United States: Summary Of 2004 Environmental Legislation cont´d

The Legislature created a Methamphetamine Abuse Task Force ("Task Force"), which has as one of its purposes the development and updating of a strategic action plan for how to effectively clean up hazardous materials related to methamphetamine. This 26-member Task Force took effect on July 1, 2004. The members include:

• The superintendent of the state police or his designee.

• The commissioner of the state department of health or his designee.

• The state superintendent of public instruction or her designee.

• The commissioner of the department of environmental management or her designee.

• The director of the state emergency management agency or his designee.

• The secretary of family and social services or his designee.

• A judge, appointed by the governor.

• A prosecuting attorney, appointed by the governor.

• A county public defender, appointed by the governor.

• A sheriff from a county with a population less than 30,000, appointed by the governor, or the sheriff's designee.

• A sheriff from a county with a population greater than 100,000, appointed by the governor, or the sheriff's designee.

• A chief of police from a first or second class city, appointed by the governor, or the chief's designee.

• A chief of police from a third class city, appointed by the governor, or the chief's designee.

• One mental health professional with expertise in the treatment of drug addiction, appointed by the governor.

• A physician with experience in treating individuals who have been injured by an explosion or a fire in a methamphetamine laboratory or harmed by contact with methamphetamine precursors, appointed by the governor.

• One primary or secondary school professional with experience in educating children concerning the danger of methamphetamine abuse, appointed by the governor.

• One person representing a retail grocery, appointed by the governor.

• One person representing a retail pharmacy, appointed by the governor.

• One person representing a retail hardware store, appointed by the governor.

• One person representing convenience stores, appointed by the governor.

• One person representing retail propane gas dealers with experience in combating the sale of methamphetamine precursors, appointed by the governor. A representative of the farming industry with knowledge of the problem of theft of anhydrous ammonia for use in the manufacture of methamphetamine, appointed by the governor.

• An individual appointed by the speaker of the house of representatives.

• An individual appointed by the president pro tempore of the senate.

• A probation officer, appointed by the governor.

• A pharmaceutical manufacturer representative, appointed by the governor.

The superintendent of the state police department serves as the chairperson of the Task Force. The Task Force meets at the call of the chairperson. By October 31 of each year, the Task Force is to develop and update a longterm strategic action plan to combat illegal methamphetamine production and to protect Indiana citizens. The plan must recommend specific actions to be taken during the term of the plan, as well as specific actions to be taken in the longer term that are designed to accomplish the following:

1. lessen the demand for methamphetamine

2. decrease the supply of methamphetamine

3. improve the enforcement of methamphetamine laws

4. improve the ability of agencies to deal with social and health consequences of methamphetamine; and

5. improve the ability of agencies to timely and effectively clean up hazardous materials relating to methamphetamine.

The Task Force is to hold hearings around Indiana to obtain information regarding the nature of the problems and local initiatives to combat methamphetamine. The Task Force is required to invite experts to testify regarding issues the Task Force is studying.

The legislature also made a number of changes to Indiana’s Air Pollution Control law for the Vehicle Emission Inspection Program, when it overrode the Governor’s veto of HB 1798. First, the legislature added a definition of "periodic vehicle inspection program." That term is defined to include a program requiring a motor vehicle registered in a county to undergo a periodic test of emission characteristics and be repaired and retested if the motor vehicle fails the emission test. The term includes entering into and managing contracts for inspection stations. Second, the legislature provided that a person may not be charged any fee for having a motor vehicle tested as part of a periodic vehicle inspection program. Finally, the legislature removed the Air Pollution Control Board’s authority to adopt a rule to require Clark and Floyd Counties to have a motor vehicle periodic vehicle inspection program until at least December 31, 2006. After December 31, 2006, the Legislature requires that the Budget Agency must approve of the need for a periodic vehicle inspection program for Clark and Floyd Counties before the Air Board can impose such a program. Only if the Budget Agency determines that the implementation of a periodic vehicle inspection program is necessary to avoid a loss of federal highway funding for the state or a political subdivision of the State is it to be found to be needed.

 LAWS AFFECTING THE ENVIRONMENTAL QUALITY SERVICE COUNCIL

The Environmental Quality Service Council is given the following responsibilities as a result of legislation this year.

