Indiana Environmental Law Handbook (State Environmental Law Handbook)

R h INDIANA L.:-! ENVIRONMENTAL LAW HANDBOOK By the Law Firm of Barnes & Thornburg Authors Laurence A. McHugh Rich...

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R h INDIANA

L.:-!

ENVIRONMENTAL LAW HANDBOOK

By the Law Firm of

Barnes & Thornburg Authors

Laurence A. McHugh Richard W. Paulen Deborah A. Lawrence Guinn P.Doyle Jean L. Doyle Julie S. Camiff

Government Institutes

Published in the United States of America by Government Institutes, an imprint of The Scarecrow Press, Inc. A wholly owned subsidiary of The Rowrnan & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, Maryland 20706 www.govinstpress.com Estover Road, Plymouth PL6 7PY, United Kingdom Copyright O 1992 by Government Institutes. All rights reserved.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher.

The reader should not rely on this publication to address specific questions that apply to a particular set of facts. The author and the publisher make no representation or warranty, express or implied, as to the completeness, correctness, or utility of the information in this publication. In addition, the author and the publisher assume no liability of any kind whatsoever resulting from the use of or reliance upon the contents of this book. British Library Cataloguing in Publication Information Available

Library of Congress Cataloging-in-Publication Data ISBN-13: 978-0-86587-307-0 (pbk : alk. paper) ISBN-10: 0-86587-307-0 (pbk : alk. paper)

e m ~ hpaper e used in this publication meets the minimum requirements of American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSIINISO 239.48-1992. Manufactured in the United States of America.

CONTENTS

............................................. ABOUTTHEAUTHORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PREFACE

...

xi11 xiv

CHAPTER 1

INTRODUCTION

................. 2.0 INDIANA ENVIRONMENTAL AGENCIES . . . . . . . . . . . . . . . . . . . 3.0 DEPARTMENT OF ENVIRONMENTAL MANAGEMENT . . . . . . . . . . 3.1 HISTORICAL DEVELOPMENT . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 AIR POLLUTION CONTROL BOARD . . . . . . . . . . . . . . . . . . . . . . 1.0

INDIANA ENVIRONMENTAL PHILOSOPHY

........................................ 4.2 RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 ADJUDICATORY POWERS OF THE BOARD . . . . . . . . . . . . . . . . 5.0 WATERPOLLUTIONCONTROLBOARD . . . . . . . . . . . . . . . . . . . . 5.1 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1

POWERS

.......................... 5.3 ADJUDICATORY POWERS OF THE BOARD . . . . . . . . . . . . . . . . 6.0 SOLID WASTE MANAGEMENT BOARD . . . . . . . . . . . . . . . . . . . . 5.2

RULEMAKING AUTHORITY

........................................ 6.2 RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 ADJUDICATORY POWERS OF THE BOARD . . . . . . . . . . . . . . . . 7.0 STATE BOARD OF HEALTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.0 DEPARTMENT. OF NATURAL RESOURCES . . . . . . . . . . . . . . . . . . 8.1 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 ADJUDICATORY AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . 6.1

POWERS

9 10 10 11 12

CHAPTER 2 AIR POLLUTION CONTROL 1.0

1.1 2.0

.................................... CLEAN AIR ACT AMENDMENTS OF 1990 . . . . . . . . . . . . . . . . .

13

......

13

...................... PERMITTING PROCEDURES FOR STATIONARY SOURCES . . . . . . .

14 14

APPLICABILITY OF CONSTRUCTION AND OPERATING PERMIT REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

INTRODUCTION

AGENCIES RESPONSIBLE FOR AIR POLLUTION CONTROL

2.1 3.0 3.1

LOCAL AGENCY INVOLVEMENT

........................... ..............................

13

3.2

CONSTRUCTION PERMITS

16

3.3

OPERATING PERMITS

18

3.4

CONSTRUCTION AND OPERATING PERMIT FEES

3.5

REVOCATION OF EXISTING PERMITS

3.6

APPEAL OF PERMIT DENIALS, REVOCATIONS OR CONDITIONS

4.0

...........

20

...................

20

.

21

PREVENTION OF SIGNIFICANT DETERIORATION REQUIREMENTS .

