Environmental groups to sue EPA, state
Activists claim Indiana does not enforce the Clean Water Act
BY LAURI HARVEY Times Staff Writer
Five Indiana environmental groups have filed a notice of intent to sue the state of Indiana and the U.S. Environmental Protection Agency for allegedly failing to enforce state water quality standards. Enforcement of the standards are required under the federal Clean Water Act.
The notice of intent to sue was signed by the Save the Dunes Conservation Fund of Michigan City, the Indiana Division of the Izaak Walton League of America in Portage, Citizens Action Coalition of Indiana in Indianapolis, Cedar Creek Wildlife Project of Huntertown and the Hoosier Environmental Council in Indianapolis.
The filing centers on a bill signed into law by Gov. Frank O'Bannon in March. The act revised -- and the environmental groups allege, made less stringent -- Indiana's water quality standards without the EPA approval required by the Clean Water Act.
The environmental groups allege the new law suspends or degrades the designated uses for Indiana's waters, which include fishing, drinking and swimming.
The law allows municipal waste water treatment facilities and other facilities to increase their discharges into Indiana's rivers, streams and lakes, including discharges of combined sewer overflows that lead to high E. coli bacteria counts and beach closures. Representatives from the U.S. EPA Region 5 in Chicago declined comment on the filing, saying they had yet to receive a copy for review. Indiana Department of Environmental Management spokesmen could not be reached for comment late Thursday.
"Lake Michigan beaches were closed 228 times in 1999 due to E. coli bacteria in water," said Tom Anderson, executive director of the Save the Dunes Conservation Fund. "We are very concerned that (the law) will further reduce the quality of Lake Michigan's waters. ... There is federal guidance for these issues. The state legislature can't pass a law anytime it wants to that violates those protections."
Anderson said the law allows businesses and municipalities to exceed regulations if they show a net reduction in pollution or pay a fee. "To us, that says you are paying to pollute," Anderson said.
Charles Siar of the Indiana Division of the Izaak Walton League of America in Portage said he hopes the suit can maintain the Clean Water Act's higher standards in Indiana. "The fear was that we were going to back slide in terms of the enforcement and standards for water quality issues, and I fear we've done so," Siar said. "Indiana does not have the best waters. This rule really says we're going to put off dealing with all of these water quality problems, and I was just aghast by the whole thing when it went through."
The environmental groups plan to file their complaint in federal court after the 60-day notice period for the filing unless the state agrees to changes in the law.
Lauri Harvey can be reached at firstname.lastname@example.org or (219) 933-4169.
Groups plan to sue
By Tim Zorn / Staff Writer
Five Indiana environmental organizations filed a notice last week that they intend to sue the U.S. Environmental Protection Agency.
What's going on? Aren't the EPA and the environmentalists on the same side?
The organizations want the EPA to join them in a struggle against a new Indiana law that, environmentalists say, will weaken the federal Clean Water Act.
They hope their lawsuit - or the threat of it - will prompt the EPA to tell Indiana that Senate Enrolled Act 431, signed by Gov. Frank O'Bannon in March, would revise Indiana water quality standards without prior EPA approval and would violate the Clean Water Act.
"We're saying, 'You have to enforce the existing water quality standards,' " said Tom Anderson, director of the Save the Dunes Conservation Fund.
Save the Dunes, based in Michigan City, has joined the Cedar Creek Wildlife Project, Citizens Action Coalition, the Hoosier Environmental Council and the Indiana division of the Izaak Walton League of America in saying they will file a federal lawsuit within 60 days, unless the EPA acts sooner.
The environmentalists have been battling the new Indiana law since early this year, when two bills came to the Indiana General Assembly. Eventually, both were combined into one bill and passed.
One part of the law allows the state to temporarily suspend water quality standards when cities with combined storm and sanitary sewer systems - such as Valparaiso and more than 100 other communities - have to send untreated water into local streams after heavy rains.
No big deal, according to Lori Kaplan, commissioner of the Indiana Department of Environmental Management. In a speech in June, she said the new combined sewer overflow provision "simply puts into law what IDEM has been practicing since 1996."
Another part of the law that environmentalists find objectionable affects four water bodies that the state has designated as Outstanding State Resource Waters because of their unique value. One is Lake Michigan.
Previous law said no new pollution sources could be added to those "outstanding" waters.
The new law sets up a procedure that would allow a new discharge if the overall water quality in the watershed would be improved. It also says an applicant could pay an additional fee, up to $500,000, for water quality improvements.
"That, to us, is a pay-to-pollute provision," Anderson said.
After the Legislature passed the law, Izaak Walton League president Charles Siar, of Portage, asked O'Bannon to veto it.
"We say it's downgrading our water quality standards," Siar said.
The threat to sue the EPA is part of a legal strategy used by environmental groups around the country. A provision in the Clean Water Act, originally passed by Congress in 1972, allows citizens groups to go to court when they believe environmental enforcers are dragging their feet.
IDEM spokesman Phil Schermerhorn said the agency could not comment yet on the threatened lawsuit.
The Save the Dunes Council has filed two Clean Water Act intent-to-sue notices in recent years. One was against IDEM, to get more public notice before the agency considers a water-quality certification.
The other was against USX Corp., to add the Marquette Park lagoons in Gary to the steel company's plan to clean up the Grand Calumet River.
A settlement in the IDEM case and negotiations toward a USX agreement have kept Save the Dunes from a court fight.
"We're somewhat hopeful this might be the outcome this time," Anderson said.
But if the case goes to court, he said, the environmental organizations have set aside money for a fight.
They also have hired Michael Mullett, an Indianapolis attorney who has represented the Hoosier Environmental Council and Citizens Action Coalition against state regulators and utilities for more than a decade.