By November 1, 2004, submit to the Governor and to the Executive Director of the Legislative Services Agency a final report on the following:

• IDEM's implementation of the requirements of the new State Wetlands Regulatory Program;

• IDEM's compliance with the 120- day time frame for action on Water Quality Certifications;

• IDEM's role with respect to Water Quality Certifications under Section 401 of the Clean Water Act and whether statutory direction is appropriate or necessary to define IDEM's role;

• Consideration of the options for a statutory definition of private pond, as that term is used in the definition of waters, and a recommended option and the rationale for that option; and

• Recommended principles and policies for ameliorating tension between the program for wetlands protection and for local drainage, based on the rationale and objectives of both programs.

Before November 1, 2006, submit to the Governor and to the Executive Director of the Legislative Services Agency a report on the following:

• Implementation of the wetlands permit program; and

• Recommended adjustments to the wetlands program considered advisable to improve the operation and effectiveness of the program consistent with the purpose of providing an efficient permitting process and enhancing the attainment of an overall goal of no net loss of state regulated wetlands.

In addition, the House of Representatives passed a resolution urging the Legislative Council to assign to the Environmental Quality Service Council the topic of extending the age of vehicles in Clark and Floyd Counties that are exempt from auto-emission testing. The resolution suggested a study of extending the age from 4 to 6 years. If a committee is established to study this issue, the Resolution provides that the Committee’s final report is to be prepared when directed to do so by the Environmental Quality Service Council.

Existing law, which requires approval of each Governor of the Great Lakes States, before water can be diverted for a use in a state outside the Great Lakes Basin, became even more stringent on July 1, 2004. As of July 1, 2004, any diversion of water for a use even inside of Indiana can only be done if approved by each Governor of the Great Lakes States. The Natural Resources Commission is required to adopt rules necessary to implement this section. Those rules must be consistent with the Water Resources Development Act, 42 U.S.C. 1962d-20. That section of the Water Resources Development Act declares that the Great Lakes are an important natural resource to the eight Great Lakes States and two Canadian provinces in providing water supply for domestic and industrial use, clean energy through hydropower production, as an efficient transportation mode for moving products into and out of the Great Lakes region, and for recreational use. That law further provides that the Great Lakes need to be carefully managed and protected to meet current and future needs within the Great Lakes basin and Canadian provinces. Congress’ declared purpose and policy for the prohibition on Great Lakes diversions is to protect the limited quantity of water available for use by the Great Lakes States and to prohibit any diversion of Great Lakes water by any State or private entity for use outside the Great Lakes Basin, unless each Governor of each of the Great Lakes States approves of that diversion. Congress prohibited Federal agencies from undertaking any studies that would involve the transfer of Great Lakes water for any purpose for use outside the Great Lakes Basin. That law further provides that it does not apply to any diversion of water that already had been authorized before November 17, 1986. Nothing in 42 U.S.C. 1962d-20 provides any guidance on how the Governors are to evaluate proposals for use within the Great Lakes States. For that reason it will be important to follow the Natural Resource Commission’s rulemaking to understand how it interprets this new, more stringent requirement to obtain approval for diversions for use in the State of Indiana.

The Department of Natural Resources penalties for a number of its laws became more stringent on July 1, 2004. Specifically

1. Knowingly lowering of the water level of a 20-acre-or-larger lake by more than 12 inches below the high water make established by the dam has been increased from a Class C Infraction to a Class B infraction.

HEA 1203, SECTION 9, Ind. Code 14-26-6- 3, effective July 1, 2004, PL 71-2004.

2. Knowingly riding or driving upon or over a levee constructed under Ind. Code 14-27-2 (except for purposes of passing over the levee at a public or private crossing or upon a part of a public highway or for the purpose of inspecting or repairing the levee) has been increased from a Class C Infraction to a Class B Infraction.

   HEA 1203, SECTION 10, Ind. Code 14-27- 2-2, effective July 1, 2004, PL 71-2004.

3. A knowing violation of the public fresh water lake law has been increased from a Class C Infraction to a Class B Infraction.

   HEA 1203, SECTION 6, Ind. Code 14-26-2- 21, effective July 1, 2004, PL 71-2004.

4. Knowingly commencing construction of an abode or residence in violation of the floodway law requirement to first obtain a DNR permit has been increased from a Class C Infraction to a Class B Infraction.

   HEA 1203, SECTIONS 17,18 and 20, Ind. Code §§14-28-1-24, 14-28-1-25 and 14-28- 1-33, effective July 1, 2004, PL 71-2004.

5. A knowing failure to obtain a permit for construction the floodway is increased from a Class C Infraction to a Class B Infraction.

   HEA 1203, SECTION 20, Ind. Code 14-28- 1-33, effective July 1, 2004, PL 71-2004.

6. A knowing failure to post and maintain a copy of the permit issued for construction in the floodway at the site of the construction has been increased from a Class D Infraction to a Class B Infraction. 

