More air pollution, greenhouse gases, mercury, CAFOs . . . and ineffective politicians and bureaucrats

This year was either a great one for Indiana’s environment or an awful one, depending on whom you talk to and how you look at the world.

According to the Indiana Department of Environmental Management, the agency made significant advances in protecting human health and the environment: passing a rule to regulate mercury emissions, assessing one of the largest civil penalties in IDEM history and increasing permit fees.

Critics say that IDEM failed to take steps to address Indiana’s contribution to global climate change, put the financial health and well-being of polluters ahead of the public interest and minimized or ignored public input to the regulatory process.

The Hoosier state made national and international headlines in 2007 for its unusual approach to environmental protection. Here are the most important examples.

Lake Michigan’s big polluter

Perhaps the broadest media coverage occurred in summer, after IDEM granted a National Pollutant Discharge Elimination System permit to BP’s Whiting refinery. BP, the London-based multinational oil and energy conglomerate formerly known as British Petroleum, plans a $3.8 billion upgrade of its 117-year-old refinery on the shores of Lake Michigan in order to process heavier Canadian crude oil from tar sand.

Many people were outraged that the permit allows the plant to discharge 54 percent more ammonia (1,584 pounds) and 35 percent more suspended solids (4,925 pounds) daily into Lake Michigan. The permit also allows BP to continue adding 2 pounds of mercury to Lake Michigan until 2012.

Carolyn Marsh of Whiting, Ind., the convener of the Lake Michigan Calumet Advisory Council, which has been monitoring the many facets of the BP project, said the federal Clean Water Act makes it clear that no additional pollution should be added to the nation’s waterways. “It is a colossal environmental catastrophe in the making,” she said of IDEM’s permit to BP. “They’re creating a dead zone up here.”

The story was in heavy rotation in all major news outlets and even prompted the U.S. House of Representatives to pass a bipartisan resolution, 387-26, condemning the widely criticized permit.

A Dec. 3 report [see sidebar on pg. 17] to Gov. Mitch Daniels from Jim Barnes, an Environmental Protection Agency deputy administrator during the Reagan Administration, said BP’s permit conforms with all federal and state laws designed to protect water quality. However, Barnes noted shortcomings in IDEM’s implementation of its antidegradation policy for Great Lakes waters and recommended that the agency revise its public process to be more transparent and to provide better explanation for the rationale behind decisions.

Green ranking: 49th out of 50

Another public relations disaster came in October when Forbes magazine published its list of America’s Greenest States [see sidebar on pg. 17].

Indiana ranked 49th.

Each state’s ranking was determined by six equally weighted categories: carbon footprint, air quality, water quality, hazardous waste management, policy initiatives and energy consumption. The story concludes, “So who’s at the bottom? Mississippi, Louisiana, Alabama, Indiana and, at No. 50, West Virginia. All suffer from a mix of toxic waste, lots of pollution and consumption and no clear plans to do anything about it. Expect them to remain that way.”

What does it say about Daniels’ plans to double hog production, sell off natural resources and promote more coal-fired power plants when even Forbes — the self-proclaimed “Capitalist Tool” — has written off Indiana?

Development trumps enforcement

John Blair, president of the environmental protection group Valley Watch, based in Evansville, has been battling pollution in Southwest Indiana for three decades. “Governor Daniels and [IDEM Commissioner] Thomas Easterly are doggedly pursuing an agenda of neither environmental protection nor environmental management,” he said. “Time and again Easterly says that IDEM is an economic development tool for the state.”

And although Easterly has said that he wants timely resolution of enforcement actions, an investigation by Dan Stockman [see sidebar on pg. 17] published in July in the Fort Wayne Journal Gazette found that IDEM’s Voluntary Remediation Program is “marked by delays, years-long cleanups and neighbors kept in the dark about the polluted soil and water nearby.”

Deadlines are ignored or extended, according to Stockman. “There are no consequences and no enforcement even when deadlines are blown by months or even years.”

Low fees and fines

The Northwest Indiana Times reported this spring [see sidebar on pg. 17] that BP was fined a total of $8,750 after a spill of 1,000 gallons of untreated wastewater at the Whiting plant in November 2006. IDEM could have levied fines up to $75,000 a day.

