The Indiana General Assembly made a number of significant changes to current Indiana environmental statutes in House Enrolled Act 1162 (HEA 1162) this session. A noteworthy change includes the addition of "risk means risk" language into the statute governing the Voluntary Remediation Program (VRP). The General Assembly was likely reacting to recent policies of the Indiana Department of Environmental Management (IDEM) that disfavored institutional controls in lieu of removal and active remediation regardless of site specific risk factors. The new language in HEA 1162 essentially requires IDEM, when determining the remedial plan, to consider site specific factors, including for example, environmental restrictive covenants and ordinances, the likelihood of complete exposure pathways and the future use of the property. To include ongoing cleanups that may have been affected by IDEM's recent policies, the requirement applies to sites regardless of whether they were brought into the VRP before July 1, 2009, the effective date of HEA 1162.
What did not end up in the bill is also worth mentioning. After much discussion during the session, the General Assembly decided to have the environmental quality service council further evaluate whether to establish an institutional control registry, and if so, how it should be funded. Restrictive covenants were a hot topic this session, and HEA 1162 also redefines restrictive covenants and defines restrictive ordinances. The law clarifies that IDEM does not have the authority to approve or enforce restrictive covenants executed after June 30, 2009, unless they are part of an IDEM cleanup, in enforcement or part of a determination of no further action being required. HEA 1162 requires that restrictive covenants executed after June 30, 2009: (1) allow IDEM access to the property; (2) direct interested persons to any applicable IDEM file; and (3) provide notice of the existence of a restrictive covenant to a transferee of the land or an interest in the land. The law allows municipalities to enact an environmental restrictive ordinance that regulates or prohibits the use, consumption or withdrawal of groundwater.
The law potentially adds another layer to certain permit approvals. Previously, under Ind. Code 13-15-3, upon receipt of a permit application IDEM would send a notice to the appropriate county, city or town council. The permitted entity could begin construction, installation, operation or modification of any facility, equipment or device when it received IDEM approval. Under the new law, if the local municipality has an existing applicable law or regulation, the permitted entity must also get local approval before IDEM will issue the permit.
HEA 1162 allows IDEM to include conditions that must be performed or maintained after issuance of the certificate in a Certificate of Completion. The law confirms that a Covenant Not to Sue does not preclude future liability for a condition present at the time the Covenant was issued. HEA 1162 also amends the definition of “operator” and “owner” under current Indiana law to include exemptions from Section 107(q) and (r) of CERCLA (42 U.S.C. 9607(q) and 9607(r)). Finally, the 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.