   HEA 1203, SECTION 21, Ind. Code 14-28- 1-34, effective July 1, 2004, PL 71-2004. 

7. A knowing violation of the law regulating construction of channels has been increased from a Class C Infraction to a Class B Infraction.

   HEA 1203, SECTION 25, Ind. Code 14-29- 4-9, effective July 1, 2004, PL 71-2004.

In addition, the DNR laws were corrected to ensure that each violation that may be enforced as a criminal infraction requires the element of knowing. Specifically, all the following laws were revised to insert the requirement that the violation be a knowing violation before being subject to a penalty as an infraction:

1. Ind. Code 14-26-5-17, related to lowering of 10-acre lakes.

   HEA 1203, SECTION 8, Ind. Code 14-26-5- 17, effective July 1, 2004, PL 71-2004.

2. Ind. Code 14-27-7-7, related to a failure to effect maintenance, alteration, repair, reconstruction, change in construction or location, or removal within the time limit set in a Notice of Violation ("NOV") for dams, dikes and levees.

   HEA 1203, SECTION 12, Ind. Code 14-27- 7-7, effective July 1, 2004, PL 71-2004.

3. Ind. Code 14-27-7.5-13, related to failure to effect maintenance, alteration, repair, reconstruction, change in construction or location or removal within the time limit set in a NOV for a dam.

   HEA 1203, SECTION 15, Ind. Code 14-27- 7.5-13, effective July 1, 2004, PL 71-2004.

4. Ind. Code 14-28-1-24, related to beginning construction of an abode or residence in a floodway, violating a condition or restriction of permit for construction in a floodway and failure to post and maintain the permit at a reconstruction site.

   HEA 1203, SECTION 17, Ind. Code 14-28- 1-24, effective July 1, 2004, PL 71-2004.

5. Ind. Code 14-28-1-25 and Ind. Code 14-28-1-32, related to reconstructions of abodes or residences in a floodway.

   HEA 1203, SECTIONS 18 and 19, Ind. Code //14-28-1-25 and 14-28-1-32, effective July 1, 2004, PL 71-2004.

6. Ind. Code 14-28-1-33 and 14-28- 1-34, related to commencing construction in the floodway in violation of the requirement to first obtain a DNR permit.

   HEA 1203, SECTIONS 20 and 21, Ind. Code //14-28-1-33 and 14-28-1-34, effective July 1, 2004, PL 71-2004.

7. Ind. Code 14-29-3-4, related to taking sand, gravel, stone or other mineral or substance from or under the bed of navigable waters without a permit.

   HEA 1203, SECTION 24, Ind. Code 14-29- 3-4, effective July 1, 2004, PL 71-2004.

8. Ind. Code 14-29-4-9, related to violation of the law on construction of channels.

   HEA 1203, SECTION 25, Ind. Code 14-29- 4-9, effective July 1, 2004, PL 71-2004.

DNR’s enforcement provisions for a number of its programs also were changed July 1, 2004, to make violations subject to the penalty provisions of Ind. Code 14-25.5-4. That law allows DNR to: (1) revoke a permit issued, (2) order mitigation of violations, (3) assess civil penalties of not more than $10,000 a day for violation, (4) obtain court restraining orders and (5) seek criminal enforcement as a Class B Infraction. All of the following DNR programs are now enforceable under this penalty law:

1. Public Freshwater Lake Law, specifically DNR may use all of the above penalty provisions for violation of any provision of this law.

   HEA 1203, SECTION 4, Ind. Code 14-26-2- 19, effective July 1, 2004, PL 71-2004.

2. Public Freshwater Lake Law, specifically DNR may used its administrative and court enforcement provisions to recover damages resulting from a violation of the public freshwater law.

   HEA 1302, SECTION 5, Ind. Code 14-26-2- 20, effective July 1, 2004, PL 71-2004.

3. Public Freshwater Lake Law, specifically DNR may now fine $10,000 per day for a violation of law, which previously was limited to $1,000.

   HEA 1203, SECTION 7, Ind. Code 14-26-2- 22, effective July 1, 2004, PL 71-2004.

4. Floodway Regulation, specifically DNR may now fine $10,000 per day for violations of the floodway construction law.

   HEA 1203, SECTION 23, Ind. Code 14-28- 1-36, effective July 1, 2004, PL 71-2004.