21

4.1

APPLICABILITY

...................................

21

4.2

.................................. PERMIT APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22

............................. 5.1 APPLICABILITY OF STANDARDS . . . . . . . . . . . . . . . . . . . . . . . 5.2 CONSTRUCTION PERMIT REQUIREMENTS . . . . . . . . . . . . . . . . 5.3 EMISSION OFFSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 USE OF THE "BUBBLE" APPROACH . . . . . . . . . . . . . . . . . . . . . . 7.0 NEW SOURCE PERFORMANCE STANDARDS . . . . . . . . . . . . . . . .

24

8.0

NATIONAL EMISSION STANDARDS FOR HAZARDOUS POLLUTANTS

30

9.0

EMISSION LIMITATIONS FOR SPECIFIC TYPES OF OPERATIONS

..

31

REGULATION OF SPECIFIC AIR CONTAMINANTS . . . . . . . . . . . . .

31

.............................. 10.2 SULPHUR DIOXIDE RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 OZONE AND VOLATILE ORGANIC COMPOUND RULE . . . . . . . . 10.3.1GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 MOTOR VEHICLE EMISSION REGULATIONS . . . . . . . . . . . . . . .

31

4.3

5.0

10.0 10.1

REQUIREMENTS

NONATTAINMENT AREAS

PARTICULATE RULES

22 24

26 27

28 30

32 32 32 33

10.4

CARBON MONOXIDE EMISSION RULES

10.5

LEADRULES

11.0

..................

....................................

MONITORING. RECORD KEEPING AND REPORTING REQUIREMENTS MONITORING REQUIREMENTS

1 1.1

........................

................................. 11.3 REPORTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.0 ASBESTOS REGULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.0 ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2

RECORD KEEPING

CHAPTER 3 WATER POLLUTION CONTROL

.................................... 2.0 INDIANA NPDES PERMIT PROGRAM . . . . . . . . . . . . . . . . . . . . . . 2.1 GENERAL NPDES REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . 2.2 PERMIT PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 DRAFT PERMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

.................................. 2.2.3 PUBLIC HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41

...........

42

1.0

INTRODUCTION

2.2.2PUBLICNOTICE

2.2.4 FINAL DECISION AND ADJUDICATORY HEARING

2.2.5 MODIFICATION. REVOCATION AND REISSUANCE. AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 2.4 2.5 2.6

....... TECHNOLOGY BASED EFFLUENT LIMITATIONS . . . . . . . . . . . . VARIANCES AND ALTERNATIVE LIMITS . . . . . . . . . . . . . . . . . SPECIAL NPDES PROGRAMS AND GENERAL PERMITS

PRETREATMENT STANDARDS FOR DISCHARGES TO PUBLICLY OWNED TREATMENT WORKS . . . . . . . . . . . . . . . . .

............ 2.6.2 REMOVAL CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 STATE WATER QUALITY STANDARDS . . . . . . . . . . . . . . . . . . . . . 3.1 TOXIC WATER QUALITY STANDARDS . . . . . . . . . . . . . . . . . . . 2.6.1 INDUSTRIAL WASTE PRETREATMENT PERMITS

39 39 40 40 41

42 43 44 44 44 46 46 47 47

3.3 4.0 5.0 6.0

SPILLS OF OIL AND OTHER OBJECTIONABLE SUBSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

CONSTRUCTION OF WASTEWATER TREATMENT FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50

LAND APPLICATION OF SEWAGE SLUDGE ANDWASTEWATER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50

.............................

51

PUBLIC WATER SUPPLIES

CHAPTER 4 WATER RIGHTS AND RESOURCES

.................................... 2.0 SURFACEWATER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 NATURALSTREAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54

..................................

56

1.0

INTRODUCTION

54 55

2.2

SURFACEDRAIN

2.3

NATURAL. SCENIC. AND RECREATIONAL RIVER SYSTEM . . . . .

57

2.4

.............................. GROUNDWATER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

58

............................

59

....................... 3.3 POTABLEWATER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 NAVIGABLE WATERWAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 CONSTRUCTION OF CHANNELS . . . . . . . . . . . . . . . . . . . . . . . 5.0 LAKES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 PUBLIC FRESHWATER LAKES . . . . . . . . . . . . . . . . . . . . . . . . .

