulting from the escape of "pollutants." The trial court entered summary judgment in favor of Flexdar. The trial court found that State Auto's pollution exclusion was ambiguous and unenforceable and thus did not preclude coverage.

The Indiana Court of Appeals agreed and affirmed the judgment of the trial court.