By: Erik S. Mroz
With just a little over a month left in the 2021 Indiana legislative session (set to adjourn on April 29, 2021), it is a good time to peek behind the curtain to see what our elected representatives are up to. The Assembly has been working on several bills this session that could (if passed) have a lasting effect on Indiana’s environmental laws and practice. Here is a quick summary of some of the bills currently under consideration:
1.Senate Bill 411 – Specifically allows civil nuisance actions seeking monetary or injunctive relief in response to the permitted discharge of pollution. If passed, the bill would require a plaintiff to prove certain damages by “clear and convincing evidence” and specifies that “stigma damages,” defined in the bill as the “diminution of the value of real property resulting from a permitted discharge,” are not recoverable. A companion bill has been introduced in the House (HB 1380). The latest version of the Senate bill can be found here. The current House bill is here.
2.Senate Bill 389 – Repeals wetlands protection law governing isolated wetlands within the State (state regulated wetlands). If enacted, the law would not affect the regulation of wetlands subject to federal jurisdiction under the Clean Water Act, 33 U.S.C. § 1251, et seq., nor would it relieve the State from administering the National Pollutant Discharge Elimination System permit program. The latest version of the bill can be found here.
3.Senate Bill 367 – Allows for a rule prohibiting the disposal of coal combustion residuals at facilities located: (1) within the 500-year flood zone; (2) where the waste could come into contact with groundwater; or (3) where there is the potential for migration of hazardous constituents. The bill would also empower the Indiana Utility Regulatory Commission (“IURC”) to review an electric utility’s plan to close coal combustion waste impoundments and allows the IURC to recover certain costs. The latest version of the bill can be found here.
4.House Bill 1559 – Requires IDEM to develop and maintain an online database of “potentially contaminated properties” to include the following: (1) former or existing hazardous waste facilities; (2) sites listed in the Comprehensive Environmental Response, Compensation, and Liability Information System (“CERCLIS”); (3) sites with an underground storage tank (“UST”); (4) sites where groundwater contamination has been detected; (5) sites undergoing remediation under an agency program; and, (6) drug labs. The latest version of the bill can be found here.
5.House Bill 1151 – Requires a person who engages in an activity that results in the spill of certain specified materials, including hazardous substances and petroleum, into the waters of the State, to report the spill immediately to IDEM, the County Health Department, water users five miles upstream and twenty-five miles downstream, an emergency response agency, and each public park located in the county where the spill occurred. The bill specifies that failure to meet the reporting requirement could result in civil penalties and possibly criminal charges. The latest version of the bill can be found here.
The Senate is also considering House Bill 1436 regarding administrative proceedings before State agencies. Many environmental and natural resources cases are pending before State agencies. This makes HB 1436 very relevant to practitioners and the regulated community. If enacted, HB 1436 would mandate that Administrative Law Judges (“ALJ”) order State agencies to pay the reasonable attorney fees incurred in the proceeding by the party challenging agency action upon a finding that the agency action was: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) contrary to a constitutional right or immunity; (3) in excess of statutory jurisdiction or authorization; (4) without observance of legal procedure; or, (5) not supported by substantial evidence. The current version of the bill can be found here.
For questions about Indiana’s environmental protection laws, please contact your DSV attorney.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***