IKE Newsletter

November 2003 Edition

Version in Word

Indiana General Assembly Provides $2 million in Funding to IDEM for Drinking Water Programs

In its budget for the biennium, the Indiana General Assembly established fees for public water systems to support IDEM’s drinking water program.  The fees are expected to generate $2 million annually.  The fees are phased in over three years with the first round due on July 1, 2004.  The cost to a typical Hoosier household will be about $0.08 per month.  A bargain considering the potential health risks! 

IDEM has already begun ramping up by obtaining $1 million administrative funds from the drinking water state revolving loan program and preparing a package to create the necessary positions. The process takes time so it is great to see IDEM moving quickly to meet the renewed expectations. 

Even with the increase, Indiana will still have a relatively small program when compared to adjacent states.  Thanks to Senators Gard and Meeks and Representatives Avery and Crawford for making this critical funding a reality.  Click here for an FAQ from IDEM on the fees.

Pesticide v. Herbicide – Six Sick Students

Lay May, six gym students in the Northwest Hendricks School Corporation went to the hospital following complaints of nausea and dizziness after using a football field where grass was still wet from a herbicide application. The students were resting after running on a track that surrounded the treated field. The students returned to school the following day.  A school maintenance employee applied the herbicide.

The herbicide’s label prohibited the applicator from allowing entry into treated area until the spray had dried.  The Indiana State Chemist assessed a $250 penalty but agreed to drop the penalty if the school agrees to have future applications made by licensed staff.

The Northwest Hendricks School Corporation is one of many that adopted Indiana’s model school pesticide policy.  However, the corporation’s maintenance director told the state inspector that he was unaware that the school board’s policy applied to herbicides.  Unfortunately, he did not understand that the policy covered herbicides.  “Pesticide” is the umbrella term that includes herbicides, insecticides, fungicides, etc. 

Unfortunate incidents like this one can serve as tremendous reminders.  Please talk with your school maintenance staff to make sure they understand and are following the model policy.  88% of school corporations have already adopted it. 

Pesticides and Child Care – Purdue Launches Education Effort

For four years, IDEM has had a 5-Star Environmental Recognition Program for Child Care Facilities.  The program has demonstrated that facilities can successfully protect children from environmental hazards while reducing costs.  In the Spring of 2003, the Indiana Pesticide Review Board adopted a model policy for pesticide management at child care facilities.  And finally, the Family and Social Services Administration recently revised its rules for child care facilities to set minimum standards for health including pesticide use. 

With these pieces in place, EPA provided Purdue University with a grant to get the educate child care providers across Indiana about integrated pest management and the state’s policies.  The goal is to get the kind of universal adoption of integrated pest management and public notification practices through state agencies, associations and organizations with strong ties to the child care community.  Purdue’s Al Fournier is coordinating the project.  Contact him at Al_Fournier@entm.purdue.edu or check out www.entm.purdue.edu/schoolipm/ for more information.

The Promise of the IN Joint Asthma Coalition  

The Indiana Department of Environmental Management and Indiana State Department of Health have launched a joint effort designed to bridge a critical gap in public health protection for children and adults.  In May 2003, IDEM and ISDH established the Indiana Joint Asthma Coalition (InJAC).  The Centers for Disease Control and Prevention and the Environmental Protection Agency provided the funding to make the effort possible.  Dr. Fred Leickly – a professor of clinical pediatrics and an allergist and immunologist at Riley Hospital for Children – chairs the committee.  IKE’s Tom Neltner serves on the Coalition.

InJAC’s goal is to establish a collaborative effort to develop a state strategic plan that is designed to reduce asthma morbidity and mortality in Indiana.  InJAC has two specific short-term objectives: 

1.                   Prepare an Initial Asthma Surveillance Report by December 2003 using existing data; and

2.                   Develop an Indiana Asthma Plan by September 2004.

At the September meeting, ISDH’s Dr. Ganser presented the results of Indiana’s 2001 Behavioral Risk Factor Surveillance System.  Only adults were surveyed.  The results include:

•       13.4% of woman and 9% of men have been told by a health professional that they had asthma. 

•       30% of the adults were diagnosed with asthma when they were ten years old or younger and 59% were before reaching age 25. 

•       For adults aged 18 to 24, the prevalence was 15% – far higher than older age groups.  The study did not look at children, but they are believed to have higher percentages. 

•       33% of asthmatics visited the doctor for worsening symptoms in the past 12 months.

•       18% of asthmatics visited the emergency room in past 12 months. 

•       59% of asthmatics reported using asthma medication daily.

