The Toxic Career of Indiana’s Environmental Commissioner

Indiana’s “Dump Easterly” movement may not be a formal organization, but a growing number of Hoosiers throughout the state are agitating for a change at the Indiana Department of Environmental Management (IDEM).
Participants at the July 28 Hoosier Environmental Council Northwest Region Community Forum in Chesterton passed a resolution calling on the HEC board of directors to demand the resignation of IDEM’s commissioner, Thomas Easterly, “so that IDEM can resume its mission of environmental stewardship for the state of Indiana.”

Indiana made national news after IDEM granted a National Pollutant Discharge Elimination System (NPDES) permit to BP’s Whiting refinery that would allow the plant to discharge 1,584 pounds of ammonia and 4,925 pounds of suspended solids daily into Lake Michigan. The reported that the permit also allows BP to continue adding 2 pounds of the potent neurotoxin mercury to Lake Michigan until 2012.

The U.S. House of Representatives passed a bipartisan resolution, 387-26, to condemn the widely criticized permit. Easterly and his boss, Gov. Mitch Daniels, assert that the permit is within federal and state guidelines and will not be rescinded. Meanwhile, in response to public outcry, including a threatened boycott, BP has voluntarily agreed to halt implementation of its permit until Sept. 1, while it examines “feasible alternatives.”

BP, the London-based multinational oil and energy conglomerate formerly known as British Petroleum, plans a $3.8 billion expansion of its 117-year-old refinery on the shores of Lake Michigan in order to process heavier Canadian crude oil from tar sand. Easterly maintains IDEM granted the permit because BP could create up to 80 permanent jobs and nearly 2,000 construction jobs.

Many Hoosiers say it’s the most recent example of how IDEM puts the financial health and well-being of polluters ahead of the public interest, and that it’s time for Easterly to go.

“I think it’s clear that Thomas Easterly is promoting the agency’s agenda of economic development at the expense of the environment,” said Carolyn Marsh, of Whiting, who helped draft the language of the HEC resolution. “That’s an abrogation of his responsibility to the public.”

Marsh said the Clean Water Act makes it clear that no additional pollution be added to the nation’s waterways. “It is a colossal environmental catastrophe in the making,” she said. “They’re creating a dead zone up here.”

BP claims there is insufficient space to increase the size of its wastewater treatment facility, and so it requested permission to mix the pollutants with clean lake water 200 feet offshore. “If there’s no room for it, why is IDEM permitting it?” Marsh asked.

Marsh questioned the economic development rationale, citing a City of Whiting statement about the BP plant that reads in part, “[T]he City’s immediate benefit is minimal (the portion of the expansion in Whiting will be virtually all property tax-exempt …).”

“Anybody looking at what industry has planned for the next decade for this area will come to the conclusion there won’t be any clean air, clean water or green space left,” Marsh said.

The public as the enemy

While the BP permit fiasco has catalyzed calls for Easterly’s ouster, outrage over the IDEM chief’s pro-business, anti-public health positions has been steadily increasing since he assumed his duties in January 2005.

John Blair, president of the environmental protection group Valley Watch, has been battling pollution in southwest Indiana for three decades. “Gov. Daniels and Thomas Easterly are doggedly pursuing an agenda of neither environmental protection nor environmental management,” Blair said recently from his Evansville office.

“It’s real clear to me that IDEM has undergone numerous attitudinal changes under Daniels and Easterly,” he said. “Decisions seem to be made that clearly ignore the will of the public and the spirit of environmental protection.”
Blair met with Easterly and Assistant Commissioner Scott Nally early in 2005. “I asked Scott what he saw in his crystal ball for the future and he said ‘CAFOs and power plants,’” Blair said, calling the response “morbidly honest.”

“Time and again Easterly says that IDEM is an economic development tool for the state,” Blair noted. And while IDEM was founded on the notion that a healthy economy is compatible with a healthy environment, Blair takes issue with claims that power plants fit the concept. “Power plants are the antithesis of economic development. For IDEM to have that as an agenda is plain flat wrong!”

That didn’t stop Easterly in 2005 from promoting the Tondu coal gasification power plant proposed for Carlisle, in northern Indiana. Easterly testified in support of the project, which was withdrawn due to widespread public opposition.

Blair noted that Easterly also testified to IDEM’s Air Pollution Control Board last October in opposition to a proposal by the Hoosier Environmental Council to require coal-fired power plants to adopt technology that would reduce mercury pollution by 90 percent. “HEC’s petition wasn’t ever really on the table. It was whatever industry said they were going to do,” Blair said, adding, “We have a situation where it doesn’t matter what people think or how much evidence they have to the contrary. Industry gets its way.”

Blair charges IDEM with seeking ways to avoid enforcing regulations and to allow firms to modify permits rather than apply for new ones, which might require public hearings.

“The Indiana-Kentucky Electric Corporation told IDEM they wanted to change from a Class 1 permit to a Class 3 permit for handling waste at its Clifty Creek power plant. IDEM encouraged them instead to modify their Class 1 permit rather than apply for a new permit,” he said.

