Indiana Law Review The Indiana Environmental Protection Agencies: A Survey and Critique Since the inception of the environmental movement in the late 1960's, environmental law has undergone an expansion roughly paralleling the expansion of labor law in the 1930's. The resulting legislative explosion has reached all levels of government— federal, state, and local — giving rise to concurrent and sometimes conflicting regulation. The advent of the Environmental Protection Agency (EPA) and its various enabling statutes^ provided the states with regulatory models for their own environmental protection efforts. However, the concept of an efficient nationwide pollution abatement program demanded a maximization of state-federal cooperation. The most favorable alternative lay in persuading the individual states to in- itiate their own enforcement programs under federal guidelines without offending the bounds of the tenth amendment.' This goal became a reality under the strategies of the Clean Air Act Amendments of 1970' and the Federal Water Pollution Control Act Amendments of 1972,* which authorized the EPA to set pollu- tion limitations sufficient to protect the public health and welfare' and to establish a federal environmental enforcement or permit system in each state pursuant to those standards.' Each state was encouraged to draft a state regulatory scheme which would uphold the federal standards, taking into account special state problem areas.'' Upon the EPA's approval of this state implementation plan,' the state's pollution abatement system would operate in lieu of the federal program, but would remain partially funded by the EPA.' Tor a brief history of recent federal environmental legislation, see 1 A. Reitze, Environmental Law three-27, -30 to -32, four-34 to -35 (2d ed. 1972). *U.S. Const, amend. X. •42 U.S.C. §§ 1857a-1858 (1970). The Clean Air Act, which was formerly classified to 42 U.S.C. §§ 1957-1858, has been transferred and will now be classified to 42 U.S.C. §§ 7401 et seq., pursuant to the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. All citations appearing herein to the Clean Air Act as amended prior to 1977, however, will be to the former classification. *33 U.S.C. §§ 1251-1376 (Supp. V 1975). »33 U.S.C. § 1314(a) (Supp. V 1975); 42 U.S.C. § 1857c-4 (1970). •33 U.S.C. § 1342(a) (Supp. V 1975); 42 U.S.C. § 1857c-8 (1970). ^33 U.S.C. § 1313(eK2) (Supp. V 1975); 42 U.S.C. § 1857c-5(aKl) (1970). For the in- terpretive EPA guidelines, see 40 C.F.R. §§ 50.1.11, 124.1.94 (1976). •33 U.S.C. § 1313(eK3) (Supp. V 1975); 42 U.S.C. § 1857c-5(aK2) (1970). •"[Although approval of a state permit program is often referred to as a 'delega- tion' of the federal program to the states, an approved state progam operates under state statutes and the federal program is merely 'suspended' in that state." Robie, The 956 INDIANA LAWREVIEW [Vol. 10:955 The states' reliance on federal pollution control models and guidelines has fostered similarities in terminology and enforcement methods between the federal and state environmental protection agencies; a similar relationship exists between the state and local environmental protection agencies. This Note will familiarize the Indiana attorney with the organization, statutory requirements, and regulations of the Indiana environmental protection agencies, as well as their ties to the En- vironmental Division of the Attorney General's office and the local environmental protection agencies. Each state agency will be ex- amined in light of the impact of the EPA's policies and federal en- vironmental protection legislation. The reader should be especially alert to the following problems in Indiana environmental practice: overlapping jurisdictions, areas of agency ineffectiveness, statutory biases, expected regulatory changes, and prosecutorial weaknesses. These issues permeate the field of environmental protection at every level of enforcement. I. The Indiana Environmental Protection Agencies The responsibility for environmental protection at the state level is divided between the Indiana Department of Natural Resources, the Indiana Attorney General's Environmental Division, and the Environmental Management Board of the Indiana State Board of Health. The Attorney General's Office handles the court- room phase of the enforcement effort, while the day-to-day respon- sibilities of pollution control are vested primarily in the En- vironmental Management Board. The Board exercises jurisdiction over waters and wildlife areas concurrently with the Department of Natural Resources. A. The Environmental Management Board The Indiana Environmental Management Act" vests the eleven- member Environmental Management Board (EMB)" with full respon- Federal Water Pollution Control Act and the States: Love in Bloom or Marriage on the Rocks, 7 Nat. Resources Law. 231, 233 n.9 (1974). For the most part, the Indiana agencies have assumed full enforcement responsibility from the EPA, pursuant to the state statutes, and receive approximately equal federal and state funding. Interview with Mark S. Maxwell, Attorney for the Indiana Air Pollution Control Board, in In- dianapolis (Jan. 27, 1977). ^•IND. Code §§ 13-7-1-1 to 13-7-18-1 (Burns 1973 & Supp. 1976). "The Environmental Management Board (EMB) includes five ex officio members: the Secretary of the State Board of Health, the Director of the Department of Natural Resources, the respective chairmen of the Air Pollution and Stream Pollution Control Divisions, and the Director of the Division of Planning for the state. The six remaining 1977] INDIANA ENVIRONMENTAL AGENCIES 957 sibility to develop and update a long-term plan which will "ensure . . . the best possible air, water and land quality" for the state, to promulgate standards and regulations consistently with its long- range goals, to supervise the surveillance of all pollution sources, and to assist local governmental units in developing the programs and facilities needed to reduce the environmental pollution generated within their jurisdictions.*^ The EMB's statutory scope also embraces the power to grant permits for the installation, con- struction, or modification of equipment relating to air or water pollution, garbage or refuse disposal, and atomic or noise radiation.*' The EMB superintends the activities of the Air Pollution Control Board and the Stream Pollution Control Board. These two divisions of the EMB now exercise many of the enforcement powers formerly exercised by the federal EPA subsequent to the EPA's approval of the Indiana State Implementation Plan.** In reality, the two boards grant and enforce Indiana's air, water, and solid waste permits, rely- ing on the EMB only in its advisory and liaison capacity with the State Board of Health, the parent agency." 1. The Air Pollution Control Board a. The Statutory Requirements The Indiana Air Pollution Control Act directs the Air Pollution Control Board (APCB)*" to "safeguard the air resource through the prevention, abatement and control of air pollution by all practical and economically feasible methods."