As with any good coalition, InJAC formed committees:  data collection and surveillance; health care provider; public education; environmental quality; and children and youth. 

Dr. Ingrid Ritchie – an air quality professor at Indiana University’s School of Public and Environmental Affairs – chairs the Environmental Quality Workgroup.  The workgroup has been meeting more than once a month since May to achieve its goal of finalizing its report to the larger committee by March 2004.  With staff support from IDEM’s Paula Smith, Cheri Storms and Tami Johnson and diverse membership, the workgroup has been active and aggressive.  It just wrapped up reviewing plans from other states and identifying things that trigger an asthma attack.  Now it is working on goals and objectives and the workgroup appears committed to developing tangible solutions.  Two options being considered include revising building and housing codes to better deal with indoor air quality and provide families with better options – and access to trained professional – to evaluate their home and future homes for possible asthma triggers and poor indoor air quality.   

Mercury Prohibitions in Schools, Stores and Novelties In Effect on July 1, 2003

Do you still see a mercury fever thermometer on display at your grocery?  As of July 1, 2003, these thermometers should not be on display – they should be behind the counter if your pharmacist chooses to sell them at all.  Novelties such as ornaments, footwear, jewelry with mercury added to them are not allowed to be sold in Indiana.  The only exceptions for novelties are if the item is an antique produced before 1980 or the only mercury is from a mercury-added button cell battery.

These changes are the result of Indiana’s House Enrolled Act 1901 which was enacted by the Indiana General Assembly in 2001 and went into effect on July 1, 2003.  Representative Dennis Avery of Evansville authored the law.  IKE was a key supporter for the law.

The law also affects manufacturers and schools.  Schools may not purchase or use mercury commodities, mercury compounds, or other mercury-added products for use in the classroom unless no adequate substitute exists for use in laboratories.  In addition to schools, anyone distributing elemental mercury must provide the recipient with a Material Safety Data Sheet and have the recipient sign a statement explaining the proper management of mercury.

For more information on the law, go to www.in.gov/idem/mercury/rules/hea1901factsheet.html.  For information on IDEM’s programs to help people reduce their use of mercury, see www.in.gov/idem/mercury.  If you see a potential violation, contact Tom Neltner at mccabe@ikecoalition.org or 317-442-3973.

Mercury in Wastewater – The Need for a Variance  

Mercury contamination is widespread in our environment.  Indiana’s fish consumption advisories for mercury are posted on all streams.  See http://fn.cfs.purdue.edu/anglingindiana/ to find out how severe the problem is in your county. 

While the requirements of HEA-1901 described above will make a difference, they are only part of the puzzle.  We need to reduce all sources of mercury into the environment whether from air deposition, on-going consumer or industrial uses, or legacies of past use and misuse.  IDEM has demonstrated the potential of voluntary efforts as well as their limitations.  Solutions are going to come by tangible actions not prolonged plan writing.  We need to rely on common sense and focused mandates that rely on a reasonable schedule.  HEA-1901 is an important step in that direction.

IDEM has undertaken another important step with its periodic review of the water quality standards.  It formed a committee to look at a mercury variance.  Paula Smith and Steve Roush of IDEM lead the effort.  IKE’s Tom Neltner serves on the committee.  The progress of the committee is reported at www.in.gov/idem/water/planbr/wqs/review/mercury.html.

The goal is to develop a mercury variance that addresses a challenge faced by most wastewater dischargers in Indiana (and the United States).  If a discharger monitors its outfall for mercury using the latest methodology, it will almost certainly find that it cannot routinely meet a permit limit for mercury.  IDEM has bought more time by granting facilities a 59-month compliance schedule in their wastewater discharge permits – NPDES permits – but the issue remains. 

The facilities need a variance from the water quality-based effluent limitation based on widespread and substantial social and economic costs.  It acknowledges the validity of the standard as well as the challenge in meeting it in the near future.  However, the current variance procedure requires extensive evaluation and analysis to get a variance.  The permit-by-permit approach is a waste of resource by IDEM and the facility.  It would be more effective to focus on taking immediate and substantial steps to reduce mercury levels in wastewater rather than work on detailed applications or prolonged planning.  The solutions are the same for most facilities.

The committee has concluded that the state needs a variance that can be obtained relatively easily by dischargers using a statewide analysis of economic impacts.  IKE is advocating that the dischargers qualifying for the variance must take a series of actions to evaluate the problem and reduce mercury in wastewater from sources such as dental offices, hospitals, and industries that use or have used mercury.  As long as the permit holder shows reasonably further progress in reducing mercury or implementing the steps, it can renew the variance.  When concentrations have reached levels that reflect background conditions or the contribution from atmospheric deposition, the facility simply needs to maintain its vigilance.  This approach ensures reasonable actions but recognizes that these facilities are unlikely to comply with the permit limit even if they do everything within their ability.

