Indiana Clean Water Coalition

Sewage in Our Streams Newsletter

September 2003 Edition   

Click here for a version in Word 

MUNICIPAL SEWAGE ISSUES

City of Berne – Notice of Intent to Sue

Founded by Swiss Mennonites in 1852, this charming city of 4,150 people about 35 miles south of Fort Wayne sits near the north-south continental divide.  Treated wastewater flows to the Wabash River, but when raw sewage overflows from three combined sewer overflows, the sewage goes to the St. Marys River and eventually to Lake Erie. 

These CSOs are the subject of a Notice of Intent to Sue for Clean Water Act violations filed with Berne’s Mayor Fulton by Kerry and Deb Jones on September 5.  Kerry and Deb Jones have fought the problem of CSOs for more than 15 years.  The largest CSO discharges to Sprunger Ditch that flows by their home.   The ditch is filled with unmentionables and floatables leaving it gray and black with waste. 

From October 2001 to June 2003, the City reported 200 million gallons of combined sewer overflows on 50 days.  The City’s Long-Term Control Plan sets a 15-year goal of getting the overflows down to 12 events per year – a far cry from the mandates of the Clean Water Act. 

The dry weather flows makes the situation particularly egregious.  The Jones have extensive photographic documentation.  In July, Tom Neltner swung by their home on a trip to see the CSOs flowing into the ditch.  Yes, it was flowing even though the rains had stopped several days before.   

Despite knowing Deb and Kerry by name, IDEM has done little to change the problem in recent years.  No enforcement for dry weather violations.  No denial of the Long-Term Control Plan.  Sewer connection permits have been approved.   Under pressure from the community, IDEM did issue an Early Warning Notice.  The Early Warning Notice has little or no legal impact and under state regulations should have been issued to all CSO communities years ago.  It was too little too late given the City of Berne’s reluctance to confront the issues.

Photos and a copy of the notice are available on the website.

Public Notice of Combined Sewer Overflows:  Plans Due November 9

By November 9, Indiana’s 105 CSO Communities must submit their procedures to notify the public when a CSO occurs or is about to occur.  They must have the procedure fully implemented by February 7.  As of September 8, the City of Washington is the only one to have submitted a plan.

Tom Neltner has checked with several cities about their plans.  Most do not want to discuss it saying only that they will comply with the requirements that include developing notification lists and posting signs at access points.  If you live in a CSO community, contact them now about their plans to ensure that the plans will be effective.  It is especially important to know if they are planning to vary from the basic requirements and submit an alternative procedure according to 327 IAC 5-2.1-6(a).  If any municipality is, please contact Tom Neltner at mccabe@ikecoalition.org.

If the municipality gives you the cold shoulder, remind them that you will exercise the public’s right to demand a review by IDEM pursuant to 327 IAC 5-2.1-4(c)(5)(B). 

Finally, always specifically ask to be notified of CSO events pursuant to 327 IAC 5-2.1-6(a)(2).

Reggie Baker Moves On

In July, Reggie Baker left IDEM’s Urban Wet Weather Section to serve as IDEM's coordinator for Homeland Security.  If you know Reggie, you will see that it is a good fit.  But if you know Reggie, you are also aware that he is probably also one of the greatest recreational users of Indiana’s streams and rivers.  As an avid canoeist and kayaker, he pushed for making the waters safe for the sport.  We will miss him!

Status of Long-Term Control Plan Review

Finally, CSO Long-Term Control Plans have been coming into IDEM.  Thanks to Dave Tennis, Lynn Riddle and others in the section for keeping up on this critical task.  Here is a status report as of September 8, 2003:

·           0 Plans Approved

·         70 Plans Submitted

o        15 undergoing detailed review.

o        47 deemed complete and are awaiting detailed review.

o          8 are incomplete and the municipality has been directed to supplement the plan in order for it to be complete.

·           6 Plans Due Later in 2003

·         14 Plans Due in 2004

·           5 Plans Due in 2005

·           6 CSO Municipalities do not yet have a legal requirement to submit a plan.  These include Angola, Brazil, Bremen, Gary, Ossian, and North Vernon.  IDEM is working to get the requirement in place for these municipalities.

·           3 Plans Late – Akron, Elwood and Warren.  IDEM is pursuing enforcement action against these communities. 

Click here for a complete list provided by IDEM including the number of outfalls for each municipality.

E.coli Standard

As part of its triennial review of Indiana’s water quality standards, IDEM has formed a series of workgroups.  While the work has been complex and a bit overwhelming, IDEM has done an excellent job keeping people informed and engaged.

One committee is evaluating the bacteria standard.  Currently it is based on E. coli.  One reading over 235 colonies per 100 ml or 5 samples with a geometric mean over 125 is a violation of the standard.

Several municipalities submitted comments during IDEM’s first notice of comment period.  The comments from municipalities make it clear that they want to relax the standard to avoid wet weather compliance problems.   The City of Indianapolis provided the most detailed and extensive comments.  For example, they recommend:

o        Requiring that sample be based on a minimum of 10 samples.

IKE's response:  This approach has two problems.  First, it does not require that the samples be taken on the same day.  The end result is that water quality will be measured under a variety of conditions including wet and dry weather.  

