Environmental Law Update – 2018 Legislative Session Environmental Law Update – 2018 Legislative Session

Environmental Law Update – 2018 Legislative Session

While the 2018 Indiana legislative session generated no signature legislation in the environmental arena, a few bills contained noteworthy changes.  The following covers some of the highlights.

HEA 1233:  IDEM’s 2018 Omnibus Bill – Criminal Law Changes

IDEM’s Annual Omnibus bill, HEA 1233, expanded criminal liability and changed the criminal penalties associated with violations of Indiana’s environmental management statutes related to recordkeeping, air pollution control violations, water pollution control violations, and hazardous waste management violations. 

A.        Records Violations

IC 13-30-10 previously provided that any person who knowingly and intentionally “destroys, alters, conceals, or falsely certifies” a record required to be maintained under the terms of an air permit or a water pollution control permit commits a Class B misdemeanor. The new law expands criminal liability to anyone who “withholds” a “record, report, plan, or other document,” which raises the possibility that merely withholding a required document from IDEM could be grounds for criminal prosecution. Also, the new law states that anyone who “makes a false material statement, representation, or certification in any form, notice, or report” required under an air or water pollution control permit commits a Class B misdemeanor. 

B.        Air Violations

Previous versions of IC 13-30-10 provided that violations of certain provisions of the Indiana Code related to air pollution control constitute Class C misdemeanors. HEA 1233 expanded criminal liability to violations of rules promulgated by the Environmental Rules Board.  Additionally, the statute now makes it clear that a person who “knowingly” fails to file an application for an air permit commits a Class C misdemeanor. However, all references to Level 5 felonies (such as when the violation results in damage to the environment) have been repealed. 

C.        Water Violations

The previous version of IC 13-30-10-1.5 provided that anyone who “willfully or recklessly” violated Indiana’s water pollution control laws committed a Class A misdemeanor. HEA 1233 made several changes. First, the new law changed the “willfully or recklessly” standard to a “willfully or negligently” standard. “Negligently” is defined as follows:

For purposes of IC 13-30-10-1.5, a person acts "negligently" when:

(1) the person acts with a conscious and voluntary disregard for a standard of care that a reasonable person would exercise in the same circumstance;
(2) the consequence of the person's action is likely to cause foreseeable injury to human health or the environment; and
(3) the risk of the person's action causing foreseeable injury to human health or the environment is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in a similar circumstance.
 
In addition, whereas the previous version of IC 13-11-2-138.5 required a violation of the Indiana Code or of the provisions of an NPDES permit, the new statute provides that criminal liability can also be based on the violation of rules promulgated by the Environmental Rules Board.
 
D.        Hazardous Waste Violations

HEA 1233 also expanded criminal liability related to hazardous waste permitting, transportation, treatment, storage, disposal, and recycling. Under the new law, the definition of a Class B misdemeanor was expanded to anyone who knowingly and intentionally “makes a false material statement or representation in any label, manifest, record, report, or other document that is required to be maintained or filed.” 

E.        Criminal Fines

HEA 1233 increased most of the fines associated with criminal violations of Indiana’s environmental laws. In the past, misdemeanor fines for environmental violations were set at the same level as other misdemeanors under Indiana’s criminal statutes, as found in IC 35-50-3. HEA 1233 increased fines for most criminal violations of environmental laws and changed the phrasing of the law that establishes minimum and maximum fines. 

The new misdemeanor fine amounts are listed in Table 1 below. With two exceptions, the fines were increased dramatically. These fines are in addition to possible prison time.

In addition to the amounts of the fines, the new law may dramatically change the minimum and maximum fine levels. For instance, IC 35-50-3 provides that the fine for a Class B misdemeanor is “not more than one thousand dollars ($1,000).” That phrase is simple and straightforward and gives judges significant discretion in imposing fines.

However, the new statute uses entirely different language. So, for instance, IC 13-30-10-1(d)(1) states that a criminal violation of records requirements for air pollution control laws is now “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation.”  The intent of this change is unknown. $10,000 is clearly the maximum fine under the new statute, but the new phrasing raises some new questions. Does the phrase “not less than” establish $10,000 as the minimum fine? Will the addition of the phrase “per day per violation” open up the possibility of larger fines? Courts will likely need to resolve those issues.

Finally, HEA 1233 provides that if a person commits any environmental crime relating to water pollution control knowingly and knows that the act places another person in imminent danger of death or serious bodily injury, the crime is a Level 2, 3, or 4 felony depending upon whether a person is actually injured or killed.

Table 1 – Revised Fines Under HEA 1233

Violation Statute Prior Fine New Fine
Records Violations (Air) IC 13-30-10-1(a) and (b) “not more than one thousand dollars ($1,000)” “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation”
Records Violations (Water) IC 13-30-10-1(a) and (b) “not more than one thousand dollars ($1,000)” “a maximum amount of not less than five thousand dollars ($5,000) per day per violation”
Records Violations (Hazardous Waste) IC 13-30-10-1(c) “not more than one thousand dollars ($1,000)” “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation”
Hazardous Waste Management Violations IC 13-30-10-1.5(a) “not more than one thousand dollars ($1,000)” “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation.”
Air Pollution Control Violations IC 13-30-10-1.5(c) “a fine of at least five thousand dollars ($5,000) per day for each violation and not more than twenty-five thousand dollars ($25,000) per day for each violation” “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation”
Water Pollution Control Violations - general IC 13-30-10-1.5(e)(1), (2), and (3) “a fine of at least five thousand dollars ($5,000) per day for each violation and not more than twenty-five thousand dollars ($25,000) per day for each violation” “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation”
Water Pollution Control Violations (IC 13-18-8) IC 13-30-10-1.5(g) “a fine of at least five thousand dollars ($5,000) per day for each violation and not more than twenty-five thousand dollars ($25,000) per day for each violation” “not more than one thousand dollars ($1,000)”
Water Pollution Control Violations (IC 13-18-9, IC 13-18-10, or IC 13-18-10.5) IC 13-30-10-1.5(h) “a fine of at least five thousand dollars ($5,000) per day for each violation and not more than twenty-five thousand dollars ($25,000) per day for each violation” “not more than five hundred dollars ($500)”
 