A report [see sidebar on pg. 17] issued in March by the Environmental Integrity Project, a nonpartisan, nonprofit organization founded by former EPA enforcement attorneys, suggests IDEM also is letting polluters off the hook by collecting fees 30 percent below the minimum level set by the federal Clean Air Act.

King coal

IDEM was founded on the notion that a healthy economy is compatible with a healthy environment. But environmentalists and public health advocates take issue with claims that coal-fired power plants fit the concept.

This year, Illinois, North Carolina, Oregon, Washington, Florida, Colorado, Texas and Kansas rejected coal-fired power plants for environmental reasons as well as for financial ones.

Nevertheless, last month Duke Energy’s proposed $2 billion coal gasification plant in Edwardsport (Knox County) received approval from the Indiana Utility Regulatory Commission. Valley Watch’s John Blair is angry about the lack of opportunity for public input. “This is the first coal plant built in Indiana in 20 years,” he noted. The commission scheduled its public hearing Dec. 20 and the comment period ends Dec. 30, all during the holiday season. “Don’t think that’s not purposeful!” Blair said.

What greenhouse gases?

Mounting scientific evidence of human causes of global warming has prompted many states to establish a framework for measuring, tracking, verifying and reporting on greenhouse gas emissions that includes establishing benchmarks for future regulatory policies.

But not Indiana.

Indiana declined in May to join 31 states that formed a voluntary Climate Registry to track greenhouse gas emissions, including CO2, by major industries. Even though Indiana had been a founding state for the initiative and had devoted substantial staff resources to the project, IDEM’s Easterly told the Indiana Energy Association in September that signing on to the Climate Registry might improperly imply that Hoosier businesses need to participate in it [see sidebar on pg. 17].

Because of the heavy concentration of greenhouse gas-emitting plants in the region, on Nov. 17 nine Midwest governors signed the Midwestern Greenhouse Gas Reduction Accord, which seeks to establish targets for reductions — especially CO2 from coal-fired power plants. Gov. Daniels was not one of the nine, signing on only as an “observer.”

Dirty air

In July the Environmental Integrity Project released its report “Dirty Kilowatts” [see sidebar on pg. 17], which found Indiana’s coal-fired power plants to be among the dirtiest in the country, not only contributing to global warming but also threatening the health of Hoosiers and citizens in other states.

And the American Lung Association’s “State of the Air 2007” report [see sidebar on pg. 17] placed Indianapolis in the top 10 metro areas most affected by year-round particle pollution.

Mercury

Indiana ranks fourth nationwide in emissions of mercury, a potent neurotoxin especially harmful to children and pregnant women. At its Oct. 3 meeting, the Indiana Air Pollution Control Board rejected a proposal by the Hoosier Environmental Council that called for a 90 percent reduction of mercury emissions by 2010. The board voted 11-1 to adopt the minimum federal Clean Air Mercury Rule [See sidebar on pg. 17]. Under its terms Indiana-based coal-fired power plants could cut mercury emissions by up to 66 percent by 2018.

Recycling funds: up in smoke

Indiana has a problem with scrap automobile tires — some 6 million of them. The state finances the Waste Tire Fund in part with a fee of 25 cents for each new tire sold, one of the lowest such fees in the nation.

Late last year, IDEM proposed adding waste-to-energy projects — specifically burning automobile tires for tire-derived fuel — to the list of priorities the Indiana Recycling Market Development Board uses when considering applications for grants or low-interest loans to solid waste management districts for recycling programs.

The initiative alarmed Indiana Recycling Coalition members, who feared that the definition of recycling might be modified to include incineration, which would turn the definition of recycling on its head. In the EPA’s solid waste hierarchy, source reduction has uppermost priority, followed by reuse and recycling. The bottom tier is considered final disposal and includes incineration, waste-to-energy and landfills.

In early 2007, legislators asked Indiana’s Environmental Quality Service Council to study the tire proposal and make recommendations. At its Oct. 30 meeting, the council recommended urging the General Assembly to permit IDEM to use monies to promote tire-derived fuel. Because that recommendation was listed under the heading “Recycling,” it led to renewed concerns that IDEM was set to equate incineration (final disposal) with recycling (resource recovery and reuse). Incineration could add significantly more air pollution to the state’s already dirty air because burning tires releases dioxins and furans as well as carbon monoxide and fine particles. Also, the ash would create a disposal problem.

