The Indiana General Assembly addressed several environmental matters in House Enrolled Act 1162 (HEA 1162), which contains a number of significant changes to the current Indiana environmental statutes.
Among other things, HEA 1162 requires that cleanups in all Indiana Department of Environmental Management (IDEM) programs be consistent with the language of the Voluntary Remediation Program, which requires consideration of certain factors to determine remediation objectives and site characterization. These factors include: (1) the expected future use of the site, (2) measurable risks and (3) institutional controls such as environmental restrictive covenants and ordinances. In addition, the bill requires IDEM to give consideration to restrictive covenants and environmental restrictive ordinances in evaluating any risk-based remediation proposals. Practically speaking, these provisions will promote risk-based remediation by recognizing unique factors and determining remediation objectives suited to the unique conditions of each site.
Covenant Not to Sue/Owner and Operator Definitions
HEA 1162 addresses IDEM’s Covenant Not to Sue and Certificate of Completion policy by confirming that future liability may not be precluded for a condition that was present on property at issue at the time IDEM issued the Certificate of Completion. In addition, the new law would permit IDEM to include conditions in the Certificate of Completion or Covenant Not to Sue that must be performed at a later date after issuance of the covenant. The law also amends the definition of “operator” and “owner” under current Indiana environmental law to include exemptions under Section 107 of CERCLA (42 U.S.C. 9607).
Restrictive Covenants and Ordinances
The new law also addresses environmental restrictive covenants by requiring the Environmental Quality Service Council to conduct a study and develop recommendations on establishing an institutional control registry and environmental trust fund to pay for such registry. The law does address environmental restrictive covenants and ordinances in a variety of ways, including requiring that covenants executed after July 1, 2009, must grant IDEM access to the land. Further, it requires that any IDEM file applicable to the site be made known. The law also allows municipalities to limit, regulate or prohibit withdrawal, human consumption and other uses of groundwater, as well as give municipalities the ability to enact and enforce environmental restrictive ordinances. Prior to amending or repealing any restrictive ordinance, the law requires notice to IDEM.
Total Maximum Daily Load
Lastly, the new law makes several changes to the Total Maximum Daily Load (TMDL) and antidegradation procedures for impaired water of the state and adds specific social and economic factors IDEM must consider in antidegradation determinations for new discharges that lower water quality.
Overall, the most significant changes in this new law relate to addressing IDEM’s recent policy shift to require removal or remediation of contamination without serious consideration of expected future use of the site and overall risk. The new law clarifies instead that remediation objectives must take into consideration not only the expected future use of the site but also measurable risks and the potential use of institutional controls and therefore moves away from the recent policy shift to automatically require removal or remediation without a consideration of risk related factors.