INDIANA

• Dangerously high levels of nitrate pollution stemming from large-scale feedlots threaten portions of the state's drinking water supplies.
  
  
• Miscarriages near a hog farm have been linked to high levels of nitrate pollution in private wells.
  
  
• Indiana relies on unenforceable "guidance" letters to regulate factory feedlots.

According to the Indianapolis Star, animal feedlots were responsible for 2,391 spills of manure in Indiana in 1997.¹ The state water quality agency employs only nine staff persons to respond to emergency spills.² In 1996, emergency response staff were called on the scene when a confined feeding operator in Howard County caused a fish kill by dumping 9,600 gallons of hog manure on a cornfield that was just six feet from a culvert leading to a creek. The operator was charged only $374.46 for the fish kill, and no further enforcement action was taken.³

According to a report released in the Indianapolis Star, a number of prominent institutions and individuals have been cited for spills from lagoons of large feedlots. Purdue University, home of Indiana's Cooperative Extension Service, which advises farmers about agricultural practices, has been cited for two spills. The state cited former Senator Wayne Townsend for a number of spills, including a 1992 fish kill in Little Walnut Creek. According to the Star article, no enforcement action was taken after Townsend filed a written apology.⁴

Pollution problems

Of 6,451 river miles assessed, approximately 81 percent are unsafe for swimming or other human contact due to high levels of the bacteria E. coli.⁵ According to the Department of Environmental Management, one of the possible sources is agricultural feedlots.⁶

Many Indiana cities get their drinking water from rivers that flow through agricultural areas. DuBois County has more CAFOs than any other county, mostly poultry operations. E. coli levels in the county's Patoka River watershed are six times higher that the state standard. The Patoka River is the only water supply available for the city of Jasper. Indiana's Department of Environmental Management (DEM) is now undertaking a study of the watershed to identify sources of pollution, but says that results will not be used to take enforcement action against producers.⁷

The full extent of surface water pollution problems is unknown. Part of the problem is that DEM's fish kill records are disorganized and unreliable.⁸ For example, the DEM will only record a fish kill if the agency has staff available to investigate and the inspector arrives in time to see the fish kill (before it gets washed downstream). Many fish kills are attributed to unknown or natural causes.⁹

Groundwater contamination is also a problem. More than 60 percent of Indiana's population relies on groundwater for its drinking water supply, and nitrate levels in groundwater are dangerously high in some areas of the state.¹⁰ Purdue University has identified feedlots as a potential major contributor to nitrate contamination.¹¹

A case in point is the city of Delphi, located in Carroll County. The county leads the state in hog production. Delphi Mayor Sam Deiwert recently wrote to the Water Pollution Control Board that the city has been exploring for new wells since 1996.

"In the course of that exploration, only two sites were discovered that would yield the quantities of water needed... [and] both sites proved unacceptable," he wrote. "One had significant nitrate contamination and the second had significant bacterial contamination including E. coli. Contamination of both sites was attributed to regional agricultural activities."¹²

Much of northern Indiana's drinking water supply is vulnerable to pollution due to the presence of a sand and gravel outwash plain, a type of sensitive geology composed of sandy soils overlaying the aquifer.¹³ In 1993, the LaGrange County Health Department identified a cluster of women living near a hog operation who experienced miscarriages (always in the eighth week of pregnancy) after drinking water with high levels of nitrates from their private wells. Nitrates were as high as 19 to 26 mg/l, well above the federal drinking water maximum of 10 mg/l. The U.S. Centers for Disease Control in Atlanta, Georgia published this report in 1996.¹⁴

Regulatory Climate

Indiana does not issue permits to feedlots. Instead the program relies on letters of approval based upon a guidance document known as the Animal Waste 1 (AW1). The preamble to the AW1 indicates that the guidance is only a recommendation; thus the conditions specified in the approval letters are not mandatory.¹⁵ In response to a citizen's petition, the state is in the process of developing enforceable rules.¹⁶

Under the existing law, Indiana defines a CAFO as an operation with more than 300 cattle, 600 swine, or 30,000 poultry, and these operations are required to register for state approval. Operations that have a history of pollution problems are also labeled CAFOs and required to seek state approval.¹⁷ As a result of this approval program, the state has a record of the location of most confined feeding operations.

When an operator submits an application for approval to the DEM, the operator must notify "affected parties," who have 18 days to respond. "Affected parties" has been interpreted to mean adjoining landowners.¹⁸

The agency is supposed to issue approvals within 90 days, but the agency is struggling with a backlog of more than a hundred pending applications.¹⁹ Legislation passed in 1997 requires the agency to inspect the site before construction. The agency is currently using landfill inspectors and temporary help to eliminate the backlog.²⁰ The state has not routinely inspected animal feedlots during construction to insure that manure storage structures are built according to the design specifications.