*^ However, the Act distributes members, two of which must represent the public at large, are appointed by the Governor for four-year terms. Representatives of municipal government, agriculture, labor, and industrial management are each entitled to one board position. Ind. Code §§ 13-7-2-2 to -3 (Burns 1973). The Assistant State Health Commissioner serves as the EMB Technical Secretary, id. § 13-7-2-2, and is responsible for administering the Board's operations, recording all EMB proceedings, coordinating the divisional activities, drafting the Governor's annual EMB report, id. § 13-7-2-6, and preparing the proposed budget for the EMB and its divisions, id. § 13-7-2-7. In short, the Technical Secretary directs the day-to-day operations of the various state environmental protection agencies. "/d § 13-7-3-1 (Burns Supp. 1976). Other EMB divisions include Sanitary Engineering, Radiological Health, and Industrial Health. Interview with Robert G. Grant, Attorney for the Indiana Stream Pollution Control Board, in Indianapolis (Nov. 18, 1976). »»IND. Code § 13-7-10-1 (Burns 1973). ^*See note 9 supra and accompanying text. "Interview with Robert G. Grant, supra note 12. "Ind. Code §§ 13-1-1-1 to -10 (Burns 1973). "Id. § 13-1-1-1. For definitions of "air pollution" and "air contaminant," see id. § 13-l-l-2(c) to (d). 958 INDIANA LAWREVIEW [Vol. 10:955 the necessary powers and duties between the APCB and its parent agency, the Indiana State Board of Health. The latter agency is em- powered to interact with state, local, and federal units of govern- ment; administer budgetary expenditures to the APCB and local units of government; and generally encourage cooperation between the parties involved in the overall enforcement effort/* The APCB is vested with the power to investigate violations, hold hearings, enter orders, and promulgate "regulations consistent with the general in- tent and purposes of [the Indiana Air Pollution Control Act]."" In formulating such orders and the determinations therein, the Board must engage in a nuisance-type balancing process,^" consider- ing: (a) The character and degree of injury to, or interference with, comfort, safety, health, or the reasonable use and en- joyment of property; (b) The social and economic value of the activity causing the emissions; and (c) The practicability, both scientific and economic, of reducing or eliminating the emissions resulting from such activity." "M § 13-1-1-4(B). "/d (A). The directives of the APCB are carried out by the Air Pollution Control Division (APCD), which is divided into four major branches: standards and planning, monitoring, program support, and enforcement. The Monitoring Branch includes am- bient and emissions sampling, quality assurance, and the laboratory. The Program Sup- port Branch encompasses staff services, computer and data management, and local agency coordination. The Enforcement Branch is comprised of sections on compliance tracking, surveillance and investigations, and permits. Two other branches, ad- ministrative and legal, are directly under the supervision of the APCB's director. In- terview with Mark S. Maxwell, Attorney for the Indiana Air Pollution Control Board, in Indianapolis (Nov. 23, 1976). All regulations, permits, variances, final orders, and related actions of the APCD must be approved by its governing body, the seven-member APCB. IND. Code § 13-1-1-4 (Burns 1973). The Indiana Secretary of State is an ex officio member of the Board and the Governor appoints the remaining six members. These appointments must include a doctor, an engineer, and representatives from agriculture, industry, municipal government, and the general public. The Governor may remove any member for cause. Id. § 13-1-1-3. However, the Clean Air Act Amendments of 1977 require this section to be amended to include in the APCB "a majority of members who represent the public interest and do not derive any significant portion of their income from per- sons subject to permits or enforcement orders under this Act." Pub. L. No. 95-95, § 128, 91 Stat. 685 (1977) (to be codified at 42 U.S.C. § 7428). ''E.g., Boomer v. Atlantic Cement Co., 26 N.Y.2d 219. 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970); Northern Ind. Pub. Serv. Co. v. W. J. & M. S. Vesey, 210 Ind. 338, 200 N.E. 620 (1936). The Indiana Air Pollution Control Act also declares that "[tjhe discharge into the outdoor atmosphere of air contaminants so as to cause air pollution and create a public nuisance is contrary to the public policy of the state of In- diana and the provisions of this act." Ind. Code § 13-1-1-7 (Burns 1973). "Ind. Code § 13-l-l-4(A)(2)(a) to (c) (Burns 1973). I 1977] INDIANA ENVIRONMENTAL AGENCIES 959 This statutory orientation toward nuisance theory is compatible with the stated purpose of the Act: "to maintain the purity of the air resource of the state, which shall be consistent with protection of the public health and welfare and the public enjoyment thereof, physical property and other resources, flora and fauna, maximum employment and full industrial development of the state."" The above wording raises doubts as to whether the Indiana legislature sought only to "maintain" the current air quality at a level sufficient to prevent harm to persons and property or whether it sought to generally improve the state's air quality to a point of undefined purity.^ However, the Act's nuisance approach is more consistent with the former interpretation. In balancing the above interests, the APCB must consider the economic well-being of the state in estab- lishing pollution abatement programs by limiting pollution control methods to those which are "practical and economically feasible."^* The agency's promulgation power is further confined to those "codes, rules and regulations" which are "clearly premised upon scientific knowledge of causes as well as of effects."^** In addition to these literal state statutory directives, the APCB looks to the federal Clean Air Act Amendments of 1970 and the EPA guidelines implementing the Amendments for considerable guidance. This federal input reduces the influence of economic and technological considerations on the formulation of state enforcement measures and brings the APCB's enforcement more into line with the policies of the Amendments and Congressional intent than it would have been under state law alone.^ The Clean Air Act Amend- ments of 1970 compel the EPA to consider only the listed factors in section 110(a)(2KA) through (H)," implicitly excluding economic and technological considerations from the EPA's review of a state im- plementation plan for approval.** This exclusion also enters into EPA's formulation of federal enforcement measures where the state implementation plan or the state enforcement has been ineffective in meeting the federal standards. "/d § 13-1-1-1. "Based on id § 13-1-1-4(A)(2), the Newton Circuit Court recently set aside an APCB enforcement order against an open burning violation because of the Board's failure to base the required findings of fact on substantial evidence. Karlock v. Indiana Pollution Control Bd., No. C76-87 (Ind., Newton Cir. Ct. Feb. 17, 1977). "IND. Code § 13-1-1-1 (Burns 1973). "Id. "Interview with Mark S. Maxwell, Attorney for the Indiana Air Pollution Control Board, in Indianapolis (June 16, 1977). "42 U.S.C. § 1857c-5(a)(2KA) to (H) (1970). "Union Elec. Co. v. EPA, 427 U.S. 246, 257 (1976). 960 INDIANA LAWREVIEW [Vol. 10:955 Thus, although the EPA is precluded from unevenly distributing the burden of pollution abatement on the basis of economic cost and technological feasibility, the APCB is obliged to consider economics and technology in formulating its regulatory measures,^ giving rise to special interest provisions and exemptions. This state flexibility continues to provide great incentives to the states to obtain EPA approval of their state implementation plans, so as to eliminate federal enforcement.*^ b. The Regulatory Scheme Although initially promulgated by the APCB, the current regula- tions effectuating the directives of the Indiana Air Pollution Control Act were in part shaped by EPA's disapproval and suggested revi- sion of certain provisions" according to EPA guidelines.'