Food security and public health

The General Assembly failed in 2007 to strengthen regulation of Confined Animal Feeding Operations. Maybe they will reconsider, based on events this year.

In January, the EPA ordered De Jong Dairy LLC, in Fremont, to comply with its NPDES permit and stop all unauthorized waste discharges and meet all the requirements of the dairy’s state-issued discharge permit. At the time of its reprimand, the factory farm had applied to IDEM for a permit to double its 900-head dairy cow operation. CAFO opponents wonder why enforcement action had to come from the EPA instead of IDEM.

After reports in February of sudden illnesses in and deaths of dogs and cats, some recalled pet foods were found to contain wheat or rice gluten contaminated by melamine imported from China. In April the Food and Drug Administration and the U.S. Department of Agriculture initiated widespread testing of all vegetable proteins, including those used in human foods. The agencies released estimates that 38 poultry farms in Indiana had used melamine-contaminated chicken feed from China. Despite government assurances that there was a low risk of a similar health threat to humans, the discovery raised questions about food security because the feed had been used in February and by April many of the chickens had already entered the food supply.

These reports anger many citizens around the state who live near such facilities and see their property values decline as a result. They worry about the impact of CAFO-related trucks on rural roads and bridges. And they have to deal with the odor and potential health threats when CAFOs apply manure to fields.

The I-69 saga

Land acquisition is under way for the controversial new-terrain route from Indianapolis to Evansville via Martinsville, Bloomington and Washington — even as a lawsuit challenging the project winds its way through the legal system.

Tom Tokarski, of Citizens for Appropriate Rural Roads, says unprecedented numbers of citizens have opposed the new terrain route and support the less environmentally damaging I-70/U.S. 41 “common-sense alternative.”

“This project is driven not by economic or transportation needs but by selfish political motives and greed,” Tokarski said recently. CARR has been battling the project for 17 years. The group’s research has found that the proposed extension would destroy nearly 400 homes, force between 80 and 100 existing businesses to relocate, take more than 5,000 acres of some of the best farmland in the state and require cutting more than 1,500 acres of forest. “It would slice through the Patoka National Wildlife Refuge and bulldoze through sensitive karst terrain, disrupting cave systems and underground water tables with unpredictable but potentially devastating results,” he said.

“It is irresponsible in the highest degree to propose a project like I-69 that would result in more carbon emissions and major loss of valuable farmland and forests, and cause more negative impacts on animal species currently at risk due to global warming and loss of critical habitat.”

Indiana historically has had a reluctance to issue environmental regulations that exceed federal standards. So state regulators are accurate when they say they uphold the law by following U.S. Environmental Protection Agency regulations.

And polluting industries — the regulated community — have tremendous clout when it comes to influencing policymakers, sometimes going so far as to write the regulations that become law.

For example, when the Indiana Air Pollution Control Board voted to adopt the minimum federal Clean Air Mercury Rule it ignored the outpouring of public comments in support of the Hoosier Environmental Council’s proposed 90 percent reduction plan [see sidebar on pg. 17].

Public health officials, other environmental organizations and hundreds of individual citizens commented in favor of greater protection of public health. The following IDEM response typifies the agency’s approach: “Due to uncertainties over the achievability of 90 percent control, reductions in actual mercury exposure levels, cardiovascular health effects and the low benefit/cost ratio, IDEM is proceeding with a rulemaking based on CAMR.”

In an e-mail response to a question about the vote for CAMR, IDEM Commissioner Thomas Easterly wrote, “This is a major reduction in mercury emissions and a number which represents significant study and deliberation on the part of the U.S. EPA to determine what reduction is both protective and achievable. We are on a path that will significantly reduce the emissions of mercury from power plants in Indiana.”

The board’s lone holdout, Philip S. Stevens, disagrees. “It’s not that I’m against controlling mercury emissions,” Stevens said by phone from his Bloomington office, where he serves on the faculty of Indiana University’s School of Public and Environmental Affairs. “I didn’t want the public record to show unanimous support of EPA’s rule because I felt it was not strong enough to protect human health.