60

3.0

3.1 3.2

RIVER COMMISSIONS

RESTRICTED USE AREAS

GROUNDWATER EMERGENCIES

58

62 62 63

64 64

5.2

LOWERING OF LAKE LEVEL BY DITCHES OR DAMS

64

5.3

CHANGES OF LEVELS

......... ..............................

66

....................................... DAMS, DIKES, LEVEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67

.................

68

................................... 8.1 FLOOD PLAIN COMMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 FLOODCONTROLREVOLVINGFUND . . . . . . . . . . . . . . . . . . . 9.0 PRESERVATION SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68

6.0 7.0 7.1 8.0

WETLANDS

LEVEES: MISCELLANEOUS PROVISIONS FLOODCONTROL

67

69 70 70

CHAPTER 5 SOLID WASTE MANAGEMENT

.................................... 2.0 APPLICABILITY OF REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . 2.1 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 PRE-FEBRUARY 10. 1989 FACILITIES . . . . . . . . . . . . . . . . . . . . 1.0

INTRODUCTION

................... 2.4 PENDING APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 REGULATED ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3

POST-FEBRUARY 10, 1989 FACILITIES

........................... 3.1.1 SOLID WASTE LAND DISPOSAL FACILITIES . . . . . . . . . . . . . . . 3.1.2 INDUSTRIAL ON-SITE FACILITIES . . . . . . . . . . . . . . . . . . . . . . 3.1.3 INCINERATOR FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4 SOLID WASTE PROCESSING FACILITIES . . . . . . . . . . . . . . . . . . 3.2 PROHIBITED ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 EXCLUDED ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 SOLID WASTE LAND DISPOSAL FACILITIES . . . . . . . . . . . . . . . . 3.1

SOLID WASTE FACILITIES

....................... 4.2 SITING AND DESIGN OF FACILITIES . . . . . . . . . . . . . . . . . . . . 4.1

CLASSIFICATION OF FACILITIES

4.3

FINANCIAL RESPONSIBILITY FOR FACILITIES

4.4

CLOSURE AND POST-CLOSURE REQUIREMENTS FOR FACILITIES

5.0

.............

........................... ...................................

PERMITTING OF FACILITIES

5.1

APPLICABILITY

.................. 5.2.1GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 NEED REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5.2

PERMIT APPLICATION REQUIREMENTS

5.3

.................... SOLID WASTE LAND DISPOSAL FACILITIES . . . . . . . . . . . . . . . SOLID WASTE PROCESSING FACILITIES . . . . . . . . . . . . . . . . . . PERMIWING PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5.4

TRANSFER OF PERMITS

5.2.3 GOOD CHARACTER REQUIREMENTS 5.2.4 5.2.5

............................. vii

.............................

88

OPERATING REQUIREMENTS FOR FACILITIES

...............

88

6.1

SOLID WASTE LAND DISPOSAL FACILITIES

...............

88

6.2

SOLID WASTE PROCESSING FACILITIES . . . . . . . . . . . . . . . . . .

90

5.5 6.0

RENEWAL OF PERMITS

7.0

REPORTING REQUIREMENTS

90

8.0

ENFORCEMENT

........................... ....................................

91

.................................... 10.0 OPERATOR AND GENERATOR LIABILITY . . . . . . . . . . . . . . . . . . 10.1 CORRECTIVE ACTION REQUIREMENTS . . . . . . . . . . . . . . . . . . 10.2 INNOCENT OWNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

92

9.0

SPECIAL WASTE

11.0

CREATION OF SOLID WASTE MANAGEMENT DISTRICTS AND SOLID WASTE MANAGEMENT PLANS . . . . . . . . . . . . . . . . . . . . .

93 93

94 95

CHAPTER 6 HAZARDOUS WASTE MANAGEMENT

3.0

.................................... GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REQUESTS FOR INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . .

101

4.0

BUSINESS CONFIDENTIALITY

..........................

102

.................. ORIGIN OF BUSINESS CONFIDENTIALITY PROTECTION . . . . . . .