^ These regulations allow the APCB to alleviate the pollution abatement burden on certain pollution sources, while imposing more stringent standards on sources more able to comply with the requisite stand- ards. For example, sources discharging smoke-like emissions may fall within the purview of several APCB regulations or their excep- tions. Open burning is prohibited, but backyard incineration, recrea- tional campfires, agricultural open burning, and incineration to dispose of explosives are expressly exempted from the regulation's scope.** The enforcement of this regulation depends principally on local citizens' reports and is seemingly proportional to the outrage of the community.** Smoke may also violate the visible emissions standard, which limits the opaqueness of all air emissions, making it "the most powerful regulation on the books, because it is so easy to use."** The APCB merely presents the opaqueness observations of its trained "smoke readers" as prima facie evidence of a violation; industry must then assume the burden of proof to refute the agency's evidence by means of its own monitoring results.** Some smoke may contain "particulate emissions" large enough to be affected by **Compare 42 U.S.C. § 1857c-5(a)(2) (1970) with Ind. Code § 13-1-1-1 (Burns 1973). "Interview with Mark S. Maxwell, supra note 26. "See 40 Fed. Reg. 50,032 (1975); 41 Fed. Reg. 7450; 18,654; 32,304; 35,676 (1976). Tor EPA guidelines on the states' preparation, adoption, and submittal of state implementation plans, see 40 C.F.R. §§ 52.01.23 (1976). "In emergency circumstances, any permit applicant may apply to APCB for a special exemption. Ind. Admin. Rules & Reg. § (13-1-1-4)1 (Burns 1976). "Mannweiler, All Fired Up About Smoke, The Indianapolis News, Nov. 17, 1976, at 11, col. 1. "Williams, Indiana Air and Water Laws, in Fifth Annual Environmental Sym- posium, Central Indiana Technical Societies 21, 22 (1976). "Ind. Admin. Rules & Reg. § (13-l-l-4)-2 (Burns 1976). The regulation allows a maximum fifteen minutes of noncompliance per day per source, but this provision will 1977] INDIANA ENVIRONMENTAL AGENCIES 961 gravity. Each source's particulate emission limitation, measured in pounds emitted per hour, is proportional to its production capacity, as computed by its combustion capacity^^ or its process weight rate.^ Major stationary pollution sources must continuously monitor their emissions and forward the results to the APCB, to be sup plemented by APCB spot checks and stack tests."' In the state im- plementation plan, pursuant to federal guidelines,*" APCB states that all stationary sources*^ will be inspected on a routine and periodic basis by the staff. "The purpose of the inspections shall be to insure compliance with the air pollution regulations, check on maintenance of air pollution control equipment, verification of com- pliance with permit conditions, and to forestall the development of air pollution problems."*^ These routine APCB inspections supple- ment the self-monitoring data required of major point sources" and the regional samples jointly collected by the APCB and the EPA." In order to escape detection, a point source violating its permit would have to avoid the scrutiny of this three-pronged inspection routine. Excessive particulate matter which escapes beyond the property on which the source is located may violate the APCB regulation on "fugitive dust."" Those dust particles that are within a specified diameter range possess the potential for causing respiratory damage** and are subject to the strictest regulation. However, the soon be stricken to comply with EPA directives. Another provision in the regulation causing EPA concern allows no greater than 60% opaqueness for a stated period when lighting or cleaning a boiler. If a malfunction occurs, the source must remain within 90% compliance in order to continue operating. See Williams, Indiana Air and Water Laws, supra note 35, at 24. "IND. Admin. Rules & Reg. §§ (13-l-l-4)-3, -6 (Burns 1976). "Id. § (lS-1-l-iH, -5. "/d. § (13-M-4)-23. ^''Indiana Air Pollution Control Board, Draft— State Implementation Plan — Rewrite §§ 6, 10-2 (October 1975) (unpublished plan available at Indiana State Board of Health, Air Pollution Control Board, 1330 W. Michigan St., Indianapolis, Ind. 46206), follows the federal mandate of 42 U.S.C. § 1857c-5(a)(2)(C), (F) (1970). "A stationary source is "any machine, device, apparatus, equipment, installation, building, or other physical facility which emits or has the potential to emit any air con- taminant." Ind. Admin. Rules & Reg. § (13-7-10-l)-21(a) (Burns 1976). "Indiana Air Pollution Control Board, Draft- State Implementation Plan — Rewrite § 10-2, supra note 40. "A point source is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, con- tainer, rolling stock, or vessel or other floating craft from which pollutants are or may be discharged." Ind. Admin. Rules & Reg. § (13-7-10-l)-l(a)(23) (Burns 1976). ^Indiana Air Pollution Control Board, Draft— State Implementation Plan — Rewrite §§ 6, 10-2, supra note 40. "Ind. Admin. Rules & Reg. § (13-l-l-4)-30 (Burns 1976). "/d. § (13-l-l-4)-30(l)(b). 962 INDIANA LAWREVIEW [Vol. 10:955 regulation expressly exempts most steam discharges, dust from some unpaved roads, as well as construction and agricultural opera- tions where every reasonable precaution has been taken, violations caused by adverse weather conditions, and adequately dispersed visible emissions which comply with all other regulations.*' The Clean Air Act Amendments of 1970 stipulate that reduc- tions in the atmospheric concentrations of certain pollutants are necessary to protect the public health and welfare. Every approved state implementation plan must include the regulatory means with which to attain and maintain the acceptable atmospheric concentra- tions,** known as ambient air quality standards." The 1970 Amend- ments required compliance by the end of 1975 with the less str- ingent primary ambient air quality standards, which are intended to protect the public health;^ the stricter secondary ambient air quali- ty standards, which are designed to protect public welfare, must be attained within a "reasonable" time period." The designated am- bient air quality pollutants — sulfur dioxide, suspended particulate matter, carbon monoxide, photochemical oxidants, hydrocarbons, and nitrogen dioxide^^— comprise the heart of the APCB's regulatory ef- fort. Excessive levels of these pollutants will set into action the state regulation providing for air pollution forecasts, alerts, warn- ings, and emergencies.