“Given the known toxicity of mercury and the known health effects — especially on children and pregnant women — and increasing scientific evidence that mercury gets into the environment and spreads in ecosystems quickly, I felt the stronger rule was appropriate,” he said.

Easterly countered that a number of emission control projects already under construction or recently in operation in Indiana will result in reduced mercury emissions. “These include flue gas desulphurization units [scrubbers] in conjunction with selective catalytic reduction units at Indiana-Kentucky Electric Corporation’s Madison, Ind., facility, Alcoa’s Warrick operations and on the largest unit at Indianapolis Power & Light’s Harding Street facility here in Indianapolis,” [see sidebar on pg. 17].

Cap and trade

One controversial provision of the rule is called “cap and trade.” Plants that operate below a predetermined emissions limit (the “cap”) will be allowed to bank and/or sell emission credits (the “trade”) to plants that exceed their cap. This means actual compliance with reduction targets could be stretched to 2025 or beyond.

Concerns over the cap-and-trade plan center around its enabling of utilities to continue operating outdated, dirtier facilities. Environmentalists, public health officials and social justice advocates fear that such a program will create “hot spots” — high concentrations of mercury around older plants — and delay much needed cleanup, remediation and/or decommissioning.

Cap and trade wasn’t a factor when the federal Clean Air Act was established in 1970. Using their political clout, utilities were able to get power plants “grandfathered” in and exempted from new regulations. The thinking at the time was that cleaner plants would gradually replace the aging plants.

But it didn’t happen. The old plants kept belching pollutants and utilities resisted costly upgrades. Passage of amendments in 1990 to the Clean Air Act called for the utility industry to install “Maximum Achievable Control Technology” in the nation’s non-nuclear power plants by 2008. When EPA dawdled in enforcing compliance, the Natural Resources Defense Council sued in 1992 to force the agency to regulate hazardous power plant emissions. By 2000, EPA acknowledged that mercury’s toxic properties required it to be regulated as a hazardous substance.

When the Bush Administration took office, EPA chief Christine Todd Whitman established a task force of diverse stakeholders who met for 21 months and agreed that power plants should be subject to the MACT standard. As reported in the Washington Post [see sidebar on pg. 17], the task force suddenly was dissolved and a different policy was implemented: one that rejected MACT and replaced it with a more industry-friendly cap-and-trade plan.

The administration crafted its mercury rule in January 2004 and the Washington Post reported [see sidebar on pg. 17] that it was taken nearly verbatim from drafts submitted by energy industry lobbyists. When EPA issued the new rule in May 2005, the cap-and-trade provision was enshrined as public policy.

Opposition was and remains widespread. Sixteen state agencies joined environmental groups to file suit in 2006 [See sidebar on pg. 17] against the cap-and-trade provision of the rule and to argue in favor of the MACT standard. If they prevail in court, mercury regulations will be revised.

Waste tires

In response to a question about the Environmental Quality Service Council initiative to use solid waste management funds earmarked for recycling projects for waste-to-energy projects like tire-derived-fuel, Easterly replied, “EQSC has indicated we should spend efforts and resources on beneficial reuse of tires; this does not change the definition of recycling.”

Michelle Cohen, executive director of the Indiana Recycling Coalition, agrees that waste tires are a problem but has concerns about EQSC’s recommendations. “The state already has a waste tire management fund set aside to help deal with them, including using waste tires as a source of fuel,” she wrote via e-mail. “They’re proposing opening up another fund to pay for the burning of waste tires, which seems to be at the expense of recycling.”

Cohen said the organization opposes any proposal that would allow waste-to-energy processes to become eligible for state dollars from the same coffers that fund recycling and waste reduction methods. “This runs counter to the widely accepted hierarchy ranking the economic and environmental benefits of waste reduction, reuse and recycling above those of waste-to-energy and other disposal methods,” she said. She added that Indiana mandates proper disposal, while recycling is voluntary. ”Financial incentives for recycling, like those offered under the solid waste management fund, help to even out the odds and put it on a level playing field with disposal options like waste-to-energy,” she said.