102

1.0 2.0

INTRODUCTION

4.1

GENERALLY APPLICABLE PROVISIONS

4.2 4.3

SUBSTANTIVE REQUIREMENTS FOR DETERMINATION OFCONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.4

........................ ......................................

PROCEDURAL REQUIREMENTS

5.0

DEFIWIONS

6.0

RULEMAKING PETITIONS; EXEMPTIONS; ADDITIONAL REGULATION OF CERTAIN HAZARDOUS WASTE ACTIVITIES

7.0

99 100

103 104 104 106

....

107

SUBSTANTIVE HAZARDOUS WASTE RULES . . . . . . . . . . . . . . . . .

107

7.1

IDENTIFICATION AND LISTING OF HAZARDOUS. WASTE

......

108

7.2

STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . . . . . . . . .

108

..................................... REPORTING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . .

7.2.1 MANIFESTS

108

7.2.2

109

viii

7.3

STANDARDS APPLICABLE TO TRANSPORTERS

.............

109

7.4

FINAL PERMIT STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT. STORAGE AND DISPOSAL FACILITIES (TSDFs) . . . . . . . . . . . . . . . . . . . . . . . .

109

INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OFTSDFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

110

STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND TYPES OF HAZARDOUS WASTE MANAGEMENT (HWM) FACILITIES . . . . . . . . . . . . . . .

110

7.5

7.6

7.7 8.0

. . . . . . . . . . . . . . . . . . . . . . . . 111 STATE ADMINISTERED PERMIT PROGRAM . . . . . . . . . . . . . . . . . 111 LAND DISPOSAL RESTRICTIONS

8.1

GENERAL APPLICATION REQUIREMENTS

................

111

8.2

MODIFICATION. REVOCATION AND REISSUANCE. AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

112

....................................

112

FINANCIAL ASSURANCE REQUIREMENTS FOR INTERIM STORAGE AND FINAL PERMIT FACILITIES . . . . . . . . . . . . . . . . .

113

8.3 9.0

PROCEDURES

CHAPTER 7 HAZARDOUS SUBSTANCE AND PETROLEUM RESPONSE AUTHORITIES (INDIANA SUPERFUND)

.................................... 2.0 HAZARDOUS SUBSTANCES RESPONSE TRUST FUND . . . . . . . . . . 2.1 PURPOSES OF FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0

2.2 2.3 2.4

2.5

INTRODUCTION

............................... ACCESS TO INFORMATION AND PROPERTY . . . . . . . . . . . . . . . LIABILITY FOR COSTS AND DAMAGES . . . . . . . . . . . . . . . . . .

SOURCESOFFUNDS

ORDERS OR ACTIONS TO COMPEL REMOVAL OR REMEDIAL ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.............. 2.7 CONSENT AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 RESTRICTIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 PETROLEUM RELEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 PETROLEUM FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6

COST RECOVERY AND PUNITIVE DAMAGES

115 115 115 115 116 117 117 118 118 119 119 119

................................. 3.3 INFORMATION AND ACCESS . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 ORDERS FOR REMOVAL OR REMEDIAL ACTION . . . . . . . . . . . 3.5 LIABILITY OF LENDERS AND FIDUCIARIES . . . . . . . . . . . . . . . 4.0 ENVIRONMENTAL LIEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2

PERSONS LIABLE

CHAPTER 8 UNDERGROUND STORAGE TANKS

....................................

1.0

INTRODUCTION

2.0

INDIANA UNDERGROUND STORAGE TANK STATUTE

.........

2.2

........ UST REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.3

TECHNICAL REQUIREMENTS

2.1

DEFINITION OF AN UNDERGROUND STORAGE TANK

2.4 2.4.1 2.4.2

......................... FINANCIAL RESPONSIBILITY REQUIREMENTS . . . . . . . . . . . . . PER OCCURRENCE AND AGGREGATE AMOUNTS . . . . . . . . . . . METHODS OF ESTABLISHING FINANCIAL RESPONSIBILITY . . . . ....................... ..............................

