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A statewide environmental advocacy group is challenging an Indiana Office of Administrative Law Proceedings’ decision to uphold a water pollution permit that allowed the discharge of untreated wastewater into a portion of the White River near Martinsville.
The Hoosier Environmental Council announced Wednesday that it had filed a lawsuit last week in Morgan Circuit Court against the Indiana Office of Administrative Law Proceedings for upholding a 2023 permit issued by the Indiana Department of Environmental Management.
The permit allows the Eagle Valley Generating Station—an AES-owned power plant in Martinsville—to discharge untreated wastewater from its leaching coal ash waste ponds into a stretch of the West Fork of the White River, according to the council’s news release.
This section of the river is upstream of the City of Martinsville’s municipal wells, which provides the city’s drinking water.
“We are bringing this legal action to stop AES’s contamination of the White River since it wasn’t stopped by our state agencies,” Indra Frank, the council’s coal ash adviser, said in a news release. “We need our state agencies to step in and protect Indiana’s land, air, and water now more than ever since the ability of federal EPA to do so is being severely undermined.”
She said cuts to EPA’s authority include rollbacks of the federal coal ash rule and increasing reliance on the states to fix coal ash problems.
The Indiana Office of Administrative Law Proceedings did not immediately respond Wednesday to The Indiana Lawyer’s request for comment.
The environmental council stated it asked the state office to revoke the permit, alleging violations of federal and state clean water laws and the federal rule that governs the proper disposal of coal ash to protect human health and the environment from these exact types of toxic risks.
“Instead of revoking the permit, the OALP upheld IDEM’s unlawful permit, leaving a serious threat to both the environment and human health unchecked. Additionally, contrary to established Indiana law, the OALP ruled that HEC and its members, who live in Martinsville, lack standing to challenge the permit,” the council said in its new release.
In its lawsuit, the council alleges that by affirming IDEM’s permit, “the OALP ignored the law and evidence, disregarded procedural rules, and trampled on the rights of Hoosiers to obtain fair, impartial, and independent administrative review of IDEM’s decisions, which is the only legal recourse they have when those decisions adversely affect their interests.”
The council is asking the Morgan Circuit Court to reverse the state office’s ruling.
It is represented in the case by the Conservation Law Center, a public interest environmental law firm that also runs the Conservation Law Clinic at Indiana University Maurer School of Law.
“Indiana courts are no longer required to give deference to state agencies that abuse their administrative power at the expense of everyday Hoosiers as IDEM and the OALP did in this case,” said Christian Freitag, the law center’s executive director. “Last year, the Indiana legislature ended agency deference so that Indiana courts will provide a meaningful check on government agency decisions that affect the health and safety of Indiana citizens. We are asking the Morgan County Circuit Court to do that here.”
The case is Hoosier Environmental Council v. Indiana Department Environmental Management and Indianapolis Power & Light Company d/b/a AES Indiana-Eagle Valley Generating Station, 55C01-2503-RA-000691.
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