^ Out of the six ambient air quality standards, the sulfur dioxide emission standards contained in APC 13" have generated the most controversy. In a successful court battle brought by several Indiana electric power utilities, this regulation was declared invalid because of the APCB's failure to comply with the statutory procedural re- "Id. § (13-l-l-4)-30(6). "The federal statute governing the promulgation of state implementation plans is contained in the Clean Air Act Amendments of 1970, § 110, 42 U.S.C. § 1857c-5 (1970) and clarified in 40 C.F.R. §§ 51.1-.23, 52.1.23 (1976). "The specific ambient air quality standards are set out in 40 C.F.R. §§ 50.4.11 (1976). «'42 U.S.C. § 1857(a)(2)(A)(i) (1970). Indiana failed to meet the 1975 deadline im- posed by the Clean Air Act Amendments of 1970. Interview with Mark S. Maxwell, Attorney for the Indiana Air Pollution Control Board, in Indianapolis (Jan. 27, 1977). See also text accompanying note 69 infra, "42 U.S.C. § 1857c-5(a)(2)(A)(ii) (1970). "40 C.F.R. §§ 50.4-.11 (1976); IND. Admin. Rules & Reg. § (13-l-l-4)-31 (Burns 1976). "iND. Code § 13-1-1-7 (Burns 1973). "iND. Admin. Rules & Reg. § (13-l-l-4)-25 (Burns 1976). The air and stream pollu- tion regulations are denoted by the initials APC or SPC, followed by the agency's regulation number. This notation is independent of the Burns regulation citation system. J 1977] INDIANA ENVIRONMENTAL AGENCIES 963 quirements for adoption of rules and regulations." Because these power plants generate approximately three-quarters of the state's sulfur dioxide pollution,*** they will eventually face three alternatives in cutting their sulfur dioxide output: remove the sulfur from the coal, remove the sulfur dioxide from the exhaust, or convert to low- sulfur coal." None of these alternatives will be cheap or popular, especially as the energy crisis intensifies. As now written, Regulation APC 13 computes each source's allowable sulfur dioxide emissions on the basis of the average smokestack heights, the number of smokestacks, and the heat- producing capacity of the source." Because of this reliance on disper- sion tactics instead of reduced emissions, the areas downwind of sulfur dioxide sources acquire an increased "background" concentra- tion of sulfur dioxide pollution, which may go undetected and unac- counted for in rural air quality regions. Unvarying wind patterns, a factor not taken into account by Regulation APC 13, can result in in- creased downwind concentration of sulfur dioxide, which could vir- tually destroy plant life. The smokestack heights and emission limits for Regulation APC 13 and other emission standards were recommended by the Ameri- can Society for Mechanical Engineers but their study omitted re- search on adverse health and vegetation effects and was "silent . . . in the selection of the maximum allowable ground level concentra- tion."" Thus, several of the APCB's gaseous emission standards are based on an engineering model which fails to take into effect the local meteorological conditions and the health of organisms living within range of the smokestacks. "Indiana-Kentucky Elec. Corp. v. Indiana Envir. Management Bd., No. C73-675 (Ind., Marion Cir. Ct. Nov. 10, 1975), appeal docketed, No. 2-576A-180 (Ind. Ct. App. May 10, 1976). The circuit court ruling also declared APC 14, APC 19, and APC 22 in- valid, but stayed execution of the requested injunction against the APCB, pending ap- peal. Meanwhile, the Board continues to enforce all four regulations. "Indiana Air Pollution Control Board, The Background and Philosophy of Regula- tion APC 13 on Maximum Allowable Sulfur Dioxide Emissions 2 (Sept. 2, 1970) (un- published report available at Indiana State Board of Health, Air Pollution Control Board, 1330 W. Michigan St., Indianapolis, Ind. 46206). 'TD. CuRRiE, Pollution, Cases and Materials 10 (1975). A fourth temporary alternative lies in the discretionary relaxation of air quality standards during energy crises. 42 U.S.C. § 1857c-10(B) (Supp. V 1975). Additionally, the Clean Air Act Amendments of 1977 give the President nondelegable authority to temporarily suspend provisions of a state implementation plan during an energy or economic emergency. Pub. L. No. 95-95, § 107(a), 91 Stat. 685 (1977) (to be codified at 42 U.S.C. § 7410). "Ind. Admin. Rules & Reg. § (13-l-l-4)-25 (Burns 1976). "Indiana Air Pollution Control Board, The Background and Philosophy of Regula- tion APC 13 on Maximum Allowable Sulfur Dioxide Emissions 3, supra note 56. 964 INDIANA LAWREVIEW [Vol. 10:955 The EPA and several environmental groups have voiced concern over increases in background sulfur dioxide concentrations and have challenged several states' "tall stack" regulations, claiming that the Clean Air Act Amendments of 1970 implicitly contain a legislative policy of pollution reduction, not dispersion."" This view has been adopted by several circuits" and the EPA has issued a guideline which cites those circuits* holdings for the proposition that section 110(a)(2)(B) of the Clean Air Act Amendments of 1970 requires cons- tant emissions limitations, not dispersion-dependent technology. However, "where constant emission limitations [are] employed to the maximum extent achievable, it would then be appropriate to permit the use of dispersion techniques where necessary to achieve ambient standards.""' Five of the air quality criteria pollutants — nitrogen dioxide, car- bon monoxide, hydrocarbons, suspended particulate matter, and photochemical oxidants — interact in the presence of sunlight"^ to form what is commonly known as "smog."'* As the humidity rises, suspended particulate matter and sulfuric acid droplets scatter and absorb the light, decreasing visibility. Nitrogen dioxide is responsi- ble for the "whiskey-brown" color common to smog.'^ Carbon monoxide is the only air quality criteria pollutant which is colorless and odorless. It is a product of the gasoline engine's in- complete combustion and adversely affects health by impairing vi- sion, slowing reaction timing, and aggravating heart disease."* At- •"Stack Height Increases Guideline — Air Quality Standards, 41 Fed. Reg. 7450 (1976). "NRDC V. EPA, 489 F.2d 39 (5th Cir. 1974); Big Rivers v. EPA, 523 F.2d 16 (6th Cir. 1975); Kennecott Copper Corp. v. Train, 526 F.2d 1149 (9th Cir. 1975), cert denied, 425 U.S. 935 (1976). «41 Fed. Reg. 7450 (1976). "Pollutants which require the sun's energy as a catalyst in order to form smog are known as photochemically active pollutants. "^Although smog was initially thought to be caused by the combination of smoke and fog, scientists now theorize that branched chain hydrocarbons and nitrogen oxides react to form ozone in the presence of sunlight, resulting in the onset of smog. J. Roberts, R. Stewart, & M. Caserio, Organic Chemistry, Methane to Macromole- CULES 58 (1971) [hereinafter cited as Organic Chemistry]. Ozone is a highly reactive substance which cracks rubber, etches stone, damages plants, aggravates respiratory diseases, discolors dyes, and contributes to the intensity of smog. Sulfur dioxide may also add to the haze by reacting with water present in the air to form tiny droplets of sulfuric acid. Indiana Air Pollution Control Board, Background for Proposed Ambient Air Quality Standards for Carbon Monoxide, Ozone and Photochemical Oxidants, and Hydrocarbons, Table 2 (Dec. 17, 1970) (unpublished report available at Indiana State Board of Health, Air Pollution Control Board, 1330 W. Michigan St., Indianapolis, Ind. 46206); D. CuRRiE, Pollution, Cases and Materials 15 (1975). "D. CuRRiE, Pollution, Cases and Materials 15 (1975). "Indiana Air Pollution Control Board, Background for Proposed Ambient Air 1977] INDIANA ENVIRONMENTAL AGENCIES 965 mospheric concentrations of carbon monoxide are already so high in heavy downtown traffic in large cities that they pose immediate health problems.'^ The EPA has estimated that the federal vehicle emissions con- trol programs will eventually result in an eighty-percent nationwide decrease from the 1967 carbon monoxide automobile emission levels, and predicts similar reductions for other air quality criteria pollutants."* Relying on the supposed effectiveness of the federal program in abating mobile source pollution,'* the APCB drafted its air quality criteria pollutant control regulations to apply to sta- tionary sources only/" After delays in the federal program the APCB discovered that the abatement of stationary source pollution alone in the Indianapolis area would not be sufficient to meet the 1975 EPA-imposed deadline for attaining the primary ambient air standards.