2.4.3 SUSPENSION OF ENFORCEMENT

2.5

CORRECTIVE ACTION

2.6

RECORD KEEPING AND INSPECTION

2.7

FINES AND PENALTIES

2.8

UNDERGROUND PETROLEUM STORAGE TANK TRUST FUND AND UNDERGROUND PETROLEUM STORAGE TANK EXCESS LIABILITYFUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.................... .............................

CHAPTER 9 EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW

....................................

1.0

INTRODUCTION

2.0

ESTABLISHMENT OF STATE COMMISSIONS. PLANNING DISTRICTS. AND LOCAL COMMITT'EES . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.1

INDIANA EMERGENCY RESPONSE COMMISSION

2.2

PLANNING DISTRICTS

2.3

...........

.............................. LOCAL EMERGENCY PLANNING COMMITTEES . . . . . . . . . . . .

3.0

................... EMERGENCY RESPONSE PLANS . . . . . . . . . . . . . . . . . . . . . . . . . SUBMISSION OF MATERIAL SAFETY DATA SHEETS . . . . . . . . . . . HAZARDOUS CHEMICAL INVENTORY FORMS . . . . . . . . . . . . . . . TOXIC CHEMICAL RELEASE REPORTING . . . . . . . . . . . . . . . . . .

EMERGENCY PLANNING NOTIFICATION

4.0 5.0 6.0 7.0

137 137 138 138 139

CHAPTER 10 ENVIRONMENTAL CONSIDERATIONS IN REAL ESTATE TRANSACTIONS

....................................

140

..........

140

1.0

INTRODUCTION

2.0

INDIANA RESPONSIBLE PROPERTY TRANSFER LAW

................................... 2.1.1TYPESOFPROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 TYPES OF TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 DISCLOSURE REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 DELIVERY OF DISCLOSURE DOCUMENT . . . . . . . . . . . . . . . . . 3.0 LIABILITY EXEMPTIONS FOR FIDUCIARIES . . . . . . . . . . . . . . . . . 2.1

4.0

APPLICABILITY

THE PANTRY. ZNC . V. STOP-N-W FOODS. INC. . . . . . . . . . . . . . . .

140 140 141 143 144 145 146

CHAPTER 11 INDIANA ADMINISTRATIVE PROCEDURE

....................................

147

.................................... AGENCY ADJUDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . AGENCY RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

147

........................ 3.0 ADJUDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 ADMINISTRATIVE REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . .

148

3.2.1 PRE-HEARING CONFERENCE

151

3.2.2

......................... PRE-HEARING PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . SUMMARY JUDGMENT, DEFAULT. DISMISSAL . . . . . . . . . . . . .

151

1.0

INTRODUCTION

2.0

APPLICABILITY

2.1 2.2 2.3

3.2.3

EXEMPTED AGENCY ACTIONS

147 148 149 149 150

152

............................. 3.3 ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 RECOMMENDED ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 FINAL ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

153

...................... 3.3.4 INSPECTION, PRECEDENTIAL EFFECT, RECORDS . . . . . . . . . . . 4.0 RULEMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 PUBLIC HEARINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . .

155

............ 5.0 JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 REQUIREMENTS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157

3.2.4 HEARING PROCEDURE

3.3.3 MODIFICATION OF FINAL ORDER

4.3

ADOPTION, APPROVAL AND FILING OF RULES

154 154 154 155 155 156 156 157 158 158

....................................

158

............................. 5.2 SCOPE OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 STANDARDS OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 CIVIL ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

159

......................................

162

5.1.2 EXHAUSTION

5.1.3 FILING REQUIREMENTS

7.0

CONCLUSION

160 160 161

CHAPTER 12 INDIANA ENVIRONMENTAL TORT LAW

........................................

163

TRESPASS

164

3.0

WASTE

........................................ ..........................................

