Application FW-16,608 submitted by the Cass County Board of Commissioners is approved.
FINDINGS OF FACT
1. On January 26, 1995, Cass County submitted to the Department of Natural Resources (the "Department"), permit application FW-16,608 seeking to replace an outdated steel bridge with a new, five-span creosote-treated timber bridge. This new bridge, designated Bridge #146, was to be constructed at the same location as the old one, in the floodway of Pipe Creek in Cass County, Indiana.
2. On May 26, 1995, the Department approved Cass County's application.
3. Faye Wells (the "Claimant") petitioned the Division of Hearings of the Natural Resources Commission (the "Commission") for administrative review of the Department's decision by letter dated June 9, 1995.
4. Tim Rider was assigned as Administrative Law Judge (ALJ) by the Commission for this proceeding.
5. In her initial petition the Claimant objected to the absence of a Department policy regarding the use of creosote soaked bridge timbers. On August 30, 1995, Claimant filed contentions which amended her initial petition to include, among other things, the allegation that creosote-treated timbers have an unreasonably detrimental effect on fish, wildlife or botanical resources, in violation of Indiana Code (IC) 14-28-1-22.
6. The Claimant further maintained that the Department should publish a policy on how creosote treated timbers should be handled to preclude the release of the chemical into the environment.
7. The Department contended, and Cass County agreed, that no policy is needed or appropriate because there is "a lack of evidence to support the assertions that use of creosote treated wood for construction in flowing water creates any detectable or known level of direct or indirect hazard' to plants and animals in the aquatic environment". (See joint Motion to Dismiss and, in the Alternative, Motion for Summary Judgment filed Oct. 23, l995, page 2).
8. IC 4-21.5 (the Administrative Orders and Procedures Act) as well as 310 Indiana Administrative Code (IAC) 0.6-1 (since changed to 312 IAC 3) govern the conduct of this proceeding.
9. The Department is an agency as defined in IC 4-21.5-1-3 and is the agency responsible for regulating floodways in Indiana.
10. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
11. In accordance with IC 14-10-2-3, the Commission is the ultimate authority for the Department for this type proceeding.
12. IC 14-28 (The Flood Control Act) and 310 IAC 6 govern the substantive law regarding the issuance by the Department of floodway construction permits such as the one in question here.
13. On June 23, 1995, American Timber Bridge & Culvert, Inc. (ATB) moved to intervene in this case as an affected party. ATB is a distributor of creosote timber bridge structures within the state of Indiana and in Cass County.
14. The Claimant did not challenge ATB's motion to intervene and respondent intervenor status was granted on July 17, l995.
RULINGS ON MOTIONS FOR SUMMARY JUDGMENT
15. On October 23, 1995, Cass County, the Department and ATB jointly filed a Motion to Dismiss and, in the Alternative, Motion for Summary Judgment along with a supporting brief. These materials asserted that Claimant lacked standing to pursue her appeal, and further that her petition had failed to state a legal basis for the permit to be overturned. The Respondents also asserted that the water quality issues raised by Claimant were within the sole jurisdiction of the Indiana Department of Environmental Management ("IDEM").
16. On November 29, 1995, the Claimant filed a Motion for Summary Judgment, alleging that
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creosote was leaking from Bridge #146 in violation of Indiana statutes and water quality rules.
17. The ALJ denied the Claimant's motion and granted the Respondents/Respondent Intervenor's motion in part. The ALJ ruled that Claimant had standing and further determined that the only issue to be tried was whether the creosote-treated timbers of Bridge #146 had an unreasonably detrimental effect upon fish, wildlife or botanical resources of the site in question. Since material facts are in dispute regarding the use of creosote-treated timbers, an evidentiary hearing need be conducted to resolve this dispute.
18. The ALJ further held that alleged violations of water quality standards set forth in 327 IAC 2-1-6 and Ind. Code 13-7-4 are enforced solely by IDEM and are not within the jurisdiction of the Department and the Commission (See IC 14-28 for requirements examined by the Department in respect to issuance of a certificate of floodway construction).
19. In regard to the Claimant's standing to bring this case the ALJ examined IC 4-21.5 and available precedent.
20. IC 4-21.5-3-7(a)(1)(B) requires a petitioner in this type case to show that "he/she is aggrieved or adversely affected by the order".
21. Generally speaking "standing" to pursue a civil action means that a party has a sufficient stake in a controversy to obtain a judicial resolution. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
22. The Claimant's standing is obtained by her status as a citizen of Cass County and a user of the natural resources of the area in question. Granting standing in this situation seems to be in accordance with provisions of IC 13-6-1-1(d).