^^ The EPA then proposed a plan to restrict automobile use, to encourage mass transit, and to control traffic in the downtown area. The city administration was appalled; such a plan would cripple the rebirth of the inner city and give rise to more ur- ban sprawl. After a city study raised doubts as to the effectiveness of the EPA's transportation control plan, the APCB and the EPA reached a compromise by instituting motor vehicle inspections and a hydrocarbon vapor recovery recycling program at local gas stations. The latter measure was designed to abate a sizable cause of Quality Standards for Carbon Monoxide, Ozone and Photochemical Oxidants, and Hydrocarbons, Table 1, supra note 64. "Organic Chemistry, supra note 64, at 58. "Indiana Air Pollution Control Board, Draft— State Implementation Plan — Rewrite 3-75, supra note 40. Originally the EPA attempted to wage a two-pronged at- tack against motor vehicle pollution, but recent court challenges have thwarted proposed EPA transportation control plans. District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975), vacated, 97 S. Ct. 1635 (1977); Brown v. EPA, 521 F.2d 827 {9th Cir. 1975), vacated, 97 S. Ct. 1635 (1977). In addition. Congress is contemplating another year's ex- tension for compliance with the vehicle emissions control standards. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 201, 91 Stat. 685 (to be codified at 42 U.S.C. § 7521). See the provision of the 1977 Amendments which forbids the approval of cer- tain federal grants to specified areas not utilizing transportation control plans. Id § 176(a) (to be codified at 42 U.S.C. § 7506). "42 U.S.C. §§ 1857f-5(a) to -12 (1970 & Supp. V 1975). ^"Stationary sources, especially petroleum refineries, ferrous metal smelters, and refuse incinerators emitting carbon monoxide are required to burn the stream of waste gases in a direct flame afterburner or control the emission "by other means approved by the Board." Ind. Admin. Rules & Reg. § (13-l-l-4)-28 (Burns 1976). Nitrogen oxide emission limits for stationary sources are specified in pounds of nitrogen dioxide emis- sions per unit of heat input, based on whether the source is gas, oil, or coal fired. Id, § (13-l-l-4)-29. "Indiana Air Pollution Control Board, Draft— State Implementation Plan — Rewrite 3-75, supra note 40. 966 INDIANA LAWREVIEW [Vol. 10:955 hydrocarbon pollution: the evaporation and spillage of gasoline.^^ This hydrocarbon emission regulation also controls the storage, loading, processing, and disposition of volatile organic materials and solvents.'' The APCB possesses the power to evolve stricter stand- ards for sources whose hydrocarbon emissions may pose a health hazard.''* Patterned after a federal model regulation that was based on Los Angeles smog chamber tests,'^ this regulation exempts some hydrocarbons according to their lack of chemical reactivity and their inability to form smog.'® Any stationary pollution source that constructs or operates any air pollution control device must obtain an APCB permit.'' Regula- tion APC 19 requires any source constructing, installing, or modify- ing pollution control equipment to first obtain a construction per- mit,'* while a source already in operation or production must possess an operation permit." To obtain either permit, the applicant must demonstrate that the source will operate in compliance with federal and state standards and will maintain the current air quality if it is better than the minimum standards.^ Local units of government may enforce their own more restrictive regulations or may be given the responsibility of enforcing the state permit program." Permit holders should note that the "issuance and possession of any permit shall not constitute a defense of a violation of any law, regulation or standard."*^ If a pollution source is in violation of a given regulation or the terms of its permit, the APCB first revokes or denies the operating permit. At a meeting with the violator the agency attempts to arrange a provisional permit, a compliance timetable, or an agreed order. If the parties cannot reach an agree- ment, a hearing is called before an officer appointed by the APCB, "Interview with James Elam, Administrative Assistant for the Indianapolis Air Pollution Control Division, in Indianapolis (Nov. 24, 1976). "IND. Admin. Rules & Reg. § {13-l-l-4)-27 (Burns 1976). ''Id. § (13-l-l-4)-27 (8)(d). "Interview with William Schoonmaker, Chief of Standards Section, Indiana Air Pollution Control Division, in Indianapolis (Feb. 24, 1977). "IND. Admin. Rules & Reg. § (13-l-l-4)-27(8)(b) (Burns 1976). "M §§ (13-7-10-l)-22 to -27. "/d § (13-7-10-l)-22. "M § (13-7-10-l)-23. "M §§ (13-7-10-l)-22(b), -23(e). See Significant Deterioration of Air Quality, 40 C.F.R. § 52.21 (1976), and the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, §§ 160-169, 91 Stat. 685 (1977) (to be codified at 42 U.S.C. §§ 7470-7479), which require state implementation plans to meet even more stringent requirements for the preven- tion of significant deterioration. *7»»/d § 1342(b); 40 C.F.R. §§ 124.1.94 (1976). 1977] INDIANA ENVIRONMENTAL AGENCIES 969 regulations. Each permit holder must monitor the discharges which are not considered "minor," or which are specifically required to be monitored, or which contain some toxicity. Monitoring results must be reported to the SPCB.^''* which forwards them to the EPA. The SPCB field crew constantly performs spot checks on assigned sources in order to check the accuracy of these sources. ^""^ A separate system of permits effectuates the SPCB's solid waste regulatory program, which requires special permits for industrial waste haulers, ^"^ sanitary landfill facilities, ^°^ and refuse processing facilities,*"* while municipal sewage treatment plants operate under both the NPDES and local permits. **** Most cities operate a dual storm and sanitary sewer system, which generally meets SPCB stand- ards; however, a heavy rainfall or an intentional sewer overflow may result in fresh sewage with a high ammonia content spilling in- to the streams, usually resulting in a violation of the source's permit and high fish mortality."" Due to the high cost of constructing new waste treatment facilities equipped to meet the federal effluent limitations. Congress provided for seventy-five percent federal fund- ing of the cost of approved projects in the Federal Water Pollution Control Act Amendments of 1972."' Regulation SPC 1R3 sets the water quality standards for most bodies of water in Indiana,"^ depending on their type of use, such as whole or partial body contact recreation, warm or cold water fish maintenance, public or industrial water supply, or agricultural pur- poses."' For each type of water use, the regulation specifies a varie- ty of criteria, including pH and temperature ranges; taste and odor; '•*IND. Admin. Rules & Reg. § (13-7-10-3)-24 (Burns 1976). "'Interview with Robert G. Grant, supra note 12. '"•IND. Admin. Rules & Reg. § (13-7-10-l)-38 (Burns 1976). ""Id. §§ (13-7-10-l)-55, -62. '"/d §§ (13-7-10-l)-59, -76. ^"^3 U.S.C. §§ 1342, 1345 (Supp. V 1975); interview with James Elam, supra note 72. ""Interview with Robert S. Morse, Administrator of the Department of General Sanitation, Bureau of Environmental Health, Health and Hospital Corporation of Marion County, Indiana, in Indianapolis (Nov. 19, 1976). '"33 U.S.C. §§ 1281, 1282 (Supp. V 1975). For federal criteria for approval of funds. see id. § 1284(a). "iND. Admin. Rules & Reg. § (13-1-3-7)1 (Burns 1976). Regulation SPC 1R3 does not apply to Lake Michigan, Wolf Lake, the Grand Calumet River, the Indiana Harbor Ship Canal, and privately owned ponds. Sections (13-l-3-7)-4 to -8 specify less stringent water quality criteria for all of the above except the private ponds. Id, §§ (13-l-3-7)-4 to -8. The Gary vicinity's water pollution regulations are now jointly administered by the SPCD and the EPA, due to the immensity of the local pollution problems and the political pressures. Interview with Robert G. Grant, supra note 12. "•Ind. Admin. Rules & Reg. § (13-l-3-7)-l(3)(a) (Burns 1976). 