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Indiana Clean Water Coalition

Sewage in Our Streams Newsletter

April 2004 Edition   

This newsletter is written and edited by Tom Neltner of Improving Kids’ Environment on behalf of the Indiana Clean Water Coalition.  For information about the newsletter articles, please contact him at mccabe@ikecoalition.org or 317-442-3973. 

Click here for a version in PDF

MUNICIPAL SEWAGE ISSUES

Welcome Cyndi Wagner

Congratulations to Cyndi Wagner.  On November 10, she became the new section chief of IDEM’s wet weather section.  With her previous experience within IDEM, the private sector, and Marion County Health Department, she is prepared to continue the excellent work of Reggie Baker.  Our best wishes!

SSO and Bypass Problems

Sierra Club and IKE have been reviewing IDEM's NPDES files to get a better understanding of the compliance issues for municipalities that regularly have SSOs and bypasses.

So far, we have seen some pretty serious problems on our initial review.
Regularly we see SSOs and bypasses reported on the monthly report not showing up on the SSO/Bypass Database indicating that they were not properly reported or documented somewhere in the system. We often find the follow-up reports missing.

Many of the follow-up reports make no attempt to comply with the permit requirement to identify “steps taken or planned to reduce or eliminate the noncompliance and prevent its recurrence.”  Others simply blame a light rain as an act of god and treat the sewage overflows as a fact of life.  Few reports identify tangible steps to investigate and remedy the problem or even explain a broader effort to evaluate sewer capacity.  We have even identified situations where capacity certifications were issued for new connections at the same time as SSOs were regularly occurring. 

Almost 2000 Sewage Discharges in 2003

Every year, Sierra Club and IKE have reviewed the 24-hour reports that NPDES permit holders must make to IDEM.  Permit holders must report unanticipated bypasses, noncompliance that may pose significant danger, plant upsets, sanitary sewer overflows and dry weather combined sewer overflows.   Permit holders are not required to report wet weather CSOs or the gallons bypassed.  Almost all of the reported events are from municipalities and the majority involves wet weather. 

There were 1,954 reported events in 2003, down from the high of 2005 events in 2002.  43 facilities had ten or more events, down from 59 facilities in 2002.  The total reported gallons were 1.3 billion gallons, up from 1.0 billion in 2002.  Please note that municipalities do not consistently report gallons.  Anderson reports the gallons in bypasses.  Many municipalities do not report any gallons in bypasses even though they know the number – preferring to provide the information in the monthly discharge monitoring report.  Here is the tally for 2003.

The Indiana Clean Water Coalition repeats its plea for IDEM to make this information available on its website and to provide timely updates.  The Coalition also asks for IDEM to begin the promised rulemaking to require municipalities to notify the public when the events occur.  The public has the right to know! 

These 43 facilities are the focus of a joint Sierra Club and IKE Environmental Compliance Project.

Hanover and Milan

Two cities stand out on the list:  Hanover and Milan. 

For Hanover, IDEM issued a notice of violation on April 2000, an agreed order on March 2001, and an early warning notice on July 2002.  Despite this intervention, Hanover has seen the following trends in reported SSOs and bypasses.

Year           # of Events            Gallons
1999                5                             100
2000                16                    937,200
2001                22                    811,050
2002                41                 4,207,500
2003                51                 9,187,100

For Milan, the situation is similar but worse. IDEM issued an early warning notice in September 1997, an agreed order on May 1998, a sewer connection ban in May 2000, and a notice of violation (NOV) in June 2003.  The NOV addressed a number of problems including 18 months of missed monthly discharge monitoring reports.  Despite this intervention, Milan has had the following trends in bypasses and SSOs.  

Year                 # of Events 
1997                        11
1998                        14
1999                        17
2000                        34
2001                        55
2002                        69
2003                      116

CSO Long-Term Control Plan Status Report

IDEM provided IKE with the following status report on CSO Long-Term Control Plans for Indiana’s 105 CSO communities as of March 5, 2004.  Click here for a copy.

Here are the cities moving up (which is good) since September 8, 2003:

·    Moving from “complete and ready for detailed review” to “under detailed review”:  Butler and Mishawka

·    Moving from “working to supplement submitted plan” to “complete and ready for detailed review”:  Hammond, Ridgeville, Redkey,

·    Moving from “due in 2003” to “complete and ready for detailed review”:  Lowell, Bluffton, Paoli, and Summitville,

·    Moving from “due in 2003” to “working to supplement submitted plan”:  Valparaiso,

Other cities of note:

·    Goshen submitted its plan one year early and it intends to transport potential overflows and treat at the plant.  It also plans to eliminate the high priority CSOs through their park.

·    Milford sealed its only outfall temporarily while they upgrade the plant to handle any other the peak flows which would have caused a CSO.  This outfall hasn't discharged in years.

·    Warren, Bremen and Ossian have separated their sewers.  IDEM is drafting specific post-construction monitoring requirements for their permits.

·    Indianapolis and Fort Wayne are undergoing dramatic rewrites to improve their LTCP.

