On Nov. 13, the Indiana Department of Environmental Management (IDEM) issued Nonrule Policy Document No. MP-008-NPD to express its interpretation of the corrective action requirements under the federal Resource Conservation and Recovery Act (RCRA) and the parallel authority under Indiana law for subsequent owners of former hazardous waste treatment, storage or disposal facilities.
Notably, this Nonrule Policy does not change any corrective action requirements for any person or entity who applied for a permit to operate a hazardous waste facility, received such a permit, or should have applied for and received such a permit. As to those individuals, IDEM retains its authority to issue corrective action orders even after the facility ceases its operations. The Nonrule Policy is guided by the statutory language of RCRA and applicable cases deciding similar issues, of which I discuss in more detail in an article I recently published.
IDEM’s Nonrule Policy is an important step in the right direction for subsequent owners of former RCRA facilities in Indiana. Additionally, IDEM’s Nonrule Policy is also favorable for brownfield redevelopment, as there are no parallel bona fide prospective purchaser protections under RCRA to those found in CERCLA.