970 INDIANA LAWREVIEW [Vol. 10:955 toxicity; dissolved solid and oxygen concentrations; and bacterial, chemical, and radioactive content/" Where multiple uses are designated, the most protective criteria will determine the stand- ards"** and where the existing waters are currently of higher quality than the applicable standards, such quality may not be degraded."' The designated use standards do not apply within the dispersion area of each pollution source's waste effluent and the receiving body of water, the latter's use designation, the dilution ratio, and the synergistic and aggregate effects of nearby discharges/" However, all waters, including the mixing zone, must be free of substances which are putrescent, unsightly, harmful, or toxic, or which con- stitute a nuisance."' Drainage of cyanide or related compounds into sewer systems or waterways is forbidden, except with prior SPCB approval."' Coal mine owners are required to dispose of their mining refuse so as to minimize acid mine drainage into state waters,^^ while spills"^ of oil and other hazardous or objectionable substances must immediately be contained and reported to the SPCB Technical Secretary, followed by a clean-up procedure which minimizes damage to public health, various biological entities, and the surrounding waters.^^ A 1971 state statute limited and later banned the sale and use of phosphorus-containing detergents with certain exceptions.*^* Those sources falling within those exceptions must apply for a SPCB per- mit, wherein they must demonstrate that their use of the detergent is necessary and has no adequate substitute and that the phosphate will be removed from the effluent.*" This detergent ban has been dramatically effective in reducing phosphate contamination in "*/d § (13-l-3-7)-l(6). Salmon spawning and migration waters are subject to more stringent standards. Id § (13-1-3-7)10. "»/d § (13-l-3-7)-l(3)(b). "•/d. § (13-l-3-7)-l(l). "7d § (13-l-3-7)-l(4). ""/d § (13-l-3-7)-l(6)(a), "Vd § {13-l-3-7)-2. *"/d § (13-l-3-7)-3. Hills of coal mine refuse, called "gob piles," generate large quantities of sulfuric acid due to the oxidation of the pyrites in coal particles by rain water seepage. King, 'Gob Pile' Bulldozed After 50-Year Growth, The Indianapolis News, Nov. 29, 1976, at 18, col. 5. "'Ind. Admin. Rules & Reg. § (13-l-3-7)-12 (Burns 1976). This section defines a "spill" as "any unexpected, unintended, abnormal, or unapproved dumping, leaking, drainage, seepage, discharge or other loss . . . which enters or threatens to enter the waters of the state." '"Id. § (13-l-3-7)-13. >««IND. Code § 13-1-5.5-3 (Burns 1973). "*IND. A^MiN. Rules & Reg. § (13-l-3-7)-ll (Burns 1976). 1977] INDIANA ENVIRONMENTAL AGENCIES 971 various bodies of water and its accompanying side effects/^" A federal study of twenty-seven Indiana lakes revealed a "marked im- provement in phosphate concentration in the two years following the ban" in twenty-six of those lakes. However, the agency does con- cede that the increased additives in the newer non-phosphate detergents could create more exotic pollution problems.^^' The SPCB's enforcement methods parallel those of the APCB/" initially relying on permits, compliance timetables, and agreed orders to bring sources into compliance with the state effluent limitations/" The Act specifies the procedures to be followed for notice to the violator, hearing and final order by the SPCB,^^ and subsequent court actions.^*" B. Department of Natural Resources The role of the Department of Natural Resources (DNR) in pollu- tion control is peripheral to the primary efforts of the Air and Stream Pollution Control Boards. Although the DNR rarely deals with pollution sources, its state jurisdiction is concurrent with that of the SPCB with regard to all bodies of water stocked with fish, all bodies of water not enclosed by a single owner's land, and all waters facilitating the passage of fish."^ The DNR's 167 conservation of- ficers are vested with the power to arrest any person witnessed dumping "refuse" into the waters of the state.^"^ The term "refuse" as defined in the statute includes many of the substances regulated by the SPCB, particularly "all putrescible and nonputrescible solid and semisolid wastes, including garbage, rubbish, ashes, street cleanings, dead animals, offal and solid commercial industrial and in- stitutional wastes."*" A polluter causing a fish kill or other wildlife deaths within the bounds of DNR jurisdiction could face concurrent suits by the DNR '**rhe phosphates in detergents and fertilizers inevitably seep into water supplies, stimulating algae growth while extinguishing other marine life and causing an ac- celerated aging of the lakes, called eutrophication. Organic Chemistry, supra note 58, at 528. ^**More Additives in Wash, The Indianapolis News, Dec. 17, 1976, at 15, col. 4. ^"See notes 83-84 supra and accompanying text. '"Interview with Robert G. Grant, supra note 12. '"IND. Code § 13-1-3-9 (Burns 1973). '"/d §§ 13-1-3-11, -12, -14, -15. '"/d. § 14-2-2-1 (Burns 1973); interview with Major John Henaricks, Conservation Law Enforcement Officer for the Department of Natural Resources, in Indianapolis (Nov. 18, 1976). '"IND. Code § 14-3-11-1 (Burns 1973). '-Id. 972 INDIANA LAWREVIEW [Vol. 10:955 in the form of misdemeanor charges,^** a civil action for damages sustained from the fish kill,^'^ and even a suit in equity to enjoin fur- ther pollution.^** The DNR fish kill figures may also be incorporated into an SPCB complaint in the form of three counts against the of- fender: violation of the Indiana Water Pollution Control Act,^'' breach of the NPDES permit/'' and damages for the fish kill/'» As an SPCB attorney noted, a complaint with that much "ammunition" usually restrains the appellate judge from reducing the violator's fine/*" II. The Attorney General of Indiana The Indiana Attorney General possesses the statutory authority to initiate all court actions on behalf of the EMB and its various agencies, including the APCB and the SPCB/" This arrangement bears a close resemblance to the federal enforcement scheme, wherein the EPA takes full responsibility for monitoring, drafting compliance orders, and even investigating violations,**^ but the Justice Department shoulders the burden of prosecution and litiga- tion/*» At both the state and federal levels, this split enforcement scheme fosters common advantages and disadvantages. Although this detachment of the investigative staff from the litigative staff in- creases the possibility of errors by the Attorney General's staff at the hearing or trial stage, it encourages an objective review and evaluation process by the Attorney General's specialized Environ- mental Division as to whether the evidence compiled by the agency will support the proposed cause of action.