ILNews

IDEM's application of new antidegradation rule raising ire

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

After more than 10 years of protracted and, at times, contentious debate, Indiana finalized protections for some of its most clean waters. But less than a year after taking effect, a short letter denying an antidegradation application has unleashed criticism that the state is not implementing the rule as intended.

The dispute between the Allen County community of Huntertown and the Indiana Department of Environmental Management arises from what is believed to be the first time the state has applied the new water antidegradation rule.

devoe DeVoe

Indiana’s statewide water antidegradation rule took effect in June 2012 and received approval from the U.S. Environmental Protection Agency the following September. Every state is obligated by the federal Clean Water Act to formulate and institute such a rule.

The Hoosier state compiled a history of starts and stops before finally emerging with written definitions, conditions and instructions for protecting pristine water resources from being degraded, namely by a new discharge. The antidegradation rule governs discharges into streams, rivers and other bodies of water whose quality and purity is higher than what the state deems as clean water.

Martha Clark Mettler, IDEM deputy assistant commissioner for the Office of Water Quality, explained the goal of the rule is to preserve as much of the pristine quality as possible while realizing that people have to live on the planet as well.

Different groups came together during the rulemaking to help develop the language and conditions while also protecting their interests.

Jeffrey Hyman, staff attorney with the Conservation Law Center and faculty member at the Indiana University Maurer School of Law, was a member of the environmental coalition that participated in the rulemaking. Fredric Andes, partner at Barnes & Thornburg LLP’s Chicago office, represented the interests of industry and municipalities.

Although the discussions sometimes became heated, Hyman described the overall process as good, with IDEM making a tremendous effort to ensure that the many interests and perspectives were heard.

Still, many of the participants had reservations about the rule when it was finished.

“Nobody got everything they wanted out of this process,” Andes said. “At this point, the rule is done and it’s being implemented. The focus has shifted to, ‘Let’s see how this works.’”

Social and economic factors

That focus is now on Huntertown.

Currently, the municipality pipes its sewage 13 miles to the wastewater treatment plant in neighboring Fort Wayne. However when Fort Wayne decided to charge the small community retail rates instead of wholesale rates, Huntertown thought the best way to resolve the dispute was to build its own treatment plant.

That decision is not without controversy. Environmental groups and residents have questioned the wisdom of Huntertown building and operating such a facility. Even so, town officials moved forward with the process and notified IDEM for the first time in 2008 of its intention to disconnect from Fort Wayne and build its own treatment plant.

Two years later as the process got under way, IDEM indicated Huntertown would be required to submit an antidegradation demonstration.

Numerous comments and responses later, IDEM issued a tentative decision to deny the antidegradation application in August 2012. The final denial came in October and left attorneys representing Huntertown claiming the agency is pulling a reason from thin air.

Plews Shadley Racher & Braun LLP attorneys S. Curtis DeVoe and Amy Romig filed a petition for administrative review with the Indiana Office of Environmental Adjudication on behalf of Huntertown. DeVoe is confident Huntertown will prevail on its petition, but if the environmental adjudicator agrees with IDEM, DeVoe said his client will appeal to the state courts.

IDEM’s denial letter is just two pages and devotes the most space to describing the appeals process. Most bewildering to DeVoe is the explanation the agency gives for turning down the demonstration.

The letter states that the commissioner’s decision to deny Huntertown’s antidegradation demonstration “is primarily based upon a finding that cost effective measures are reasonably available that would prevent or minimize the proposed significant lowering of water quality in Geller Ditch.”

Based on that written communication, DeVoe charges IDEM is not implementing the antidegradation rule correctly.

The language in the final rule states the IDEM commissioner shall deny an application for degradation on the grounds “it is not necessary because cost-effective measures that would prevent or minimize the proposed lowering of water quality are reasonably available ... .”

DeVoe argues because “cost-effective” and “reasonably available” are not clearly defined, IDEM must consider social and economic factors that the rule requires antidegradation demonstrations to analyze. The ambiguous terms are, in fact, defined by those additional considerations.

andes Andes

“They have denied this without addressing any factors in our very detailed antidegradation demonstration,” DeVoe said, calling IDEM’s decision “arbitrary, capricious and illegal.”

Moreover, by using the “necessary” provision as a kind of gatekeeper, requiring that antidegradation demonstrations first pass that test before looking at the other factors, the state agency is ignoring the complexity of the rule, he said.

IDEM’s Clark Mettler would not characterize the “necessary” clause as the gatekeeper provision. However, she did maintain that determining if a discharge is necessary is a significant question that has to be answered first.

Then, if the discharge meets the necessity test, the state agency will move on to decide if the degradation is justified by the social and economic benefit.

Discretion

Disagreement over how the rule is being implemented highlights the discretion contained in the document. IDEM does retain a great deal of ability to choose and decide. Both Hyman and Andes shared concerns about the amount of leeway the rule gives the state agency.

Yet the groups conceded the need for balance between flexibility and certainty. The discretion is the key to how the rule will be applied, and although some members of the rulemaking group would have liked to have included more specific language, that was not the outcome.

Clark Mettler reiterated the point of striking a balance, noting the agency has to have some freedom to avoid being boxed into a corner.

“If you’re too prescriptive, you always run the risk of not thinking of something,” she said. “Since this was a long rulemaking, you want to be careful.”

Some insight into how the rule was crafted comes from the de minimus provision. The rulemaking body spent a great deal of time on what constituted a de minimus, or discharge that has such a small impact it does not significantly degrade the quality of the water.

Environmental groups and industrial groups disagreed over what level of impact is insignificant.

Andes explained that the industry representatives agreed that a significant discharge of effluent should undergo an antidegradation review but were concerned the time spent on little projects will limit the time spent on bigger projects. It is an issue, he said, of focus and priority.

The rule defines de minimis, Clark Mettler said, and spells out how to calculate the standard.

And it will put all discharges through an antidegradation review. The rule provides that every increase or new discharge will have some level of review.

“It’s a stringent rule that business and communities in Indiana are definitely going to have to take careful note of and make sure any new project meets the requirements,” Andes said. •

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

ADVERTISEMENT