23. Where its regulatory authority is based upon environmental considerations, the Commission has either assumed or viewed liberally the standing of citizens to participate in adjudicatory processes. Extensive research efforts have not encountered even one instance where the Commission has denied standing if environmental concerns were at issue.
24. The term "unreasonable detrimental effects upon fish, wildlife, or botanical resources" is defined as: "damage to fish, wildlife, or botanical resources which is found likely to occur by the director based upon the opinion of a professional qualified to assess the damage and which:
(A) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and
(B) cannot be mitigated through the implementation of a mitigation plan approved by the director." 310 IAC 6-1-3(24).
25. Claimant bears the burden of persuasion and of going forward with evidence that proves, by a preponderance of the evidence, that the permit at bar was improperly issued because the material sought to be placed in the floodway of Pipe Creek would have an unreasonably detrimental effect upon fish, wildlife or botanical resources. See Brown v. DNR and Peabody Coal Company, 6 Caddnar 136 (1992).
EXAMINATION OF THE EVIDENCE
26. Pipe Creek is a small to moderate size perennial stream which flows into the Wabash River near Logansport, Indiana. Bridge #146 is located on Pipe Creek several miles upstream of its mouth.
27. The area surrounding Bridge #146 is rural. Vehicles which use Bridge #146 include tractors, combines, other farm vehicles, cars, school buses and emergency vehicles.
28. Bridge #146 was originally constructed of steel some 100 hundred years ago. The Bridge is now maintained under the authority of the Cass County Commissioners. In recent years, the Commissioners became concerned about the structural integrity of Bridge #146 and advised the local school corporation and fire department to cease using the bridge for their vehicles.
29. Creosote-treated wood bridges, manufactured with timbers treated like the ones used in Bridge #146, have been used in such environmentally sensitive settings as the Chesapeake Bay, Sanibel Island, and here in Indiana in the Muscatatuck Wildlife Refuge near Seymour. Creosote-treated "fish ladders" have been built for the U.S. Fish and Wildlife Service for use in trout streams in Colorado.
30. Creosote is a complex mixture of thousands of chemicals. It is a by-product of the coal coking process and has been used as a wood preservative for more than 100 years. Creosote renders wood somewhat waterproof and prevents degradation by
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insects and fungi. Timbers treated with creosote can last a century or longer.
31. One particular component of creosote is a family of chemicals known as polycyclic aromatic hydrocarbons (PAHs), which make up approximately 80 percent of creosote. The PAHs are the focus of concern in this case. Approximately three to five percent of PAHs are known or suspected carcinogens.
32. The PAHs especially of concern are the heavy molecular weight compounds. These are less soluble in water and more likely to accumulate in the fatty tissues of aquatic organisms. In water, PAHs are likely to be deposited around bridge pilings coming into contact with the water, although the current of the stream will effect the deposition somewhat.
33. When creosote constituents are introduced into the aquatic environment they are much more likely to become absorbed into sediment particles than dissolved into water. PAH concentrations in sediments are typically many times greater than PAH concentrations in the water in which those sediments are found.
34. It is well established that environmental exposure to PAHs results from a variety of human activities. Diesel exhaust, road run-off from surfacing material, and smoke from fireplaces and other outdoor fires are all contributors of PAHs to the environment. Humans are constantly exposed to PAH as result of eating charbroiled meat, pumping gasoline and other common activities. Consequently, human bodies probably contain many molecules of PAH at any one time.
35. A document cited and relied upon by experts on both sides of this case is the 1987 U.S. Fish and Wildlife Service Biological Report by Ronald Eisler, entitled "Polycyclic Aromatic Hydrocarbon Hazards to Fish, Wildlife, and Invertebrates: A Synoptic Review", Claimant's Exhibit 10 (hereafter, the "Eisler Report"). That document states that PAHs are produced from forest fires, volcanic eruptions and a variety of other natural processes. Eisler Report, pp. 7, 9, references omitted. The Eisler Report states that PAHs are so widely-distributed in the environment that avoiding exposure to minute quantities of PAHs on a daily basis is now impossible for all living things. Eisler Report, p. 2. According to the Eisler Report, "[a]ll but the most heavily contaminated fresh and marine waters contain total PAH concentrations in the part-per-trillion or low part-per-billion range." Eisler Report, p. 24.