Second, even if taken on one day, the ten-sample minimum would set an arbitrary line that says that there would be no violations if a community chose only to take nine samples.  The entire analysis is about statistical confidence.  There is a single sample that is sufficiently high to say with confidence that the bacteria standard has been exceeded.

o        Dropping all bacteria standards for water that is not designated as primary contact water or for bathing. 

IKE's response:  The science behind sewage and diseases is clear.  There is no doubt that a kid tying off the fishing lure with his mouth or eating a sandwich after picking up a fish or turning over rocks is a source of exposure that must be protected.  Remember, E.coli is only a surrogate that indicates fresh sewage.  Many other pathogens - pathogens that live much longer than E. coli - may be present. 

The challenge is to find the best number based on what we know, not to remove the standards until we are confident of the science is perfect.  When it comes to public health, we cannot wait for perfection especially when it comes to sewage. 

IDEM Publishes Sewer Connection Policy

IDEM published its “Review of Sanitary Sewer Construction Permit Applications For Communities with Combined Sewer Overflows” in the July 1, 2003 Indiana Register.  This non-rule policy document explains how IDEM interprets and will apply state sewer construction permitting regulations.  Click here for a copy of the policy in Word. 

IDEM presented this policy to the Water Pollution Control Board at its April 9 meeting.  While the Board expressed concerns with the policy, the rulemaking body was told that it did not have a formal role in determining how IDEM implements the rules the Board adopts.  The Indiana Association of Cities and Towns made a presentation in support of the policy.  Dick Van Frank, Leon Bates and Tom Neltner of the Indiana Clean Water Coalition made a presentation opposing the policy. 

While there are many areas of contention, the key issue is the term water pollution treatment/control facility.  The rule 326 IAC 3-1-2(24) defines the term as "Water pollution treatment/control facility" to mean any equipment, device, unit or structure at a site that is used to control, prevent, pretreat, or treat any discharge or threatened discharge of pollutants into any waters of the state of Indiana, including public or private sewerage systems."  

IDEM says that this term refers only to the wastewater treatment plant and does not include the sewer system.  IDEM observes that there are separate definitions for "water pollution treatment/control facility" and "sanitary sewer" in 327 IAC 3-1-2 and the language "water pollution treatment/control facility or sanitary sewer" in 327 IAC 3-2-1)." 

Basically, IDEM takes the word "including" and turns it into "excluding."  The environmental community is preparing a lawsuit to get IDEM to follow the regulations and reverse its policy.

Indy’s Existing Use White Paper.

NPDES permits require that combined sewer overflows comply with numeric and narrative water quality standards.  As those standards exist today, any CSO discharge is essentially a violation of the permit.  The NPDES permit holders are justifiably anxious about this and worry about citizen suits even when IDEM says it will exercise its enforcement discretion. 

The only way to change the standard is a Use Attainability Analysis.  The most likely basis for relaxing the standard is to show that compliance would result in substantial and widespread economic and social impact. 

However, federal regulation require that “existing uses” be protected without regard to the economics.  “Existing uses” are defined at 40 CFR 131/3(e) “those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.”   The City of Indianapolis is wrestling with the definition of an existing use as it considers the option of a pursuing a use attainability analysis.  It prepared a “white paper” stating its arguments for a narrow definition of existing use – one that focuses on whether the water quality was actually attained rather than the existence of the use.  Click here for a copy of the white paper.

The Indiana Clean Water Coalition is opposed to the approach put forth by the City of Indianapolis.  The white paper only provides half of the story and ignores EPA documents that would support a broader view of existing use.  No word from IDEM and EPA Region 5 is waiting until IDEM makes a decision before acting.

Major Decision by Federal Court in Cincinnati

In response to a lawsuit by Sierra Club, On September 5, Federal District Court Judge Spiegel set a deadline of October 7, 2003 for the Hamilton County, Cincinnati, Metropolitan Sewer District to come up with plan to stop illegal raw sewage pollution.  Otherwise, the case would immediately be scheduled for trial.  The judge also indicated that he would permit the Sierra Club to proceed immediately with enforcement of its citizens' suit, which has been stayed, pending the lengthy settlement discussions between the U.S. EPA, the Ohio EPA, and MSD.

The complaint alleges that residents have filed 12,000 complaints to the City of sewer backups in Hamilton County and Cincinnati in the last five years but little has been done to fix the problems.  The Sierra Club has contacted hundreds of these complainants and discovered that MSD does not provide victims of sewage backups with health and safety information and/or suggestions on addressing the problem.

CONFINED ANIMAL FEEDING OPERATIONS

No Response from 135 Operations

On May 8, the Water Pollution Control Board adopted an emergency rule for Concentrated Animal Feeding Operations.  CAFOs are large confined feeding operations or medium CFOs that have had a spill or manure discharge.  The emergency rule establishes a general permit program for the CAFOs that are required to get NPDES permits pursuant to the Save the Valley v. EPA federal court decision. 