Public Notice of Combined Sewer Overflows:  Plans Should Be Fully Implemented

By November 9, Indiana’s 105 CSO Communities were required to submit their procedures to notify the public when a CSO occurs or is about to occur.  The procedures were to be fully implemented by February 7.  Only Alexandria, Fortville and Brazil failed to meet the deadline.

Thanks to IDEM for staying on top of the requirement.  It issued notices of violation to the three delinquent communities.  IDEM reports that most of the submitted plans were deficient but that communities have been cooperative in fixing their plans.

The Indiana Clean Water Coalition has not yet reviewed and assessed the plans.  It hopes to do so during the summer.  Please contact Tom Neltner at 317-442-3973 or mccabe@ikecoalition.org if you have had any experiences with the notice whether good or bad. 

Indy’s Early Action Projects

Indianapolis reported that it is completing $230 million in projects to reduce combined sewer overflows.  The city moved ahead with these early action projects while completing revisions to its Long-Term Control Plan.  The city has proposed more than $500 million in a second phase of projects while the plan analysis is wrapped up.  It is negotiating with IDEM and EPA now to determine which projects it can move ahead with in confidence that it will be consistent with the final plan.

IDEM, EPA and the City of Indianapolis have reached an agreement on the final steps in its alternatives analysis.  Indianapolis is scheduled to submit the plan in late November 2004 to IDEM and EPA for approval.  Difficult issues such as financial capability, sewer connection policies, and use attainability analysis still must be resolved.  The systemic alternatives analysis has already yielded some major insights and cost savings so the Coalition is hopeful that these issues can be worked out. 

If resolved in a manner that addresses the disparate impacts of combined sewers on minority communities in Indianapolis, the civil rights complaint may be able to be withdrawn.  Concerned Clergy, Mapleton-Fall Creek Neighborhood Association, Hoosier Environmental Council, Sierra Club, and Improving Kids’ Environment in October 1999 filed the complaint.  EPA accepted it for investigation in October 2001.  The parties mutually agreed to suspend EPA’s investigations pending negotiations in December 2001. 

CSO Regulatory Option / E.coli Rulemaking Workgroup

IDEM created the E. coli rulemaking workgroup in 2002 to provide input to IDEM regarding possible revisions to the bacteriological criteria based on new guidance issued by U.S. EPA in May 2002 regarding implementation of the 1986 ambient water quality criteria for bacteria.  In late 2003, the Indiana Association of Cities and Towns (IACT) as well as the Indiana Water Environment Association, the Inter-Agency Municipal Task Force and environmental representative, Dick Van Frank, requested that IDEM hold off proceeding with the E.coli rulemaking in order to incorporate the wet weather issues into this rulemaking and discuss these issues with IACT and other interested parties.  IDEM agreed to expand the scope of the workgroup’s mandate in accord with the request.

The CSO Regulatory Options/E. coli Rulemaking Workgroup will meet on April 7, 2004, 1:00 p.m. to 3:30 p.m. at IDEM’s Shadeland Office, 2525 North Shadeland Avenue, Room C. 

The four issues are:

·         “Triennial Review” of e-coli criteria and designated uses

·         Individual NPDES permits for CSO communities

·         Development/Review of CSO Long Term Control Plans

·        Federal and State Enforcement Actions involving CSO communities

IDEM is considering the following steps:

·          Individual NPDES Permits:  Work with individual applicants to modify permits or to renew permits that establish a compliance schedule for e-coli for CSO discharge points authorized to discharge per an approved Long Term Control Plan.  The compliance schedule would be tied to the specifics of the approved Long Term Control Plan and can be revisited with updated information in each permit cycle.

·          Variances:  Develop a model variance, with input from the public, for use by a municipality that has an approved long-term control plan.  Work with public to determine interest in a modification to the statute to provide for additional renewal of CSO related (and possibly other) variances as appropriate

·          E-Coli Water Quality Standard:  Consider establishing a subcategory for primary contact that provides up to 10% exceedances allowance for streams impacted by CSO discharges.  The Indiana Clean Water Coalition has strongly objected to this approach in the past since it blends sampling for dry-weather and wet weather conditions. 

·          Use Attainability Analysis/Designated Uses:  Develop options for bacteria criteria that may apply if the full body contact recreational use is revised or ‘suspended’ for streams impacted by CSO discharges (e.g., narrative, secondary contact numeric, monthly geometric mean, no criteria for periods/times with authorized discharges, updated every three years).  Work with public to determine interest in a modification to the statute to provide for a streamlined process for submittal of revised designated use/criteria to EPA for approval.

·          Enforcement Orders:  Pursue state administrative agreed orders upon need or request.  Seek EPA concurrence.  Pursue revisions to EPA’s current enforcement-based approach for CSO communities.

Berne’s – Notice of Intent to Sue Mooted by Election of New Mayor

In September, two residents filed a notice of intent to sue the City of Berne for its ongoing violations of its NPDES permit requirements for combined sewer overflows.  In October, IDEM began an enforcement action.  In November, a new mayor was elected.  The new mayor, engineer, and attorney are taking the issue seriously – finally.  The city council is now wrestling with enforcement of the 30 year old – but consistently ignored – sewer ordinance. 