36. The United States Environmental Protection Agency (EPA) allows the use of creosote pressure-treated wood for bridges and piers, even when there is incidental contact with public drinking water. EPA Notice, 49 Fed. Reg. 28666 (July 13, 1984). This position was re-affirmed in a Notice published in the Federal Register two years later, 51 Fed. Reg. 1334 (January 10, 1986), after the conclusion of an eight-year study of creosote and its effects.
37. On August 24, 1995, the Department issued a position statement which provided that it would continue to allow the use of creosote-treated timbers for docks and bridges in flowing waters, in a manner consistent with the EPA notice of 1986.
38. An affidavit submitted into evidence from Deputy Commissioner Timothy Method of IDEM indicated that his agency was aware of the Department's position on this matter, and that it was not contrary to any previous practices of IDEM.
39. The replacement of Bridge #146 commenced during the summer of 1995. The timbers used in construction of the replacement bridge were supplied to the Cass County by ATB. The timbers were impregnated with creosote at a processing plant in South Dakota.
40. Treated timbers in the new Bridge #146 were treated in several stages: a pre-conditioning stage where wood is dried, inside and out; a twelve to twenty-four hour pressure-injection phase, during which wood and creosote are heated and subjected to pressure in a sealed chamber; and an additional stage when the treated wood is heated by steam and excess creosote is removed by vacuum.
41. The goal of this "empty cell" creosote treatment process is to leave a coating of creosote on cell walls without leaving any "free" creosote within wood cells. The empty cell process differs substantially from the "full-cell" treatment process commonly used for railroad ties and marine pilings.
42. The timbers in the new Bridge #146 were treated using "best management practices" developed by the Western Woods Preservative Institute, a national trade association of wood preserver businesses. "Best management practices" means, among other things, that all free creosote was extracted from the timbers following the
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injection process and all creosote-containing debris was removed from the timber surfaces. The finished timbers are dry to the touch.
43. During the summer following installation of new pilings for Bridge #146, Claimant observed sheens on the surface of Pipe Creek, which appeared to be emanating from the creosote treated bridge piers. Claimant testified that she believed the sheens were caused by creosote leaching from Bridge #146 into the creek. However, neither Claimant nor the expert witnesses testifying on her behalf collected samples of the sheen or conducted any tests to determine if the sheens were in fact caused by creosote, and if so, whether the creosote emanated from the bridge timbers or from other sources (such as road surfacing materials on the bridge or motor vehicle exhaust or deposits).
44. No evidence of fish kills in the vicinity of Bridge #146 or evidence of adverse effects on other aquatic organisms or on wildlife or botanical resources has been brought to the attention of Cass County.
45. Experts testifying both in support of and in opposition to Bridge #146 agreed that the creosote constituents at high concentrations are toxic to aquatic organisms. The question in this case, however, is whether creosote constituents leach from Bridge #146, and if so, whether the leaching is so severe as to constitute an unreasonable detrimental effect upon fish, wildlife, or botanical resources.
46. Analyses of sediment and water samples from Pipe Creek in the vicinity of Bridge #146 were introduced into evidence by ATB. It is noteworthy that ATB is the only party that actually visited the site and conducted sampling of the water and sediment.
47. The data collected was analyzed by an environmental consulting firm at the direction of ATB's expert. No other analyses of Pipe Creek sediment or water chemistry was offered into evidence.
48. Sediment samples were collected 50 meters upstream of Bridge #146 and 1, 10, and 100 meters downstream of the bridge. Analyses of the downstream sediment samples showed extremely low level concentrations -- at or below 21 parts per billion.
49. As to water samples, no PAH concentrations above the detection limit of 3 parts per billion were detected in water sampled immediately downstream of Bridge #146.
50. The expert witnesses in this case debated the degree to which extremely low concentrations of PAHs constitute an "unreasonably detrimental effect on the fish, wildlife or botanical resources of the area".
51. PAHs at high concentrations have been observed to cause acute effects such as fish kills as well as reproductive, chronic and carcinogenic effects on aquatic organisms. Research on PAH toxicity has largely been conducted in environments which have become highly contaminated by industrial effluents. This body of work includes research conducted by Claimant's expert (Dr. Spacie) and others in the Little Scioto River and research conducted by another of Claimant's experts (Dr. Baumann) in the Black River. Both of these rivers are in Ohio. Both are heavily industrialized and highly contaminated by PAHs.