Finally, DNR’s enforcement provisions for some of its programs changed July 1, 2004, allowing violations to be enforced pursuant to the provisions of Ind. Code 4-25.4-2. That law allows DNR’s inspectors a right to enter at reasonable times to determine if a violation exists. If a violation is found, DNR may issue a NOV, which becomes effective unless the person receiving it requests administrative review within 30 days of receipt. Finally, a person who fails to mitigate a violation within the time set in the NOV becomes liable for the civil penalty and the permit revocation sanc-tions found at Ind. Code 14-25.5-4. All of the following DNR programs are also now enforceable under this process:

1. Regulation of dikes and levees, specifically if DNR finds that a dike, floodwall, levee or appurtenance is not sufficiently strong, or being maintained in a good and sufficient state of repair or operating condition or is unsafe and dangerous to life or property.

   HEA 1203, SECTION 11, Ind. Code 14-27- 7-5, effective July 1, 2004, PL 71-2004.

2. Regulation of Dams, specifically when DNR finds a dam is not sufficiently strong, not maintained in a good and sufficient state of repair or operating condition, not designed to remain safe during infrequent loading events or unsafe and dangerous to life and property.

   HEA 1203, SECTION 14, Ind. Code 14-27- 7.5-11, effective July 1, 2004, PL 71-2004.

3. Floodway construction, specifically DNR may enjoin construction in a floodway by issuing a NOV, as described above.

   HEA 1203, SECTION 22, Ind. Code 14-28- 1-35, effective July 1, 2004, PL 71-2004.

The DNR’s law regulating dams was amended this year to allow persons potentially affected by an unregulated dam a procedure to have an investigation made to determine if the dam should be subject to the DNR regulatory program for dams. As of July 1, 2004, a property owner, the property owner’s representative or an individual who resides downstream from a structure over which DNR does not have jurisdiction can, if they believe the dam would cause a loss of life or danger to the person’s home, industrial or commercial building, a public utility, a major highway or a railroad if the structure were to fail, request that DNR declare the structure a high hazard structure. Upon DNR’s receipt of such a request, DNR must

1. investigate the structure and the area downstream,

2. notify the owner of the structure that it is being investigated,

3. review any written statements and technical documentation from any person, and

4. consider the available information

in order to determine whether or not the structure is a high hazard structure. DNR must then issue a written determination to the requesting individual and the owner of the structure, either of which may request administrative review within 30 days of the notice. If DNR determines that a previously unregulated structure is a high hazard structure, it becomes subject to the requirements of the law for high hazard structures.

HEA 1203, SECTION 16, Ind. Code 14-27- 7.5-16, effective July 1, 2004, PL 71-2004. 

In addition, the owner of a dam must now notify DNR in writing of the sale or other transfer of ownership of a structure. The notice must provide DNR with the name and address of the new owner. 

The Surface Coal Mining and Reclamation Act ("SCMARA") was amended this year to provide the Director of DNR the right to initiate an application for release of the bond posted to ensure reclamation. DNR is required to periodically inspect each mine for which bond had not yet been released. As rare as it is, there are some mined areas that have been reclaimed, but the permittee has not yet applied for bond release. DNR found it more resource effective to have this authority to initiate the bond release, than having to spend its resources performing inspections of fully reclaimed areas. If the DNR initiates the bond release, DNR is responsible for providing the notification and certification requirements otherwise imposed upon the permittee.

In addition, as a result of experience with the bond pool, which has been in existence now for more than 10 years, conditions and requirements applicable to that program were revised in three ways. First, operators who initially elect to par-ticipate in the bond pool are no longer irrevocably committed to use of the bond pool for its bonding obligations. Effective July 1, 2004, permittees may opt out of the bond pool by replacing all bond pool liability with bonds acceptable under SCMRA. When the bond pool was first created there was a reason to keep permittees in the fund to build up that fund up through fees that had to be paid. With time and participation the bond pool now has more persons wanting to participate than can be supported. By allowing persons who want out of the bond pool this option to get out, it will allow others who wish to use it the opportunity.

Second, the right to use the bond pool may be terminated by the Director if the final bond release has not been obtained within 10 years after the date of the last required report of the affected area. If the Director requires the operator to withdraw from the bond pool fund, the operator must replace the bond pool liability with bonds acceptable under SCMARA. If an operator fails to comply with the Director’s order to withdraw an area from the bond pool, the Director may then suspend the operator from the bond pool, which automatically results in a requirement to cease all surface coal mining operations.