RESIDENTIAL SEWAGE ISSUES

On-Site Sewage Discharge Permits in Allen County.

The Water Pollution Control Board approved a rule that establishes a special district in Allen County to deal with the widespread problem in that county of failing septic systems.  The rule is available at www.in.gov/legislative/register/Vol27/05Feb/02F327020327.PDF.

General Assembly Blocks ISDH Septic System Rule

The Indiana General Assembly adopted HEA-1017 in March.  The law blocks critical aspects of the Indiana State Department of Health’s new rules on septic and other on-site disposal systems.  The rule was prompted by the state’s new groundwater protection standards.  The controversial provisions deal with nitrate and nitrite standards.  The law also directs IDEM and ISDH to develop a report before January 1, 2009 addressing specific concerns. 

Housing developers objected to the cost of the rules and had concerns about the technology.  While the environmental community supported the rules, the unilateral manner in which ISDH adopted the rules, ISDH’s adversarial approach, and ISDH’s failure to use the flexibility it the groundwater standards made it difficult to fight.

CONFINED ANIMAL FEEDING OPERATIONS

CAFO Rulemaking Finalized

On Wednesday, January 15, the Indiana Water Pollution Control Board unanimously adopted a general NPDES permit rule for Concentrated Animal Feeding Operations.  This rule applies to medium and large CAFOs.  Facilities covered by this rule do not need comply with the preexisting confined feeding operations rule.

The rule was driven by the success of Save the Valley in the Federal District Court.  In 2002, the court determined that IDEM was not complying with the federal NPDES permitting rules and demanded that EPA withdraw IDEM's authority to administer the program if Indiana did not issue NPDES permits for the facilities.  In response, the Water Pollution Control Board has adopted a series of four emergency rules to buy it time to finalize a non-emergency rule.  Special thanks to Richard Hill of Save the Valley and Scott Treadway, the attorney on the case, for the tremendous diligence in the litigation.

No one loves the rule but it represents a fair compromise of competing interests.  All stakeholders negotiating the rule supported the rule including HEC and Sierra Club.  Rae Schnapp represented HEC.  Tom Neltner represented the Sierra Club. 

For a copy of the rule in the April 1, 2004 Indiana Register, go to the www.in.gov/legislative/register/April-1-2004.html. 

The new rule will help in the following ways:

·          Impose "no discharge" requirement on CAFOs.  A discharge is only allowed in a storm that is predicted to occur once every five years.

·          Allow citizen suits against CAFOs that violate the permit where IDEM is not acting.

·          Require inspection of field tiles after application.

·          Allow citizen's to petition IDEM to require the facility to have an individual permit.  IDEM has 90 days to approve or deny the petition.  If there is no response, the petition is deemed denied and the petitioner can appeal the decision.

·          Establish clear criteria for IDEM to require an individual permit.  A discharge that would be required to be reported under the Indiana Spill Rule is enough to trigger the requirement.  If a citizen believes there is a spill, he/she will probably petition IDEM right away.

·          Provide public notice when the initial general permit is issued.  If construction is involved, adjacent landowners get notice.

·          At the five-year renewal of the general permit, IDEM will publish an annual notice in the newspaper for the county.  Facilities can notify adjacent landowners directly and avoid this five-year notice.

·          In the notice of intent letter, the facility must identify the other states it owns or operates facilities and must certify that it has not had a discharge in the past five years.

·          Facilities must submit - and certify - an annual report on their operations.

General Assembly Makes Minor Fixes with HEA-1017

In March, the Indiana General Assembly adopted HEA-1017 to respond to the new rule.  This approach was much better than an override of former Governor O’Bannon’s veto last year of SB-533.  HEA-1017 does the following:

·          Makes it clear that the NPDES permit avoids the need for a separate confined feeding operation approval.

·          Establishes fees of $100 every five years for a general permit and $250 for an individual permit.  This is barely enough funding to cover the copying and mailing costs in managing the permits.

CAFO Individual NPDES Permits

“Any time” has been the message from IDEM for the past six months on the 16 draft individual CAFO permits.  These 16 facilities were required to get individual permit because they had spills that impacted waters of the state.  The permits were initially published as a draft for public comment in December 2002.  Apparently, they will be issued for another public comment on a draft permit – soon – after the permitting responsibilities are shifted from one office to another.  The batch has grown to 40 individual permits.

IDEM Acts Strongly on CAFO Enforcement

In the past year, IDEM has taken enforcement action against 22 confined feeding operations in 2003, up from 15 in 2002.  We applaud the enhanced effort and hope it will continue.  As we review the actions, IDEM is taking complaints by residents about specific incidents seriously.  Contact IDEM at 888-233-7745 to report any discharge you see.  To track the status of an individual enforcement action, go to www.in.gov/idem/compliance/.

The compliance assurance statistics are not yet available for 2003 but here they are for 2002.

·                     Total number of CFO inspections for 2002                 1383

·                     Total number of CFO's in compliance                         1139    

·                     Total number of CFO's out of compliance                     244

·                     Total number of violations documented                          617

·                     Total number of CFO's referred to enforcement               15

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.