The approval letters outline best management practices for the operation. However, the conditions specified in the approval letter are not enforceable. Citizens have tried to get the agency to deny approvals in cases where incorrect information was submitted in the application materials or where there is sensitive geology, but the agency has apparently never denied an approval.²¹

Citizens also tried to get the agency to revoke approval in a case where an operator was not meeting the conditions specified in the approval letter. But the state views approval conditions as unenforceable guidelines. An appeal was directed to the Office of Adjudication where an administrative law judge heard the case. The Office of Adjudication ruled against citizen appeals on the basis that the approval letters are not permits, are based on guidance only and are therefore optional.²²

Local Control

Because CAFOs are considered agricultural operations they are exempt from many controls. For example, farm building inspections are not required, and farm vehicles do not have to meet Department of Transportation load limits. There is little that can be done to prevent a CAFO from moving next door in areas zoned for agriculture.

Primary interviewee for this chapter:

Rae Schnapp
Hoosier Environmental Council
1002 East Washington Street, Suite 300
Indianapolis, IN 46202
Phone: 317-685-8800
Fax: 317-686-4794
email: hecindy@indy.net

Notes

1. Kyle Niederpruem, "Short Staffing Makes Policing Polluters Harder," Indianapolis Star (April 21, 1998).

2. Kyle Niederpruem, "Short Staffing Makes Policing Polluters Harder," Indianapolis Star (April 21, 1998).

3. Kyle Niederpruem, "Quick Response Leads Investigator to Spill," Indianapolis Star (April 21, 1998).

4. Kyle Niederpruem, "Pork Pollution: Spills That Kill," Indianapolis Star (April 19, 1998).

5. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95, p. 9.

6. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95, p. 8.

7. Kyle Niederpruem, "State Measuring Waste's Impact on Water Supply," Indianapolis Star (April 22, 1998).

8. Kyle Niederpruem, "Obstacle Course Awaits Those Seeking Livestock Farm Files," Indianapolis Star (April 19, 1998).

9. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95, pp. 19-23.

10. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95, p. 4; U.S. Geological Survey, Water Resources Division, Indianapolis, Press Release: "Study Summarizes Data on Nitrate in Indiana Group Water" (December 11, 1995).

11. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95 , Table 50, pp. 291-293.

12. Letter to the Water Pollution Control Board of Indiana Department of Environmental Management from Mayor Sam Deiwert, City of Delphi, Indiana (March 9, 1998).

13. Indiana Department of Environmental Management, Office of Water Management, Indiana 305(b) Report, 1994-95, p. 296.

14. Centers for Disease Control, "Spontaneous Abortions Possibly Related to Ingestion of Nitrate_Contaminated Well Water_LaGrange County, Indiana, 1991-1994," Morbidity and Mortality Weekly Report, Vol. 45, No. 26 (July 5, 1996).

15. Indiana Department of Environmental Management, Confined Feeding Program Technical Guidance AW-1, Nonrule Policy Document, Waste, 0024-NPD (December 31, 1997).

16. Petition to Governor Frank O'Bannon and Indiana General Assembly. Hoosier Environmental Council; Associated Press, "Confined Feeding Farms to Get State Regulations," The Journal Gazette (October 10, 1997).

17. Indiana Department of Environmental Management, Fact Sheet, "The Indiana Confined Feeding Control Law and Approval Program" (undated).

18. Indiana Department of Environmental Management, Fact Sheet, "Public Participation Steps for Confined Feeding Approvals" (December 1997).

19. Kyle Niederpruem, "Pork Pollution: Spills That Kill," Indianapolis Star (April 19, 1998).

20. Personal communication between Rae Schnapp, Hoosier Environmental Council, and Aaron Lauster, Compliance Section Inspector, Indiana Department of Environmental Management, Office of Solid and Hazardous Waste (September 9, 1998).

21. Personal communication between Rae Schnapp, Hoosier Environmental Council, and Dennis Lasiter, Confined Feeding Section Chief, Indiana Department of Environmental Management, Office of Solid and Hazardous Waste (September 25, 1998).

22. Motion for Summary Judgment before the Office of Environmental Adjudication, Cause No.97-W-J-1693, State of Indiana, County of Marion, In Re Matter of: Objections to the Issuance of Permit Approval No. 4245, Top Sow, LLC, Flora, Indiana (May 9, 1997). In this case, an administrative law judge granted DEM's motion for summary judgment against citizens who argued that a feedlot should be denied a permit because its water pollution control proposal was inadequate. The judge concluded DEM's approval was based on a document that is for guidance only and is not enforceable. On October 2, 1997, another administrative law judge, Kyle Endris, issued a final order vacating DEM's approval of the confined feeding operation. On October 31, 1997, DEM petitioned the State Attorney General for review of this decision. That review is still pending.