The unresolved question is whether IDEM is willing to develop a consistent approach that affects all dental offices, hospitals and other operations consistently whether they discharge to a small community that may not yet have a mercury limit or a large city that needs a variance.  The piecemeal approach will give a competitive advantage to operations in smaller communities or suburbs even when the environmental impacts are likely to be the same.  Why should a dentist office in Indianapolis be treated more stringently that one in a suburb that discharges through a small municipality?  IDEM believes it does not have the authority to impose consistent standards on all indirect dischargers. 

This new streamlined variance – already in place in other Great Lakes States – has the potential to move Indiana away from the paralysis-by-analysis situation that has plagued the issue.  Permittees are reluctant to move decisively without confidence that they are on a state-supported track.

The third piece of the puzzle is to deal with atmospheric deposition.  Right now, Congress is arguing about that since solutions will require a national approach.

Open Burning of Trash

It is Fall and that familiar smell of leaves burning is in the air again.  While some enjoy the smell, some do not, especially those with asthma.  The smoke is a fine particulate that can irritant the lungs and trigger an asthma attack.  Open burning is generally prohibited in Indiana but there are many exceptions.  This past year, the Indiana General Assembly added more exceptions to the list.  See IC 13-17-9 for the law. 

There are no exceptions to the ban on open burning of trash.  The smoke from uncontrolled trash burning is believed to be more hazardous than when only vegetation and wood is burned.  The controlled burning in a permitted incinerator poses much lower hazards.  See www.epa.gov/ttn/atw/burn/burnpg.html for more information.

IDEM and the Indiana Household Hazardous Waste Task Force are launching an “Illegal Burning Education Campaign” in April 2004 to educate officials and citizens on the hazards of backyard burning in order to protect public health from the hazardous air pollutants in the smoke.  Jeff Myers of Greene County Solid Waste District is leading the effort.  Contact him at 800-281-1930 or greensw@bluemarble.net or visit their website at www.threegreenarrows.org/burngrant.  

IDEM Opposes Public Access to Challenge its Decisions

Public notification and access to information has been one of IKE’s top priorities.  When citizens are engaged in the process and are empowered, children’s health benefits. 

IDEM has generally been supportive of public participation.  Its Guide for Citizen Participation is outstanding and has won a national award.  Its handling of the rulemaking process continues to improve to better accommodate citizen input.

But what about access to the environmental law court if the public is not pleased with IDEM’s decision?  On that count, IDEM stands firmly against the public interest.  It consistently seeks to exclude concerned citizens and the organizations that represent them from the legal review process.  The issue arises on the legal concept of “standing.”  It may seem obscure but it matters.  On two different counts, IDEM has taken legal positions to deny standing – and on one of them to deny access to industry and local elected leaders.

According to the Indiana Supreme Court Decision of Cittadine v. INDOT and Michigan Southern Railroad on June 24, 2003, the “judicial doctrine of standing is intended to assure that litigation will be actively and vigorously contested.”  A plaintiff must have a personal stake in the outcome of the litigation and show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained of conduct in order to have standing and pursue the litigation. 

The standing issue has come up in two ways:  public standing and associational standing. 

Ø      Public Standing:  When is an individual’s stake in a government decision enough to allow the individual to challenge the decision?  In the June 2003 Cittadine decision, the Indiana Supreme Court recognized an exception to that general rule called the “public standing doctrine.”  The court stated “[t]he public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve the enforcement of a public rather than a private right, continues to be a viable exception to the general standing requirement.”  The Cittadine case involved railway crossings and public safety. 

Before the Cittadine decision, IDEM argued that a resident of Indianapolis, a business that discharges to Indianapolis’ sewer system, and an elected city-county councilor have no standing to challenge IDEM’s issuance of an NPDES permit for the City of Indianapolis.  IDEM said that the citizen could only demonstrate standing if he or she could show direct injury.  The court agreed.

Ø      Associational Standing:  The legal process is intimidating.  It is especially intimidating when you are challenging a state agency’s decision regarding a prominent businesses or public official in your community.  Therefore, the U.S. Supreme Court recognizes the “doctrine of associational standing.”  In International Union, United Automobile, Aerospace, & Agricultural Implement Workers v. Brock, 477 U.S. 274, 275-76 (1986) the court stated “[t]he doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.”  As a result, the EPA has required states to affirm that associations can challenge a decision before approving delegation of authority to the state.  The Indiana Attorney General made this affirmation in 1994 to clear the way for Indiana to establish its Title V Operating Permit program.