164

4.0

....................................... STRICT LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FRAUD AND MISREPRESENTATION . . . . . . . . . . . . . . . . . . . . . . DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

165

1.0

NUISANCE

2.0

5.0 6.0 7.0

NEGLIGENCE

165 166 167

PREFACE

As the name implies, this is a "handbook" to Indiana's environmental statutes, regulations and policies. In preparing it we have tried to thoroughly describe the current status of Indiana law, but in this ever changing practice area "current" is a relative term. We therefore encourage readers to consult the most recent version of the Indiana statutes and regulations. We have attempted to provide thorough footnotes to assist in this effort. In selecting the specific topics to be covered by this handbook we have tried to pick those with the most general applicability to the Indiana regulated community. We have attempted not only to describe the structure and applicability of the selected laws but also to highlight ways in which Indiana law is unique. Because not all possible topics can be treated, and because not all those treated can be discussed in the same depth, we again encourage readers to consult the statutes and regulations, as well as case law, for complete answers to their questions. We could never have put this handbook together without the assistance of our department secretary in the South Bend office, Connie Unruh. Connie not only took on the task of typing and editing, but attempted valiantly, although not always successfully, to keep us on schedule. Without her constant and unflagging support, as well as her unending patience and technical skills, we would never have gotten this book out the door. We'd also like to thank the firm's other lawyers, legal assistants and support staff who assisted in this effort. Those listed as authors are really only a small part of the overall team.

...

Xlll

ABOUT THE AUTHORS Laurence A. McHugh is Administrator of the Environmental Law Department of Barnes &

Thornburg in South Bend. Mr. McHugh graduated from Indiana University School of Law Bloomington with honors in 1973, and is a partner in the South Bend office. Mr. McHugh has had extensive experience in all areas of environmental practice, including matters relating to air pollution, water pollution, solid and hazardous waste issues, underground storage tanks, and Superfund matters. His activities range from advising clients on permitting and compliance issues to defending enforcement cases.

He has represented clients in major, complex

environmental litigation before the U.S. district courts and courts of appeal. Recently, an increasing percentage of his practice has been devoted to advising clients with regard to the environmental aspects of real estate transactions, mergers, acquisitions and bankruptcy. Richard W. Paulen is a partner in Barnes & Thornburg's Elkhart office. He is a 1974 graduate of the Valparaiso University School of Law and concentrates in environmental law. Mr. Paulen holds a bachelor's degree from the University of Evansville and a Master of Science in biology from the University of Louisville. He is experienced in Superfund, RCRA, and air pollution control matters and has practiced before the Indiana Department of Environmental Management and the United States Environmental Protection Agency. Deborah A. Lawrence is an associate in the Fort Wayne office. She graduated from the Catholic University of America's Columbus School of Law in 1987. Ms. Lawrence received her B. A. degree from DePauw University, graduating summa cum laude in 1984. Jean L. Doyle is an associate in the South Bend office. In 1988 she graduated from Valparaiso University School of Law, with High Distinction, where she served as Note Editor of the Law Review. Ms. Doyle received an M.S.T. degree from University of Chicago in 1978 and an M. A. from the University of Colorado in 1976. She received her B. A. degree from Macalester College in 1973.

xiv

Guinn P. Doyle is the Environmental Regulatory Analyst in the Indianapolis office.

He

received his B.A. degree from Indiana University in 1972. He was employed by the State of Indiana in its environmental protection agency for eleven and one-half years. Mr. Doyle graduated from Indiana University School of Law - Indianapolis in May 1992. Julie S. Canniff is a legal assistant in the South Bend office. Ms. Canniff received her B.S. degree in Political Science/Legal Administration, cum laude, from Ball State University in 1988. She has extensive experience in wetlands regulation, Superfund litigation and reporting requirements under the Emergency Planning and Community Right-to-Know Act of 1986.