Regarding air emissions and ash from waste-to-energy projects, Easterly wrote, ”Projects proposing to burn waste tires would have to control emissions, the same as other industrial processes. IDEM has openly supported improving markets for waste tires to prevent many of the environmental hazards caused by accumulating tire piles and the resulting risks of mosquitoes and fires. Any project funded under such a proposal would still need the proper permits, which will only be issued if the air emissions, wastewater discharges and ash management practices protect the environment.”

Cohen and IRC colleagues point out that the whole point of recycling is to avoid air emissions, wastewater discharges and ash, which is why EPA considers such practices final disposal, not recycling.

Coal

Although 95 percent of Hoosier electricity is derived from coal, environmentalist John Blair says there’s nothing clean about it. “Coal is dirty at every part of its fuel cycle. From the time you knock down the first tree to build a mine to the time you dispose of coal combustion waste in a mine, it’s a dirty, nasty process.

“It’s amazing to me that the production of electricity in Indiana is over four times the production of electricity per capita in California,” he noted. “On any given day we export 25 to 40 percent of the electricity we produce in Indiana.”

Although the state’s utility regulatory commission required Duke Energy to submit a plan within six months that outlines how CO2 emissions will be captured at its proposed new plant in Edwardsport, Blair said the carbon capture and sequestration technology is unproven. “Besides,” he added, “there’s this belief in Indiana that coal is going to get us out of global warming.” Blair said Indiana’s inconvenient truth is that the state “is the biggest producer of carbon dioxide from coal in the nation.”

He observed that Gov. Daniels’ selection of Easterly to head IDEM was widely seen as a nod to the regulated community because Easterly had served as manager of Environmental Planning & Improvement for NiSource (a northern Indiana utility holding company) and as superintendent of environmental services for Bethlehem Steel’s Burns Harbor plant.

Blair met with Easterly and Assistant Commissioner Scott Nally early in 2005. “I asked Scott what he saw in his crystal ball for the future and he said, ‘CAFOs and power plants.’” Calling the response “morbidly honest,” in hindsight Blair also sees it as prophetic. “They’ve proven that ever since. Decisions seem to be made that clearly ignore the will of the public and the spirit of environmental protection.”

CAFOs

Although they are dismissed as anti-farmer and anti-agriculture by agribusiness, a growing statewide network (www.indianacafowatch.com) of opponents of Concentrated Animal Feeding Operations is still demanding stronger regulations for factory farms.

Barbara Sha Cox, a third-generation farmer on land her family owns in Randolph County, is active in the grass-roots push to regulate CAFOs. “We need a moratorium until all the rules and regulations are in place,” she said.

According to IDEM Commissioner Easterly, “The agency doesn’t have the authority to declare a moratorium on CAFO permits. The Legislature considered it last session, and ultimately chose not to pursue a moratorium.”

A former nurse, Cox said the engaged citizens who oppose CAFOs are committed to protecting rural quality of life and economic well-being for small farmers — but mostly they want to protect public health.

She pointed to a report published in February by Environmental Health Perspectives, “The Potential Role of Concentrated Animal Feeding Operations in Infectious Disease Epidemics and Antibiotic Resistance” [see sidebar on this page], which found that widespread use of non-therapeutic antibiotics had reduced the effectiveness of several classes of antibiotics in both humans and animals.

She also mentioned another recent study of Canadian farms published in Veterinary Microbiology, which found that nearly one in four pigs and one in five farmers carried antibiotic-resistant Staphylococcus aureus.

Manure handling is a major concern for the group, she said. She wondered aloud about rumors that the State Chemist was working on a program for manure haulers.

According to Easterly, “Under current rules, if you hire a commercial applicator, there are no rules governing how they apply manure or any nutrient. The State Chemist’s office has authority to establish rules, and this is what they’re in the process of doing to close a regulatory loophole.”

None of this sits well with Cox. “The confusion over the manure, property rights, health issues and quality of life should have been addressed before the flood gates were opened to the agenda to double pork production.”