HEA 1233:  IDEM’s 2018 Omnibus Bill - Other Changes

HEA 1233 contained additional changes to the state’s environmental management laws as well. The bill: 
  • States that drugs confiscated by law enforcement agencies may be disposed of and destroyed in any number of ways without the need for a separate approval, such as in cement kilns, electric arc furnaces, and incinerators. 
  • Brings clarity and consistency to the certification and renewal processes for operators of wastewater treatment plants, water treatment plants, and water distribution systems.
  • Explains the powers and status of solid waste management district officials once a district is dissolved. 
  • Directs the Environmental Rules Board to adopt rules for the disposal of sewage through the use of onsite sewage systems for municipalities and publicly-owned treatment works.
In addition, HEA 1233 urges the legislative council to assign to an interim study committee the issue of reducing non-point source impacts on water quality.

SEA 274:  UST Closures

SEA 274 changes the state’s underground storage tank (UST) laws. The former statute allowed IDEM to issue a temporary order to prohibit the use of an ineligible UST, but once the initial order expired, IDEM’s authority to take further action was unclear. SEA 274 amends the law to allow IDEM to reissue temporary orders and to order closure of a UST if the owner or operator of the UST fails to complete the corrective actions required to comply with IDEM’s orders.

HEA 1267:  Water Infrastructure Task Force

HEA 1267 creates the Water Infrastructure Task Force, which shall examine standards and best practices for maintaining and managing drinking water systems, wastewater management systems, and storm water management systems, and determine whether Indiana’s water infrastructure is achieving those standards. This includes long-term planning, examination of funding sources, determination of whether infrastructure improvements in these areas would enhance economic development, and determination of who should bear the financial burden of infrastructure improvements. The task force was also asked to create “an empirical decision making tool” to help policymakers prioritize water infrastructure funding. In addition, the bill directs the Indiana Finance Authority to retain an entity to study the needs of state and local government with regard to compliance with the National Pollutant Discharge Elimination System (NPDES) storm water program.

SEA 269:  Regional Water, Sewage, and Solid Waste Districts

SEA 269 requires a hearing officer presiding over a petition to establish a regional water, sewage, or solid waste district to give notice to any executive of a city or town with a municipal sewage works or a public sanitation department that has extraterritorial jurisdiction within the boundaries of the proposed district. Further, the new law requires that the board of a regional sewage district considering the addition of new territory must give notice to all governmental entities included in the proposed addition, as well as the executive of any city or town with a municipal sewage works or public sanitation department with extraterritorial jurisdiction in the proposed addition.

SEA 362:  Regulation of New Water and Wastewater Utilities

SEA 362 provides that any new water or wastewater utility organized as a legal entity after June 30, 2018 is subject to the jurisdiction of the Indiana Utility Regulatory Commission for a period of ten (10) years. The law also provides that before any loan or financial assistance is provided by the Wastewater Revolving Loan Fund or the Drinking Water Revolving Loan Fund, the participant must demonstrate it has the financial, managerial, technical, and legal capability of operating and maintaining a wastewater collection and treatment system and has developed or is in the process of developing an asset management program. 

Likewise, the law requires that before a permit is issued to operate a water treatment plant or wastewater treatment plant or a permit is amended for purposes of expanding an existing plant, the permit application must certify the applicant has completed a life cycle cost-benefit analysis, a capital asset management plan, and a cybersecurity plan. These plans must be reviewed and revised at least once every five (5) years. 

HEA 1120:  Meth Lab Cleanups Transferred to IDOH

The Legislature changed key provisions of Indiana law regarding properties used in the illegal manufacture of controlled substances (meth labs, for example). The Indiana State Police (ISP) will continue to be responsible for maintaining and publishing lists of such properties, and law enforcement agencies will be required to report such properties to the ISP, the local fire department, the local health department, and the Indiana criminal justice institute. However, the ISP will no longer maintain a list of certified inspectors and cleaners. Rather, HEA 1120 assigned authority to the Indiana Department of Health (IDOH) to establish a program to train, test, and certify qualified inspectors to decontaminate sites previously used to manufacture controlled substances illegally and to adopt rules for remediation standards. All rules, powers, duties, agreements, and liabilities of the Indiana Department of Environmental Management were transferred to IDOH.

SEA 178:  Taking Sand from Lake Michigan

SEA 178 provides that sand from the bed of Lake Michigan may only be deposited on the beach of Lake Michigan and may not be used for any other purpose. However, a permittee that dredges not more than ten (10) cubic yards of sand within a thirty (30) day period is exempt from that provision. Further, if any sand contains a toxic material or a substance that is potentially harmful to human health or the environment, it must be disposed of in a manner consistent with state hazardous waste management laws.

For more information, contact Don Snemis at donald.snemis@icemiller.com or (317) 236-2341, or another member of our Enivornmental/Natural Resources Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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