52. Claimant's expert (Dr. Spacie) indicated that she was concerned about the possible effects of creosote constituents at very low levels in water and sediment based in a large part on her research in the area of phototoxicity -- a condition whereby certain PAHs become more toxic to organisms upon exposure to sunlight.
53. This expert had never visited the site and was unable to testify as to the actual conditions at Bridge #146, and whether phototoxicity was taking place. She never sampled or surveyed biological, chemical or other field conditions at the site. She never measured the ultraviolet radiation penetrating the sediments in Pipe Creek. Rather, her testimony was based on her own experience and literature on phototoxicity observations and results taken from heavily industrialized rivers, with levels of PAH contamination many times greater than the concentrations measured in Pipe Creek sediments.
54. The issue of phototoxicity was addressed by the EPA in a 1993 guidance document entitled "Sediment Quality Criteria for the Protection of Benthic Organisms: Fluoranthene" (the "Fluoranthene document").
55. Claimant's expert was consulted by the EPA during the preparation of the Fluoranthene Document, which indicates, among other things, that more research on the subject is needed as there is an absence of data demonstrating a causal linkage between exposure to phototoxic chemicals and increased risk to benthic organisms.
56. Claimant's expert was unable to identify any peer-reviewed scientific literature demonstrating toxic effects of
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PAH, at the concentrations observed in the vicinity of Bridge #146.
57. Claimant's expert also testified that PAHs pose a threat to animals such as raccoons, which eat aquatic organisms. However, this testimony was contradicted by Respondent's expert and other evidence which indicated that PAH concentrations appear to decrease in animals that are higher on the food chain.
58. Like the first expert for Claimant, Claimant's second expert (Dr. Baumann) had not visited Bridge #146 or sampled or surveyed biological, chemical or other field conditions in the vicinity of Bridge #146. He opined that the only way for a scientist to demonstrate detrimental effects on organisms would be to gather information regarding the specific organisms, such as their life span, the percentage that were actually developing tumors, how marginal their habitat was, how numerous they were and a variety of other site specific factors. Yet no evidence was produced by him or any of Claimant's other witnesses which documents any detrimental impact, much less the incidence of cancers or other diseases among the aquatic organisms in Pipe Creek. He was not even able to say with certainty what species of fish were present in Pipe Creek.
59. Claimant's second expert prepared a table for the purpose of determining the degree to which PAHs from Bridge #146 will cause cancers in fish in Pipe Creek. Based on this table, he concluded that the fish would likely have a cancer rate of eight to 25 percent as a result of the presence of the creosote treated bridge. His conclusions, however, are questionable for a number of reasons. First, his estimate of the percentage of carcinogenic PAHs in Pipe Creek is probably too high -- 25 percent as opposed to an apparent consensus of the scientific community that only five percent or less of the PAHs in creosote are carcinogenic.
60. More importantly, he failed to include or account for data from his own research on two rivers in the Great Lakes region, the Fox and Menominee Rivers, with sediment PAH concentrations much higher than those detected in Pipe Creek, yet with little or no incidence of fish cancer.
61. What is perhaps the most significant aspect of his testimony is that he agreed that there is a level of PAHs in the aquatic environment that would constitute a "bearable risk.". This appears to contradict the Claimant's other expert who indicated that in her opinion a single particle of the substance in the environment was an unacceptable risk.
62. Respondent's expert (Dr. Brooks), provided a significant amount of uncontested testimony, including the fact that the PAH concentrations measured in the vicinity of Bridge #146 are orders of magnitude below the EPA regulatory levels for the PAHs for which EPA has developed regulatory standards for sediment PAH concentrations.
63. Respondent's expert described the sediment PAH concentrations measured in Pipe Creek as follows: "These levels are less than what you find as background levels in almost any area you look at. If these levels were carcinogenic, then every body of water in the world would be carcinogenic. There is no documentation that these levels cause any concern whatsoever. They are one, or two, or sometimes three orders of magnitude less than those levels which are associated with the loss of biological integrity."
64. Respondent's expert visited Bridge #146 in March of 1996, and then immediately before the hearing in July 1996. He examined the bridge for signs of creosote leakage, including evidence of creosote drips on metal flashing and bolts or drip lines under bottom parts of beams. Based on his examination, Respondent's expert concluded that the wood used in the construction of Bridge #146 was well treated and that actual creosote loss from the bridge was minimal. He testified that he had examined dozens of creosote treated bridges and that Bridge #146 was one of the "cleanest" bridges he had ever seen. Claimant did not introduce any evidence to the contrary.