Quotes:

“It is a colossal environmental catastrophe in the making. They’re creating a dead zone up here.” Carolyn Marsh of Whiting, Ind., convener of the Lake Michigan Calumet Advisory Council, regarding IDEM’s permit to BP’s Whiting refinery

“This project is driven not by economic or transportation needs but by selfish political motives and greed.” Tom Tokarski, Citizens for Appropriate Rural Roads, referring to the new plan for I-69

“Gov. Daniels and [IDEM Commissioner] Thomas Easterly are doggedly pursuing an agenda of neither environmental protection nor environmental management.” John Blair, president of the environmental protection group Valley Watch, based in Evansville

Dig Deeper

See nuvo.net for live links to the below stories, reports, etc.:

• For the Forbes story about Indiana ranking 49th in the country: www.forbes.com/2007/10/16/environment-energy-vermont-biz-beltway-cx_bw_mm_1017greenstates.html

• Dan Stockman’s story in the Fort Wayne Journal Gazette about the problems with IDEM’s Voluntary Remediation Program: www.indiana.sierraclub.org/idem/w0005.html

• The Northwest Indiana Times reported this spring that BP was fined a total of $8,750 after a spill of 1,000 gallons of untreated wastewater at the Whiting plant in November 2006. IDEM could have levied fines up to $75,000 a day: nwi.com/articles/2007/07/21/news/top_news/doc7f0f48fbe9e8a5588625731e0081b739.txt

• This report suggests IDEM is letting polluters off the hook by collecting fees 30 percent below the minimum level set by the federal Clean Air Act: www.environmentalintegrity.org/pub427.cfm

• IDEM’s Easterly told the Indiana Energy Association in September that signing on to the Climate Registry might improperly imply that Hoosier businesses need to participate in it: www.in.gov/idem/commissioner/speeches/2007/iea_09-20-07.ppt#381,20,Climate Registry

• A Dec. 3 report to Gov. Daniels from Jim Barnes, an EPA deputy administrator during the Reagan Administration, said BP’s permit conforms with all federal and state laws designed to protect water quality: http://www.in.gov/gov/files/Press/BP_Letter_Report.pdf

• In July the Environmental Integrity Project released its report “Dirty Kilowatts” which found Indiana’s coal-fired power plants to be among the dirtiest in the country: www.environmentalintegrity.org/pub457.cfm

• The American Lung Association’s “State of the Air 2007” placed Indianapolis in the top 10 metro areas most affected by year-round particle pollution: lungaction.org/reports/stateoftheair2007.html

• At its Oct. 3 meeting, the Indiana Air Pollution Control Board rejected a proposal by the Hoosier Environmental Council that called for a 90 percent reduction of mercury emissions by 2010: www.epa.gov/air/mercuryrule/factsheetfin.htm

• When the Indiana Air Pollution Control Board voted to adopt the minimum federal Clean Air Mercury Rule: www.epa.gov/air/mercuryrule/factsheetfin.htm

• Indiana Air Pollution Control Board ignored the outpouring of public comments in support of the Hoosier Environmental Council’s proposed 90 percent reduction plan: www.ai.org/legislative/iac/20070117-IR-326050116SNA.xml.html

• Easterly’s presentation on his recommendation to the Air Pollution Control Board can be viewed: www.in.gov/idem/commissioner/speeches/2006/apcb_hg_10-19-06.ppt

• Christine Todd Whitman established a task force of diverse stakeholders who met for 21 months and agreed that power plants should be subject to the MACT standard. As reported in the Washington Post the task force suddenly was dissolved and a different policy was implemented: one that rejected MACT and replaced it with a more industry-friendly cap-and-trade plan: www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A39770-2003Dec29&notFound=true

• The administration crafted its mercury rule in January 2004 and the Washington Post reported that it was taken nearly verbatim from drafts submitted by energy industry lobbyists: www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A64630-2004Jan30

• Sixteen state agencies joined environmental groups to file suit in 2006 against the cap-and-trade provision of the rule and to argue in favor of the MACT standard: www.oag.state.ny.us/press/2006/jun/jun19a_06.html. If they prevail in court, mercury regulations will be revised.

• Opponents of Concentrated Animal Feeding Operations: www.indianacafowatch.com

• “The Potential Role of Concentrated Animal Feeding Operations in Infectious Disease Epidemics and Antibiotic Resistance”: www.ehponline.org/docs/2006/8837/abstract.html