Blair also faults IDEM for allowing Consolidated Grain and Barge’s Mount Vernon plant to modify its permit to allow the firm to use tires and pallets for fuel. “This encouragement to go to waste tires really concerns me because it takes a minimalist approach to air quality,” he said.

“We know that most tires contain some amount of chlorine and that when burned, chlorine in the presence of hydrocarbons creates both dioxin and furan, which are persistent organic pollutants,” Blair said. “Burning tires also creates a large stream of carbon monoxide waste that should not be allowed to escape into the atmosphere to injure humans downwind.”

He added bitterly that IDEM approved Consolidated Grain and Barge’s request without requiring any pollution controls or safe disposal of the toxic ash.

Easterly’s interest in waste tires was highlighted late last year when, in an unprecedented move, IDEM sought to alter the definition of what constitutes recycling by including incineration — specifically waste-to-energy projects that utilized waste tires. Although a legislative initiative in the Indiana General Assembly failed, IDEM continues to study the possibilities.

“I’ve come to the conclusion that Easterly sees the public as an enemy instead of a stakeholder,” Blair said. “The only stakeholders he sees are the people who want to pollute and are seeking permission to do so.”

All CAFOs all the time

Gov. Daniels’ economic development plan for the state includes doubling pork production; a project Easterly has embraced by resisting increased regulation of Concentrated Animal Feeding Operations (CAFOs).

“Most people assume that the head of IDEM would think his job is to protect the environment,” said Bill Hayden, who chairs the executive committee of the Indiana Chapter of the Sierra Club. “But he thinks his job is to do economic development.”

Glenn Pratt, vice chair of the chapter’s executive committee, thinks that it’s improper for the commissioner of IDEM to lobby for factory farming. “He’s supposed to be a nonpartisan, impartial judge, but he’s going out and promoting them,” Pratt said.

Last year, the Indiana Chapter released a report, about IDEM’s Water Pollution Control Board’s suspension of NPDES permit compliance deadlines for three years.

At the time, Shondra Zaborowski, chair of the club’s conservation committee, told that the Board’s suspension of the permit compliance deadlines occurred at a critical stage as nearly 300 Indiana CAFOs with NPDES permits were in the process of establishing and implementing Soil Conservation Practice Plans (SCPP).

“SCPPs are grounded on sound agricultural practices generally recognized as prudent and practical,” Zaborowski said. “‘Promises Broken’ states: ‘An SCPP consists of five mandatory and three optional elements that include a map of the soil where manure would be applied, a description of the soil, the slope of land at application sites, identification of practices to reduce erosion and control runoff, and identification of methods to minimize nutrient leaching.’

The suspension came at a time when CAFOs were beginning to implement Soil Conservation Practice Plans (SCPP) detailing where manure would be applied, descriptions of the soil, slope of the land, strategies to reduce erosion and techniques to minimize nutrient leaching.”

Easterly and other CAFO proponents claim CAFOs are highly regulated, but the suspension of the compliance deadlines leads people like Bob Hedges to question IDEM’s commitment to water quality.

A retired Fort Wayne banker, Hedges moved with his wife to LaGrange County, hoping to spend his golden years in the home they built on one of the county’s many lakes. When a CAFO was proposed for a neighboring farm, he got involved with Hoosiers for Sustainable Agriculture and now serves as the group’s president.

“Our group isn’t just opposing CAFOs but is also promoting healthy alternatives, ” Hedges said. “With all the recent incidents of food contamination, people are looking to organic foods they can buy locally. Our group wants to support and identify those folks in our county who use organic and sustainable traditional agricultural practices,” he said.

He noted that the Great American Prairie begins in LaGrange County and that it is dotted with wetlands, lakes, fens and major wildlife habitats such as the Pigeon River Fish and Wildlife Area. “Our concern about CAFOs is about groundwater pollution,” Hedges said. He added that LaGrange County is like a large sand dune. “It has light soil — it’s called a recharge area — so water doesn’t run off, it runs down into the ground.”

In other counties, hydrologists measure water flows in inches per hour. In LaGrange County, Hedges said, it’s measured in feet per hour. “Somebody wanted to put a CAFO right in the middle of an area that runs right into the aquifer that’s the source of our drinking water.”

Another proposed CAFO was situated 500 feet from the largest wetland in the area and backs up to the Pigeon River Fish and Wildlife Area. Hedges said his group submitted scientific data to IDEM to back up their concerns about groundwater pollution but were ignored.

“They used to have public hearings but they couldn’t control those, so now they call them public information meetings,” Hedges said. “You can’t speak and you have to submit your questions in advance. They enforce a time limit and answer whatever they can in that time limit.”

Hedges said his group had 30 specific questions relating to hydrology for IDEM. “They have a hydrologist on staff but when they got to the hydrology questions, they said, ‘He’s not here, we’ll answer them later.” Hedges said the group received the hydrologist’s responses after the permit was issued.

One CAFO applicant used a “fictitious entity” — a company not registered with the Secretary of State to do business in Indiana — when filling out IDEM’s permit form. Asked what a bank would think if an applicant for a loan attempted such a stunt, Hedges replied, “We would think they were a crook.”

