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IDEM's application of new antidegradation rule raising ire

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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. •

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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