Chapter Asserts That Indiana Violates Clean Water Act By Tom Neltner, Chapter Executive Committee Member and Legal Liaison The Hoosier Chapter has challenged the validity of Indiana’s rules regarding permits for storm water discharges from municipalities. Storm water contains many pollutants, including toxics, which degrade the quality of Indiana’s recreational waters. The rules authorize the Indiana Department of Environmental Management (IDEM) to issue National Pollutant Discharge Elimination System (NPDES) permits to hundreds of municipalities that operated or will operate storm water sewer systems that discharge into the waters of the state. The rule is called the “MS4 General Permit Rule.” Since August 2003, when the MS4 General Permit Rule became effective, IDEM has issued hundreds of NPDES permits to municipalities. Overall, the Hoosier Chapter is pleased to see these long-unpermitted discharges come under the purview of the NPDES permitting program. Requiring municipalities to reduce the pollutants discharged to our waters is a major step. Unfortunately, the club believes that Indiana has violated the Clean Water Act. The club alleges three specific violations: The rule fails to establish limits for toxic pollutants as required by Indiana rules. Indiana failed to ensure that the discharges would not degrade downstream water quality as required by federal rules. The rule does not provide the public with an opportunity to comment. The club petitioned the Indiana Office of Environmental Adjudication to determine whether the Indiana Water Pollution Control Board (WPCB) acted in an arbitrary and capricious manner when it adopted the MS4 General Permit Rule. Club members Bruce and Kathy McCoy of Angola joined the petition. The McCoys had submitted comments on a permit application by the City of Angola and Tri-State University, but IDEM indicated that it was unable to consider the comments pursuant to Indiana’s MS4 General Permit Rule. The litigation is scheduled for a hearing in January. The club is asking that the Environmental Law Judge do the following: Rule that 327 IAC 15-13 is invalid. Direct IDEM to immediately establish standards or prohibitions for pollutants injurious to human health and require communities that received a permit comply with these standards. Direct the WPCB to adopt a statewide antidegradation policy applicable to all waters of Indiana. Direct IDEM to stop issuing permits for discharges until an antidegradation policy consistent with federal law is in place and effective. Direct the WPCB to ensure that the public has an opportunity to comment on permit applications as required by the Clean Water Act. Editor’s note: Tom Neltner is the attorney handling the case for the chapter and the McCoys on a pro bono basis. You can contact him at (317) 442-3973 or at neltner@ikecoalition.org. Copyright © 2007 Hoosier Chapter Sierra Club, all rights reserved.[11/18/05]efp

Fall 2005