However, no Indiana appellate court has directly dealt with the issue.  Therefore, IDEM sided with industry and opposed association standing for three citizen groups – Save the Valley, Hoosier Environmental Council and Citizen’s Action Coalition of Indiana.  For those familiar with these groups, there can be no doubt that these organizations would be vigorous representatives of the public interest.  The case involves the Indiana-Kentucky Electric Company and its power plant in Madison Indiana.   

IDEM views the issue as a narrow, technical administrative law question that they had little choice to support given the state standing requirements.  IKE supports the environmental groups challenge to IDEM’s position.

The public has a critical role in challenging IDEM’s decisions especially when locals are likely to be intimidated.  Hopefully, Governor Kernan will recognize that the industry can be effective enough on its own as it argues to restrict public access to the courts.  It does not need to help of a public agency to do it. 

Birth Defects and Cancer Registries

As required by IC 16-38-2-10, ISDH published its “Indiana Cancer Facts and Figures – 2003.”  It is an excellent summary of the latest perspectives on cancer with supporting statistics.  Download a copy at www.in.gov/isdh/factsfigures2003.pdf (0.9 MB).  The report relies heavily on The Harvard Report on Cancer Prevention supplemented with county-by-count statistics and details the key types of cancer.  Here are some key observations:

Ø      30% of cancer deaths are caused by tobacco;

Ø      30% of cancer deaths could be reduced by improving nutrition and maintaining a recommended body weight;

Ø      3% of cancers are caused by socioeconomic status

Ø      2% of cancers are caused by environmental pollution. 

Ø      Indiana has a significantly greater rate of cancer than the nation for kidney and renal pelvis cancers (30%) long and bronchus cancers (23%)

Ø      Comparing the counties:

•       Overall cancer rate:  Clay County has the highest rate - 5.7% higher than the next closest county.

•       Female breast cancer:  Clay and Benton counties have the highest rates – 9.8% higher than the next closest county.

•       Colon and rectum cancer:  Knox County has the highest rate – 10% higher than the next closest county.

•       Lung cancer:  Clay, Crawford, Jennings, Marion, Scott and Sullivan counties have the highest rates.

•       Prostate cancer:  Montgomery and Ohio counties – 6.6% higher than the next closest county.

An annual report on the Birth Problems Registry is due on November 1, 2003 pursuant to IC 16-38-4-18.  A report is not yet posted on the web.  For more information on the Birth Problems Registry see www.in.gov/isdh/programs/ibpr/index.htm

IDEM Compliance Program – Alliance Between IKE and Hoosier Chapter of Sierra Club

Indiana can have the best laws in the nation but they will not protect children’s health if people do not comply with them.  Many businesses and government agencies comply because they know it is the right thing to do.  But compliance is far from universal.  Those that don’t comply often get a competitive advantage over their conscientious counterparts. 

Yet, IDEM only has enough funding to inspect a few of the potential violators each year especially when if comes to common types of pollution such as smoke, sewage, asbestos, lead, and oil.  Compliance usually comes down to a fear of being caught.  Violators must feel that IDEM will use its full enforcement authorities when a violation is found.  While fair and consistent enforcement is essential, penalties must be predictable and significant in order to deter violators.  In addition, violators have to have a reasonable fear that they will be caught. 

Many companies have approached IKE and the Sierra Club in the past year complaining that IDEM’s compliance program is not fair, consistent, or effective.   They claim that IDEM’s deterrence value has gone down in recent years and that undetected violations are increasing.  They say that the biggest breakdown is that IDEM is unlikely to detect a violation. 

They raised their concerns even though they may be accused of being disloyal to their employer. But they care about public health and the environment; recognize the long-term damage serious violations can have on the image of their industry; and worry about the competitive disadvantage they may face when they do their job right. 

In response, IKE and the Hoosier Chapter of the Sierra Club have teamed up to assess IDEM’s compliance and enforcement program.  Our goal is two-fold:

1.                  Determine if the concerns can be substantiated in a few key areas; and

2.                  Develop recommendations to resolve any problems that may be identified especially problems that may be systemic or widespread.