He said Hoosiers for Sustainable Agriculture is disgusted with IDEM and has sent the department a notice of intent to sue to strip the agency of its authority to enforce the Clean Waters Act. “We don’t think they do anything, so since IDEM doesn’t regulate CAFOs, it’s up to the citizens to do it themselves.”

Public hearings: window dressing

Sharon Carnes and her Michigan City neighbors have tried to convince IDEM to deny a permit for a proposed garbage transfer station that would be a half-mile away from Mount Baldy on the Indiana Dunes National Lakeshore — one of the most environmentally significant landscapes in the world.

A garbage transfer station is a place where trucks like the ones used for curbside pickup in cities dump their contents into an area for compaction. The compacted trash is then reloaded onto semitractor trailers for over-the-road hauling to another site.

Carnes said the county road to the proposed site had been once been considered as an alternative entrance to the Indiana Dunes National Park but the project was shelved when an impact study declared the route to be an environmentally sensitive area.

Nevertheless, the permit applicant cited that county road as the access road for the garbage transfer station, and IDEM held a public hearing. “We gave a PowerPoint presentation showing evidence why this is not a good site,” Carnes said. She and her neighbors thought they had made compelling arguments. IDEM granted the permit.

“The community was outraged,” Carnes said, noting that 300 people had shown up on a weeknight to testify against it. “They felt ripped off. The whole process seemed designed to give the illusion of public input but IDEM disregarded every one of our arguments.”

Taking their arguments to IDEM’s Office of Environmental Adjudication (OEA) proved futile as well. “It’s strange,” Carnes said. “One of IDEM’s rules states that the applicant has to show access, and we pointed out that the applicant didn’t have a valid driveway permit.”

She said IDEM replied, in essence, that they can’t check everything. “But we gave testimony at the hearing,” Carnes said.

She quoted from the OEA’s judgment: “Public policy is not served by requiring IDEM to review every issued permit prior to receiving notice that a facility intends to commence operation.”

“Public hearings are all window dressing,” Carnes said. She says IDEM’s quality initiatives still include improving issuance of permits. “They want to make it easier for business to work through the permitting process, but what about protecting the environment?”

Reluctant enforcer

IDEM’s Easterly told the State Chamber of Commerce in early 2005 that he wanted to increase Hoosiers’ personal income by providing assistance first, enforcement second. He added that he wanted to have timely resolution of enforcement actions.

But a recent investigation by Dan Stockman of the found that IDEM’s Voluntary Remediation Program is “… allowing polluters to avoid responsibility, delaying cleanup and keeping neighbors in the dark about contamination.”

Deadlines are ignored or extended, the story says. “There are no consequences and no enforcement even when deadlines are blown by months or even years.”

In an investigation this spring, the found that BP was fined $8,750 after a spill of 1,000 gallons of untreated wastewater at the Whiting plant in November 2006. IDEM could have levied fines up to $75,000 a day.

This action confirms research by the Environmental Integrity Project (EIP), a nonpartisan, nonprofit group founded by former U.S. Environmental Protection Agency enforcement attorneys. EIP issued a in March that suggests IDEM is letting polluters off the hook by collecting fees 30 percent below the minimum level of fines set by the Clean Air Act.

EIP Project Director Eric Schaeffer said, “States are shortchanging either the public health or the pockets of taxpayers by setting emission fees that are too low to cover the cost of Clean Air Act enforcement programs.”

Indianapolis Business Journal reporter Chris O’Malley wrote in a March 27, 2006, story that the $2.03 million in fines IDEM issued in 2005 was the lowest annual assessment since at least 1999.

Time to go

Thomas Easterly’s assertion that a strong economy means better environmental protection doesn’t hold up to scrutiny.

Another recent Environmental Integrity Project report found that Indiana’s coal-fired power plants are among the dirtiest in the country, threatening not only the health of Hoosiers but of our neighbors in other states as well.

John Blair points out that not only power plants are dirty. “AK Steel in Rockport (Spencer County) puts out more toxic pollutants from one plant than from all the industries in Cook County, Illinois, Orange County, California and Los Angeles County, California combined,” he said.

Blair noted that Indiana’s Spencer County has 20,526 residents while Los Angeles and Orange counties and Cook County have a combined total of more than 18 million residents. “Based on 2004 figures, that one Indiana plant emits more than 20 million pounds of toxic chemicals. It’s mind-boggling,” he said.

“It’s no wonder we’re sick down here,” he continued. “We’re being inundated with toxic chemicals and IDEM wants to measure chemicals 40 feet in the air instead of on the ground. Their monitoring proposal doesn’t reflect what we’re breathing.”

Blair said Easterly has to go. Even though Blair believes the fault lies with the governor, he things getting rid of Easterly would be worth it. “It would show the next person that there may be a price to pay.”

Carolyn Marsh is more blunt. “Daniels can fire him or he can resign,” Marsh said. “The point is we have to stand up and say, ‘The man has to go!’”

THOMAS P. HEALY is a journalist in Indianapolis. He can be reached at