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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

ADVERTISEMENT