As demonstrated by the IDEM construction permitting program, accountability drives public agencies.  If problems are identified, one option the state may consider is requiring IDEM to estimate non-compliance in key areas and then develop inspection strategies to address the problem.  This approach avoids the problem of regular inspection of facilities that are most likely to be in compliance while relying on only citizen complaints to address those that operate outside the system entirely.  Examples of areas that could be estimated include the percent of failing septic systems or the percent of buildings being demolished without the mandatory asbestos notification. 

If you have ideas or concerns, please contact Tom Neltner at mccabe@ikecoalition.org or 317-442-3973.   

Sewage in Our Streams

On behalf of the Indiana Clean Water Coalition, IKE publishes the Sewage in Our Streams newsletter focusing on animal and human sewage management issues in Indiana.  It was published in February, May, and September of 2003.  See www.ikecoalition.org/publications.htm for links.  Key issues of interest are:

•       Two residents of the City of Berne issue a Notice of Intent to Sue the city for violations of its NPDES permit related to the operation of its sanitary and combined sewer systems.

•       Communities with combined sewer overflows must submit a plan to notify the public when a CSO occurs by November 9.  The plan must be fully implemented by February 7.

•      As of September 8, 70 of the 105 CSO Long-Term Control Plans have been submitted.  None have been approved.  Three plans are late.

•       IDEM is considering rulemaking to revise the E. coli water quality standard.  The comments by municipalities call for a significant rollback in protection.

•       IDEM publishes non-rule policy regarding sewer connections over environmental community’s objections.  The policy makes it clear that municipalities do not have to consider the impacts of sewer connections on combined sewers during wet weather. 

•       CSOs total more than 10 billion gallons in the first eight months of 2002 excluding Fort Wayne.  Fort Wayne is the lone CSO community that refuses to report CSOs pursuant to the regulations.

•       Sanitary sewer overflows and bypasses reported 2005 times in 2002 for more than one billion gallons discharged.

•       As of August 20, 135 potential confined animal feeding operations have not responded to a letter from IDEM notifying them that they may need to be notified.  204 of the 529 potential CAFOs submitted a Notice of Intent letter to be covered by a general NPDES permit. 

•       Negotiations on a general NPDES permit rule for CAFOs are drawing to an end with a Water Pollution Control Board vote expected in early January.

•       IDEM takes action to shutdown Pohlmann Farms in Montgomery County for its ninth spill.

Lead-Safe and Healthy Homes  

On behalf of the Lead-Safe Indiana Task Force, IKE publishes the Indiana Lead-Safe and Healthy Homes Newsletter. The newsletter was published in February, March, June, May, September and October of 2003.  See www.ikecoalition.org/publications.htm for links.  Key issues of interest are:

•       Indiana revises its lead-based paint activities rule effective October 10, 2003;

•       2003 Indiana Lead-Safe and Healthy Homes Conference in October a rousing success – presentations posted on-line;

•       With IDEM’s support, IKE publishes four pamphlets to explain the new rules to landlords, inspectors, and contractors;

•        IDEM sends letters to building permit officials requesting that they attach a flyer on lead-based paint regulations to renovation permits;

•       ISDH begins work on a plan to eliminate lead poisoning by 2010;

•       Lead risk assessments have room for improvement;

•       IKE and Indiana Legal Services have success leveraging the federal disclosure rule to improve rental property;

•       National Paint and Coatings Association reach agreement with 46 state attorney generals to better warn users and train contractors of hazards during surface preparation; and

•       Indiana General Assembly requires reporting of adult blood lead tests and licensing of home inspectors.

Thanks for improving kids' environment!  

If you have any questions or comments about this newsletter or Improving Kids’ Environment, contact Tom Neltner at mccabe@ikecoalition.org, 317-442-3973 or 5244 Carrollton Avenue, Indianapolis, IN  46220-3181.  Please let us know if you do not want to receive this newsletter.  You may get enough emails and faxes already.  We do not want to add to the burden if you are not interested in receiving the materials. 

IKE publishes two additional newsletters on a quarterly basis.  Let Tom Neltner if you want to get copies of either of those newsletters.  To avoid duplication, issues addressed in these newsletters are only briefly mentioned in this newsletter.

§         “Sewage in Our Streams” newsletter on behalf of the Indiana Clean Water Coalition.  This newsletter deals with issues and events that directly relate to sewer overflows, sewer management and septic systems.

§         “Indiana Lead-Safe & Healthy Homes” newsletter on behalf of the Indiana Lead-Safe Task Force.  This newsletter deals with issues and events involving lead-poisoning and healthy homes in Indiana.

If you want to become a member of IKE and make a deductible donation, please go to www.ikecoalition.org/membership.