PINES V. NIPSCO

NIPSCO has dumped more than a million tons of power plant waste, also known as coal combustion waste, laden with hazardous chemicals into an unlined landfill, known as Yard 520, in the Town of Pines, Ind. NIPSCO’s coal combustion waste was also used in the town’s roadways and as fill in low-lying areas. Predictably, hazardous chemicals including antimony, arsenic, barium, lead, cadmium, chromium, manganese, mercury, molybdenum, and thallium now leach from the landfill and roads into an aquifer that supplies the town’s residential wells used for drinking water.

Although the Indiana Department of Environmental Management (IDEM) knew the landfill had been leaking arsenic and other contaminants into creeks and groundwater since the 1980s, the agency refused to take action when residents complained that their water looked, smelled and tasted funny. Concerned for their health, the residents formed a citizen group, called People in Need of Environmental Safety (PINES). In June 2002, PINES took their case to the U.S. Environmental Protection Agency (EPA).

In 2004, EPA declared Yard 520 an “alternative superfund site” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This designation required NIPSCO and the owners of Yard 520 to provide some, but not all, homeowners in the town with bottled water or municipal water from nearby Michigan City.

The superfund designation also required NIPSCO to conduct a remedial investigation (RI) to determine the extent of contamination and risk to human health and environment, and a feasibility study (FS) to determine an appropriate remedial response.

To ensure impacted communities understand and can participate in the highly technical RI/FS decision-making process, CERCLA regulations require grant funding be made available to impacted communities so they can hire technical advisors. As EPA explains on its website, “Congress made public involvement in decision making an important part of the Superfund process when the program was established by CERCLA in 1980. Congress wanted to ensure that the people whose lives were affected by abandoned hazardous wastes would have a say in actions to clean them up. The role of community members in the Superfund process was further strengthened in the Superfund Amendments and Reauthorization Act of 1986 (SARA). With SARA, Congress created EPA’s [Technical Assistance Grant] TAG Program. TAGs are available at Superfund sites that are on the EPA’s National Priorities List (NPL) or proposed for listing on the NPL, and for which a response action has begun. EPA’s NPL is a list of the most hazardous waste sites nationwide. Since the first TAG was awarded in 1988, more than $20 million has been awarded directly to community groups.”

Because Yard 520 was an “alternative” superfund site and not listed on the NPL, NIPSCO was required to provide and administer funding for technical assistance to the PINES community through a Technical Assistance Plan (TAP). Unfortunately, the PINES TAP, drafted by NIPSCO and approved by EPA, limited PINES’ ability to fully participate in the RI/FS process as required by CERCLA. Under the flawed TAP agreement, NIPSCO refused to pay all eligible TAP costs, prohibited PINES from hiring an attorney to help them understand the Superfund process and imposed other limitations not imposed on communities that receive TAG funding from EPA.

Underscoring the importance of continued community involvement, PINES’ hydrogeology experts with Geo-Hydro, Inc. exposed several flaws in NIPSCO’s remedial investigation that were not considered by EPA. PINES’ consultants warned that basing any subsequent remedial response on this flawed data would render the response “ineffective at protecting human health and the environment.”

LEAF ACTION:
PINES sought LEAF’s help after NIPSCO and owners of Yard 520 refused to provide further TAP funding needed for PINES to continue receiving technical assistance from Geo-Hydro, Inc. LEAF first wrote to EPA to detail the legal basis for requiring NIPSCO to provide necessary funding and request EPA intervention.

When EPA refused, LEAF filed a 60-day Notice of Intent to Sue to enforce the applicable CERCLA regulations against EPA, NIPSCO and the owners of Yard 520. As a result, NIPSCO settled and agreed to provide $163,000 in funding so the PINES could continue to have its voice heard and an appropriate remedial response was determined.

NATIONAL ENVIRONMENTAL POLICY IMPLICATIONS:

The issue of coal ash disposal recently gained national attention due to the catastrophic collapse of the dam at the Tennessee Valley Authority’s Kingston plant. Like Kingston’s coal ash impoundment, NIPSCO’s Yard 520 landfill in the Town of Pines is one of hundreds of landfills, ponds and mines where coal ash is disposed of across the United States. A great number of these coal ash impoundments are over three decades old, are not designed, built or constructed by professional engineers, and are located in states, such as Indiana, with minimal or no regulation for protection of human health and the environment.

Due to the Kingston disaster, EPA is considering federal regulation for coal ash disposal under the Resource Conservation and Recovery Act (RCRA). If the rule is adopted under RCRA’s Subtitle C program, EPA will have primary enforcement authority. Conversely, RCRA’s Subtitle D would only allow EPA to develop suggested guidelines for coal ash disposal, leaving citizens without federally enforceable rules and permitting individual states to opt out of the guidelines.

The states that generate the overwhelming majority of the coal ash in the U.S. (approximately 80 percent of annual generation) urged EPA for regulation under Subtitle D. Those states, including Indiana, that already failed to protect their citizens from the dangers of coal ash would likely ignore newly promulgated EPA guidelines if given the choice granted by Subtitle D.

Accordingly, LEAF along with 165 organizations nationwide, signed on to comments sent to EPA stating that the only way to protect public health from toxic coal ash is under RCRA, Subtitle C.