Third, the surface coal mining bond pool committee membership qualification has been modified in ways that will make it easier to have members appointed, easier to find members to serve and in a way that will allow for the best qualified persons to serve. As of July 1, 2004, appointment of the members to the committee will now be made by the Director of DNR, not by the Governor. Delays result when the Governor is required to appoint committee members, simply because the Governor has so many boards to which he must appoint members. With the change allowing the Director of DNR to make the appointments, appointments should be able to be made quicker. The law no longer requires that the fivemember committee have a three-to-two split between political parties. This effectively removes any need to inquire into the political affiliation of the members. The public representative is no longer required to be a certified public accountant. Instead that public representative member must have knowledge of reclamation performance guarantees, which experience has been shown to be what is most important for members. Finally, a member is no longer limited to two four-year terms. Members may be reappointed to as many four-year terms as the Director of DNR determines. In addition to these changes to the committee and the appointing authority, the Legislature also relaxed the reporting obligations of the Director of DNR to annually, instead of semiannually. That written report from the Director is given to the Committee and to the Governor on the status of the bond pool.

Conservancy districts may be created for any of the following purposes:

1. Flood prevention and control;

2. Improving drainage;

3. Providing for irrigation;

4. Providing water supply, including treatment and distribution, for domestic, industrial, and public use;

5. Providing for the collection, treatment, and disposal of sewage and other liquids wastes;

6. Developing forests, wildlife areas, parks, and recreational facilities, if feasible in connection with beneficial water management;

7. Preventing the loss of topsoil for injurious water erosion;

8. Storage of water for augmentation of stream flow;

9. Operation, maintenance, and improvement of any improvement built for any of the purposes authorized above.

The law for Conservancy Districts was amended effective July 1, 2004, in three ways. First, the special provision governing the expansion of a Conservancy District located in Hendricks County was repealed. Second, when a vacancy on the Board of a Conservancy District occurs, the law now allows the District Board to vote to appoint a member to serve until the next annual meeting. Previously, the County Commissioners were the ones who temporarily filled that vacancy. If a vote of the District Board to appoint the member results in a tie, a judge of the circuit court of the county in which the district was established shall designate a person to serve as a member until the next annual meeting. Finally, the law was changed to provide that after a vacancy occurs, a director shall be elected to complete the term at the next annual meeting after the vacancy occurred. At the annual meeting, all freeholders who are present are allowed to vote. Between October 24 and November 1, the District Board invites nominations to fill vacancies by publication in a newspaper of general circulation in each county in the district. Nominations for director must be submitted in writing before December 1 and be signed by at least five freeholders from the area for which a director is to be elected. Notice of the annual meeting of the district must be given by publication in a newspaper of general circulation in each county in the district at least 14 and not more than 31 days before the annual meeting. Each freeholder is entitled to one vote.

Legislation was passed this year to specifically exempt certain on-site sewage systems (more commonly referred to as a septic tank and finger system) from the nitrate and nitrite groundwater quality standards. This exemption took effect on March 16, 2004. In addition IDEM and the Department of Health are required by this Legislation to study the effect of nitrates and nitrites in drinking water and public health in order to determine the advisability of continuing this exemption.

For purposes of this exemption, an on-site sewage system is defined as all equipment and devices necessary for proper on-site conduction, collection, storage and treatment and adsorption into the soil of sewage from a residential or commercial facility. Onsite "residential" sewage discharge disposal system is a defined term, which includes service to one or two residences. "Commercial" facility is not defined in either Ind. Code 13-11 or Ind. Code 13- 18-17. It is not clear whether industrial septic tanks or government-operated septic tanks are intended to be exempt from the nitrite and nitrate groundwater quality standard, nor how the Department of Health will interpret the breadth of this exemption.

The legislature barred the Executive Board of the State Department of Health from adopting numerical criteria included in the groundwater quality standards to these onsite sewage system. The legislature also voided any rule that already had been promulgated to apply these nitrate and nitrite numerical criteria in the groundwater quality standards to these septic tank systems. By January 1, 2009, a report is to be submitted by IDEM and the Department of Health to the Governor, to the Executive Director of the Legislative Services Agency and to the Environmental Quality Services Council. This report must include the following:

• A review of literature and recent research into the effects of nitrites and nitrates in drinking water on public health, the effect of on-site sewage systems on the level of nitrites and nitrates in groundwater, the movement of nitrites and nitrates in soils, and on-site sewage system technologies available to achieve compliance with the current IDEM groundwater standards for nitrites and nitrates;

• The impact if newly installed onsite sewage systems were required to comply with the nitrates and nitrites numerical criteria of the groundwater quality standards, including the number of residential and commercial facilities that would be affected and the associated cost.

HEA 1017, SECTIONS 5-7, Ind. Code //13- 11-2-144.8 and 13-18-17-5, effective March 16, 2004, PL 24-2004. 

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