65. In addition to actually visiting the site, Respondent's expert has conducted specific research regarding environmental effects of creosote-treated wood. According to Respondent's expert, available studies and data indicate that at PAH levels less than 15-20 parts per million in sediment (which is several orders of magnitude greater than the levels that were actually measured in the Pipe Creek sediments) there is a poor correlation between observed cancers in aquatic organisms and sediment PAH loads.
66. Dr. Robert Waltz, director of the Department's Division of Entomology and Plant Pathology, agreed with Respondent's
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expert that the scientific literature has not established that creosote-treated wood structures cause any adverse biological effects.
67. Uncontested testimony by Respondent's expert indicates that PAH loss from treated wood is quite minute and decreases markedly over time. After 15 years, PAH loss decreases by a factor of about 10. Uncontested testimony by him also indicates that creosote degrades naturally in open aquatic environments in the presence of sufficient oxygen.
68. No evidence has been presented to show that sheens observed by Claimant in water adjacent to Bridge #146 are indicative of detrimental effects on fish, wildlife or botanical resources resulting from bridge construction using creosote treated wood.
69. Uncontested testimony by Respondent's expert indicates that sheens can result from minute quantities of creosote. He also testified that the hydrocarbons in sheens are isolated from the water column and are available for removal by evaporation and destruction by photo-oxidation.
70. Claimant's second expert testified that sheens and odor associated with a creosote bridge are largely composed of the shorter chain compounds without the carcinogens.
71. Moreover, substances other than creosote can cause sheens on or around Pipe Creek. Photographs of the surface of Bridge #146 in March 1996 showed a sheen on top of the road, possibly caused from drippage of crank case oil, gasoline on the road surface, or loss of organic substances from the asphalt road surface.
72. Uncontested testimony indicates that timber bridges have advantages over bridges constructed of other materials, particularly steel or concrete. Timber bridges can be built faster than steel or concrete bridges and do not result in as great an impact on the natural habitat.
73. . The president of the Cass County Commissioners, Mr. Harris, testified that timber bridges last longer than concrete bridges and can be constructed in 45 to 60 days, whereas a cement or steel bridge takes six to nine months. Approximately five years ago, Cass County began to use creosote-treated wood and timbers in bridge construction projects because timber bridges are also less costly to design, construct and maintain than bridges constructed of such alternative materials as steel and concrete. Cass County now has 11 creosote-treated wooden bridges. Throughout the State of Indiana, there are approximately 5,000 timber bridges on road systems.
74. It is uncontested that PAHs in sediments in the vicinity of Bridge #146 occur at extremely low concentrations, well below regulatory levels to the extent that those levels have been formulated.
75. It is uncontested that no PAH have been detected (down to a detection level of 3 parts per billion) in water in the vicinity of Bridge #146.
76. It is uncontested that no fish kills or other indications of toxicity or carcinogenicity or other adverse effects upon organisms in the vicinity of Bridge #146 have been observed.
77. Extrapolation using studies of adverse effects of high PAH concentrations in river bottom sediments from heavily polluted rivers in Ohio to the very low levels observed in Pipe Creek is inappropriate, particularly given the ubiquity of these substances and their occurrence at levels similar to those observed in Pipe Creek sediments in environments considered to be uncontaminated or pristine.
78. Claimant's expert's analysis of fish cancer risks associated with sediment PAH levels observed in Pipe Creek is not credible due to insupportable assumptions implicit in his analysis as well as his own research showing no detection of fish cancers in environments with PAH concentrations higher than those observed in the Pipe Creek sediments.
79. Claimant has not demonstrated any adverse effects on Pipe Creek associated with Bridge #146, let alone any unreasonable effect. Minute effects on the fish, wildlife, and botanical resources of Pipe Creek due to the presence of Bridge #146, if they exist, are not unreasonable under Ind. Code 14-28-1-22(e)(3), as defined by 310 IAC 6-1-3(24).
80. Uncontested testimony indicates that bridge construction using creosote-treated timbers has certain advantages, such as less physical impact on the natural environment during construction, which would offset minute effects of the use of creosote-treated timbers, if such effects exist.
81. In sum, Claimant has not shown, as she must to overturn the Department's issuance of Permit FW-16,608, that construction of Bridge #146 using creosote treated timbers will have an "unreasonably detrimental effect on the fish, wildlife or botanical resources of the area" in violation of Ind. Code 14-28-1-22(e)(3).