*** In order to facilitate communication between the Environmental Division and the environmental agencies, a member of the Division '"M § 14-2-3-8. "»/d § 14-2-6-7. '"/d § 14-3-1-14(8). ^"/d §§ 13-1-3-1 to 13-1-3-18. ^"'33 U.S.C. § 1342 (Supp. V 1975); Ind. Admin. Rules & Reg. § (13-7-10-3)-27 (Burns 1976). "»IND. Code § 14-2-6-7 (Burns 1973). '"Interview with Robert G. Grant, supra note 12. >"IND. Code §§ 4-6-3-1, 4-6-5-3 (Burns 1974); id. §§ 13-1-1-7, 13-1-3-15, 14-2-6-7(2) (Burns 1973). "'See 33 U.S.C. §§ 1251-1376 (Supp. V 1975); 42 U.S.C. §§ 1857-1858 (1970 & Supp. V 1975). »"28 U.S.C. §§ 515-516 (1970 & Supp. V 1975); 42 U.S.C. § 1857h-3 (1970). '"Interview with Michael Schaefer, Chief of the Environmental Division, Assistant Attorney General to Indiana Attorney General Theodore L. Sendak, in Indianapolis (June 15, 1977). 1977] INDIANA ENVIRONMENTAL AGENCIES 973 regularly attends meetings of the APCB and the SPCB/*"^ Formal re- quests for legal action by the Attorney General may originate from the EMB, the APCB, the SPCB, or even from the EPA on referral/*' In addition to environmental litigation, the Environmental Division also represents the Department of Mental Health, other State Board of Health agencies, and the Department of Natural Resources, resulting in a diverse spectrum of concurrent lawsuits. ^*^ Although this arrangement maintains a semblance of amicability, Indiana Attorney General Theodore L. Sendak has sparked a con- troversy over the statutory power of the EMB, the APCB, and the SPCB to employ their own attorneys.^** Much of this confusion can be traced to statutory ambiguities in the Environmental Manage- ment Act which states that the EMB, the APCB, and the SPCB may "conduct ... or participate in conferences or hearings . . . concern- ing any matter within the scope of the power and duties of the board or the appropriate agency . . . J"^*^ Furthermore, they may **[p]roceed in . . . court ... by appropriate action, to enforce any order of the . . . agency; to collect any penalties . . . ; or to procure . . . compliance with . . . any regulation or standard of the board or agencies."^"^ In order to carry out the above duties, they may "[ejmploy or contract for such legal, professional, and other person- nel ... as may be necessary for efficient performance of duties im- posed by this article."^" On first reading, these statutory excerpts would seem to give the aforementioned agencies power to employ their own legal counsel, except when read in the context of another statute which requires any agency hiring an attorney to first obtain the written consent of the Attorney General.^^^ Although the wording of this lat- *"/d. The Division may also file an amicus curiae brief in an ongoing lawsuit where the state has an interest in the outcome of the suit, but is not a party thereto for jurisdictional reasons or lack of standing. In U.S. Steel Corp. v. Train, Nos. 73H-190 & 77H-212 (N.D. Ind. June 16, 1977) (consent decree entered), Indiana filed an amicus curiae brief in a suit involving a Gary plant where EPA had taken over enforcement and permit responsibilities for the Gary area. "Interview with Michael Schaefer, supra note 144. '"Hoffman, Water Control Program May Prove IllegaU The Indianapolis Star, Sept. 16, 1975, at 7, col. 1. "»IND. Code § 13-7-5-l(f) (Burns 1973). '^/d. § 13-7-5-l(^). '''Id. § 13-7-5-l(k). '""No agency . . . shall have any right to name, appoint, employ or hire any at- torney, or special or general counsel to represent it or perform any legal service in behalf of such agency and the state without the written consent of the attorney- general." I± § 4-6-5-3 (Burns 1974). 974 INDIANA LAWREVIEW [Vol. 10:955 ter statute could admittedly be interpreted as not covering the hir- ing of advisory or "in-house" attorneys, a 1953 Attorney General's Opinion invalidated an employment contract and forbade payment for services of such an attorney for another state agency .^^^ Since the onset of the controversy in September 1975, no further action has been taken toward resolution,^" perhaps indicating a softening of the Attorney General's stand on the issue to allow the hiring of agency attorneys as hearing officers and as legal advisors to review contracts, to draft regulations, and to advise the agency. III. LOCAL Environmental Agencies A. Indianapolis Air Pollution Control Division The Indianapolis Air Pollution Control Division (lAPCD) ex- emplifies the full range of responsibilities which can be assumed by a local agency from the state APCD, although other local air pollu- tion control agencies may differ in their regulatory powers and u- nique pollution problems. Although the lAPCD's parent agency is the Indianapolis Depart- ment of Public Works, the Division's budget is supplemented by EPA grants amounting to almost fifty percent of its total funding, and its personnel are trained in part at EPA seminars. The state APCB has delegated its enforcement power for the Indianapolis area to the lAPCD in a written contract which stipulates that the EPA can mandate changes in the local regulations.^^^ The Division may also promulgate and enforce its own regulations, as long as they are more stringent than state and federal regulations.^" Currently it has issued installation permits or operating certificates to approximately one thousand sources. The local laboratory and monitoring results are transmitted to an EPA computer in Texas which stores them for EPA use.'^' Local enforcement proceeds on one of three alternatives: (1) a court appearance to impose a fine for each violation; (2) an agreed order signed by the agency and the offender, providing for the in- stallation of pollution abatement equipment and the offender's con- tinued good faith; or (3) a default on an agreed order, resulting in a breach of contract suit. The agency feels considerable local pressure from the mayor, the media, neighborhood associations, and citizens* ^"[1953] IND. Att'y Gen. Op. 284. ^"Interview with Michael Schaefer, supra note 144. ^"Interview with James Elam, supra note 72. ^"IND. Admin. Rules & Reg. § (13-7-10-l)-27 (Burns 1976). "Interview with James Elam, supra note 72. 1977] INDIANA ENVIRONMENTAL AGENCIES 975 groups. The latter two types of organizations can, if necessary, sue the lAPCD in a class action for nonenforcement of an agreed order if they can prove the occurrence of an illegal emission and an injury to the neighborhood or class members/'** B. Marion County Health and Hospital Corporation The Marion County Health and Hospital Corporation was estab- lished pursuant to the "Unigov" reorganization of the Indianapolis and Marion County governmental agencies in 1969."' The Corpora- tion has the powers and responsibilities of a local health agency, in- cluding disease prevention and control, operation of hospital facilities, and related functions.^"** The Corporation's Bureau of Environmental Health is responsi- ble for local food, housing, and sanitation. In particular, the Sanita- tion Branch has jurisdiction over sewage, solid waste disposal, and stream pollution control, coinciding with, and, in some cases, conflic- ting with state SPCB regulations.^" However, the major effort on the part of this agency is the regulation and surveillance of local sewer systems, water treatment plants, and land fill operations,^*'' under the mandate of county ordinances and regulations, which in- corporate the SPCB's water quality standards by reference.^** Although the Health and Hospital Corporation is technically an SPCB subsidiary, it receives no funding or internal directives from the SPCB.^" The local prosecutor's office represents the Corporation in judicial proceedings, after the Corporation has investigated the violation and handled the hearing.