Anticipating adoption of the rule, on April 22 IDEM sent a letter to 529 potential CAFOs giving them until August 14 to submit a notice of intent letter.  This letter allows them to be covered by the general NPDES permit.  As of August 20, here are the vital statistics:

·         204 submitted Notice of Intent Letter

·         149 claimed that they were exempt from the rules because they won’t have discharge unless a 25-year, 24-hour storm event occurs (worst 24-hour storm event predicted to occur over 25 years)

·         45 altered their allowable animal headcount to become exempt

·         38 submitted an application for an individual NPDES permit (usually because they had a spill)

·         8 were medium CAFOs that disputed that they had a discharge.

·         4 were void for various reasons.

·         135 had not responded by the August 14 deadline.  IDEM is investigating each of the CAFOs that have not responded to the letter.  Some may not be covered by the rule and not bothered to respond. 

If you are curious about CAFO’s in your county, please contact Tom Neltner at mccabe@ikecoalition.org and he can get you the information from the spreadsheet IDEM provided. 

CAFO Rulemaking Negotiations

The emergency rule is only a stop-gap measure until the Board finalizes a rule through the normal rulemaking process.  The emergency rule only lasts 90 days.  The Board renewed the rule on August 7, and can renew it one more time. 

IDEM is developing final rule language and hopes to present it to the Board for adopting in November.  While I am not satisfied with the current rule language, I am impressed with IDEM’s efforts to keep people involved, respond to comments, and make the rule work.  It has held four workgroup meetings and plans another in Indianapolis on September 19 at 9:00.  In addition, Bill Beranek of the Indiana Environmental Institute has been convening a complementary group to talk through the issues. 

Here are the tough issues that remain:

1.                   Relationship of CFO Approvals and NPDES permits;

2.                   Criteria for requiring an Individual NPDES Permit;

3.                   Requirements for a Soil Conservation Practice Plan;

4.                   Restriction on land application relative to expected rain events;

5.                   Identification and monitoring of drain tiles;

6.                   Restrictions on application of manure to frozen or snow covered ground; and

7.                   Public Notification for Notice of Intent Letters.

Contact Tom Neltner at mccabe@ikecoalition.org for more information.

Governor O’Bannon Vetoes SB-533

In a surprising but encouraging move, Governor Frank O’Bannon vetoed Senate Bill 533 despite the bill’s strong support in the legislature.  The bill would have the IDEM’s decision to approve the construction of a CAFO as a decision that the public could appeal. In his veto, the Governor said “If a major new livestock operation is proposed in a community (or an existing one expands), I believe it is appropriate that an independent agency such as IDEM review and approve construction plans to ensure environmental requirements will be met before the facility is constructed.  The public expects the opportunity to fully participate in such an approval process.  Further, this decreases the likelihood of enforcement action, litigation, and penalties after deficiencies are identified.  This is important in light of the fact that 40 of 44 CAFO operators applying for a permit in a recent six-month period required modifications to their plans in order to meet standards.  Requiring a construction permit is sound public policy.”  He also was concerned that the bill would have had unintended consequences and might have forced confined animal feeding operations to get NPDES permits from the feds.  Go to www.in.gov/serv/presscal?PF=gov&Clist=4&Elist=71431 for a copy of the veto letter.  

CAFO Individual NPDES Permits

Last December, IDEM published 16 draft NPDES permits for CAFOs that had illegal discharges.  Sierra Club and Hoosier Environmental Council commented on the permits.  Apparently, the permits are undergoing major revisions and will be republished as drafts . . . .soon.

Pohlmann Farms in Crawfordsville Shuts Down – May Reopen by New Owner

In April, IDEM finally took action to close down Pohlmann Farms after it had its ninth spill.  In June, the facility closed.  Finally, the struggling Little Sugar Creek gets some relief.

In June, Iowa’s Natural Pork Producers II bought the facility and announced that it will be converted to a smaller, farrowing operation.   The company has had problems with its operations in Iowa.  At IDEM’s suggestion, NPPII met with Friends of Sugar Creek to discuss their plans and their operating record.  Friends of Sugar Creek is the local environmental group tracking Pohlmann Farm’s performance.  Tom Neltner participated in the meeting.  It was a candid and productive discussion.  Since then, NPPII has promptly followed-up with additional.

NPPII said that they will not open the facility until it resolves the outstanding issues with IDEM. 

Thanks for improving kids' environment!   If you have any questions or comments about this newsletter, the Indiana Clean Water Coalition or Improving Kids’ Environment, contact Tom Neltner at mccabe@ikecoalition.org, 317-442-3973 or 5244 Carrollton Avenue, Indianapolis, IN  46202-3181.  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 at mccabe@ikecoalition.org know if you want to get copies of either of those newsletters.

§         “Improving Kids’ Environment” newsletter.  This newsletter deals with all issues and events IKE is involved in.  To avoid duplication, topics dealt with in this newsletter or the “Sewage in Our Streams” newsletter are only briefly mentioned.

§         “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.  

Tom Neltner
Improving Kids' Environment

5244 Carrollton Ave.

Indianapolis, IN  46202-3181
317-442-3973 or 317-283-5648
Fax:  866-234-8505
www.ikecoalition.org

mccabe@ikecoalition.org