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Impaired waters listing disputed


  • Graphic courtesy of Environment America: Wasting our Waterways 2012

Indiana's top environmental agency and the federal government continue to battle it out over a proposed list of impaired waterways that local activists claim omits several rivers polluted by coal mines.

More than 70 percent of Indiana's 45,000 miles of waterways are considered impaired by the state, said Jody Arthur, the Integrated Report Coordinator for the Indiana Department of Environmental Management's Office of Water Quality.

Most of the impairments are due to E. coli and excessive amounts of PCBs and mercury in fish tissue. Because each state tallies their information differently, it's not known exactly how Indiana stacks up against other states when it comes to water pollution.

Each state is required to submit an updated inventory of impaired waterways to the U.S. Environmental Protection Agency every two years. IDEM is currently compiling its 2012 list, while still wrangling with the feds over the not-yet-approved 2010 register.

  • Graphic courtesy of IDEM

The two agencies continue to debate whether bodies of water with abnormal levels of aluminum and iron should be included in the list. Present in an earlier draft, they were later removed after lobbyists complained. Both the Indiana Coal Council and the Indiana Energy Association claimed the state didn't allow for public input when it added those criteria, thus violating procedure. IDEM's top attorney at the time, David R. Joest, agreed and those creeks and waterways were scrubbed from the list.

But Sierra Club Conservation Program Coordinator Bowden Quinn claims there's more to the story.

Peabody Energy's Bear Run mine is the largest surface coal-mining facility east of the Mississippi. Duke Energy's controversial Edwardsport Plant may use up to 2 million tons of Bear Run coal a year on its own, according to watchdog website SourceWatch.

That mine, along with nearly every other mine in Indiana, operates under a general state permit that is much less stringent — and ultimately less costly —- than an individual permit, which the federal government is demanding.

"Gov. Daniels wants to make Indiana coal as cheap as possible, so they're obviously not going to do anything that might make it even a little more expensive," Quinn says, adding he didn't know how big of an impact clean water regulations would have on the mine's bottom line.

When the coal companies objected to listing those waterways, there was little doubt they'd be removed, Quinn notes. Joest, the attorney who advised the state to reject the stricter metals criteria, was Peabody Energy's top lobbyist for years before joining IDEM inciting howls of protests from environmental activists. He's since moved on to Evansville-based law firm Rhine Ernest LLP where he specializes in coal, oil and gas law, real estate, commercial law and energy industry mergers and acquisitions.

EPA officials pointed out in 2010 that several bodies of water near Bear Run failed to meet water quality standards and needed extra pollution controls in place. But IDEM officials said the mines are not responsible for the contamination.

"None of the waterways' (pollution) can be attributed to a specific point source," Arthur said.

It's not known for sure what, if any, health risks the increased levels of aluminum and iron in water pose to humans. Scientists have found links between high concentrations of aluminum in the brain to diseases affecting the nervous system, including Parkinson's, Alzheimer's and Lou Gehrig's disease.

EPA Spokesman Pete Cassell was fairly tight-lipped about the negotiations, refusing to comment on reports his agency and IDEM disagree over the list as it currently stands. But both he and Arthur agreed the EPA has the authority to approve all or part of the list, as well as reinsert the disputed waterways. It's expected the feds will do just that and then open the list up to yet another round of public comment. After 30 days, assuming no changes are made, the list would become final and be presented to the state water pollution board.

If that happened, Arthur refused to say if the state would include those disputed waterways in its 2012 list.

"I don't know how we'll respond until the EPA moves forward," Arthur said.


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