^" IV. The Dynamics of Environmental Enforcement— Conclusion Since the inception of strong environmental legislation during "•The Unigov reorganization was accomplished pursuant to the Consolidated First-Class Cities and Counties Act, ch. 173, 1969 Ind. Acts 357 (now codified at Ind. Code §§ 18-4-1-1 to 18-4-24-25 (Burns 1974)). '"iND. Code §§ 16-12-21-22, -28 (Burns 1973). '"Interview with Robert S. Morse, supra note 110. The Indiana Attorney General has ruled that county governments have no power to enact air pollution control or- dinances, but that they may enter into the field of local water pollution control. [1967] Ind. Att'y Gen. Op. 430. Hence, the Indianapolis Air Pollution Control Division is under the auspices of the municipal government, while the Marion County Health & Hospital Corporation is a separate county-based corporation. "Hnterview with Robert S. Morse, supra note 110. '"Marion County, Ind., Ordinance 6-1960, § 3 (Sept. 12, 1960) (incorporating by reference SPC 1R3. Ind. Admin. Rules & Reg. § (13-7-10-3)-24 (Burns 1976)). See text accompanying notes 112-118 supra. '•^Interview with Robert S. Morse, supra note 110. 976 INDIANA LAWREVIEW [Vol. 10:955 the environmentally-concerned 1960's, the country's environmental conscience has been compromised by a severe recession and an energy crisis. The freewheeling economy of the 1960's has given rise to the tight-fisted 1970's, leaving this nation's populace to ponder whether the price we now pay in dollars and cents to abate pollution is on par with the price we will otherwise pay for environmental damage to person and property. Statistics now estimate that "as much as 8 to 21 percent of major U.S. industry capital expenditures 4 in recent years has been for pollution control."^** Without much statistical expertise, one realizes that these "capital expenditures" have been passed on to the consumer in the form of price increases, contributing to the inflationary trend. The current situation leaves the state environmental agencies in a curious balancing predicament. In some instances, the state agen- cy's formulation of its implementation plan and accompanying regulations becomes a tug-of-war between industry representatives and environmentalists, both parties holding their hard-line positions, neither willing to face the real dilemmas of environmental law. One dilemma is painfully clear to consumers who are indignant at in- dustry's asserted right to use the air and water of their community as a convenient waste disposal system. When the cost to abate these practices comes out of the consumers* pockets in higher prices, fewer jobs, and possibly even industry shutdowns, the consumers soon clamor for less stringent regulations. The other dilemma belongs to the administrator who wishes to follow the dictates of his agency's legislative mandate, but fears that burgeoning industry, labor, and municipal pressure may persuade the legislature to dilute the agency's powers if the agency enforces its mandate too stringently. Thus, the administrator becomes a crusader, not for the environment, but for the survival of his own agency. The legislature's susceptibility to pressure by big business forces the agency to change its "battle plan" from that of an offen- sive campaign against pollution sources to a defensive justifiction of its own existence. This further reduction in effectiveness leaves the agency open to valid criticism by environmentalists concerning its inability to devote its undivided attention to pollution abatement. Similarly, some local agencies are reluctant to fly in the face of strong community sentiment, especially in the light of rising unemployment and an energy crisis. The crux of these agencies* dilemma lies not in their organization or statutory mandate, but in the political system under which they were created. "•Weston, A Current Evabiation of Environmental Goals in the United States, in Fifth Annual Environmental Symposium, Central Indiana Technical Societies 33, 37 (1976). 1977] INDIANA ENVIRONMENTAL AGENCIES 977 The issues pertaining to state and local environmental enforce- ment are not brought into full focus without considering the federal role in pollution abatement. Numerous sources have criticized Con- gress' statutory dilution of an effective pollution control scheme, as well as its vacillating commitment on crucial pollution abatement issues. These practices have lent support to industry's reluctance to commit substantial capital resources to the goal of complying with federal pollution standards, some of which may have been eased by the time compliance is achieved. Industry compliance has been fur- ther retarded by the contradictions and contortions of a multilevel, overlapping permit system, for which the agencies have only them- selves to blame. A little consistency and stability in the overall regulatory scheme would greatly contribute to positive environmen- tal change. Additional problems arise from the demands of EPA policies in general. Occasionally a state agency expends so much effort meeting EPA standards that it overlooks some local trouble spots. For exam- ple, a recent lead oxide contamination in the Indianapolis area took place principally because the EPA had not yet set air quality stand- ards for that pollutant.^"^ An agency attorney suggests that the EPA would be more valuable to the states in researching and advising the best method by which to bring specific industries into com- pliance, rather than mandating the pollution standard to be met without further guidance as to the most feasible method of abate- ment.^" Because of their dual dependence on federal as well as state funding,^'* the state environmental protection agencies may find themselves being drawn in diverse directions by state and federal pursestrings. Moreover, the EPA has the power to disapprove a state implementation plan, withdraw federal funding, and reinstate or initiate federal enforcement of the original EPA regulatory scheme."" Unlike the state agencies, the enforcement measures in- stituted by the EPA must be formulated without considering the economic cost and the technological feasibility of the required abate- ment methods."^ Such a loss of state control in enforcement alter- natives and the shift in enforcement responsibility to the EPA are so undesirable that both the state and federal officials strive to avoid the necessity of EPA enforcement, except in problem areas "Interview with James Elam, supra note 72. '"Interview with Mark S. Maxwell, supra note 19. "'See note 9 supra and accompanying text. ""»33 U.S.C. § 1342(c) (Supp. V 1975); 42 U.S.C. § 1857c-6 (1970). "'See Union Electric Co. v. EPA. 427 U.S. 246 (1976) (construing Clean Air Act Amendments of 1970. § 110(aK2)(A) to (H). 42 U.S.C. § 1857c-5(a)(2)(A) to (H) (1970)). 978 INDIANA LAWREVIEW [Vol. 10:955 where federal intervention is the only effective means of control."^ Although environmental enforcement has progressed con- siderably since the days of private civil litigation in nuisance theory, its statutory evolution is not yet complete. Federal, state, and local agencies are faced with the unenviable task of resolving the regulatory inconsistencies which currently hinder enforcement efforts. In particular, Indiana's recent environmental protection legislation has given rise to a segmentation of enforcement respon- sibilities between several state agencies, as well as a split in the in- vestigative and the litigational powers. As with any newly designed strategy, several aspects of the system still require fine-tuning and revision by the agencies and the legislature in order to bring en- vironmental enforcement into line with the lofty ideals of its concep- tion. Christina L. Kunz "Tor example, the Gary-East Chicago area is now under the exclusive jurisdiction of the EPA Region V office in Chicago. Interview with Mark S, Maxwell, supra note 50.