CHAPTER 1 INTRODUCTION 1.0 INDIANA ENVIRONMENTAL PHILOSOPHY

The general philosophical approach of the state of Indiana has undergone a gradual evolutionary process since the early 1970s. In order to understand this process, one must appreciate the geographical, political and economic elements which shape this philosophy. When the Clean Air Act was significantly amended in 1970, the industries most affected were the socalled "smokestack industries" such as iron and steel, petroleum refining, electric power generating and chemical production. Indiana's steel industry was very heavily concentrated in Lake County in the northwest comer of the state, which U.S. EPA included within the Chicago Metropolitan Air Quality Control Region. In 1970, the Youngstown Sheet & Tube Company (later Jones & Laughlin Steel and then LTV) and Inland Steel operated fully integrated steel plants on either side of the Indiana Harbor Ship Canal. A few miles to the east lay U.S. Steel's Gary Works which at the time was the largest steel mill in the United States. In the mid-1960s, Bethlehem Steel's Bums Harbor mill commenced operation in Porter County, just to the east. Lake County also contained numerous refineries and chemical plants and a large number of supporting industries. These facilities were running at full capacity, providing tens of thousands of jobs and contributing enormous sums of money to the Indiana economy. At one point, U. S. Steel's Gary Works alone employed over 25,000 people. Secondary concentrations of heavy industry existed in the Indianapolis, Fort Wayne and Evansville Metropolitan areas. Indiana's numerous electric power generating stations relied heavily on Indiana coal which, while containing less ash content than western coal, contained relatively high levels of sulfur. The Clean Air Act Amendments of 1970 and the 1972 amendments to the Federal Water Pollution Control Act (now the Clean Water Act) were perceived to represent a significant threat to the continued viability of the Indiana steel, petroleum, and power industries and to the continued use of Indiana coal. In the early days, Indiana's environmental control program was contained within the State Board of Health and run by two relatively autonomous entities, the Air Pollution Control Board and the Stream Pollution Control Board. The early efforts of these boards reflected a reluctance

INDIANA ENVIRONMENTAL LAW HANDBOOK

to impose requirements which were overly burdensome on industries deemed vital to the Indiana economy. This was especially so because the political seat of power was in the southern portion of the state, which was decidedly conservative. The situation was exacerbated by the fact that the con,servativestate of Indiana was located in U.S. EPA's Region V, considered by many to be one of if not the most aggressive and independent EPA Regions in the nation. The decade of the 1970s and early 1980s was therefore a period of thinly veiled hostilities between EPA and Indiana, with the state resisting the imposition of restrictions mandated by EPA which were considered overly stringent. However, as the emphasis in the environmental arena shifted from the early air and water issues to the problems of hazardous waste control and the cleanup of abandoned dumps, the philosophy evolved into one which sought to accommodate EPA initiatives, but to do the minimum necessary to retain approval of the state programs. As discussed below, in 1985 the environmental program was consolidated under the newly created Department of Environmental Management. Indiana sought approval of its program under RCRA and other programs. However, it was still clear that Indiana would impose only those minimum requirements necessary to meet the equivalent federally promulgated requirements. Since 1990 Indiana appears to be poised to go beyond these minimum requirements; a development which springs from two sources. The first is an increased level of public awareness, which reflects a nationwide phenomenon. The second is the election of a Democratic governor in November 1988, Evan Bayh, who has maintained environmental issues high on the list of priorities of his administration. The results of this evolutionary process are already being felt. For example, on December 13, 1989, Indiana adopted new water quality standards which are among the most stringent in the nation. In addition, in February 1989 Indiana adopted new solid waste management regulations which are as stringent as those adopted by U.S. EPA under Subtitle D of RCRA.

2.0 INDIANA ENVIRONMENTAL AGENCIES The responsibility for developing, implementing and enforcing environmental law in Indiana is largely centralized at the state level. County and municipal governments play a role in this process, but that role is defined by and delegated from the centralized state agencies. As

INTRODUCTION a result, when dealing with local agencies, it is always important to ensure that the actions and decisions of the local agencies conform to the applicable state requirements and the scope of the delegation of authority. The framework of the agency structure is set forth in detail below. Subsequent chapters will approach the various aspects of Indiana environmental law based upon the medium affected (i.e., air, water, solid waste, etc.), rather than on the individual board, due to the overriding responsibility of the Department of Environmental Management. 3.0 DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

3.1 HISTORICAL DEVELOPMENT

The Indiana Department of Environmental Management ("IDEM")' was created by the 1985 Indiana General Assembly (P.L. 143 - 1985). The creation of IDEM out of the preexisting environmental agencies was the result of the recommendation of the Governor's Environmental Policy Commission to improve the effectiveness of Indiana's environmental programs. IDEM began life on April 1, 1986, by Executive Order No. 6-86' of Governor Robert D. OK. Prior to the creation of IDEM, Indiana's environmental programs were developed and operated by three part-time citizen boards: the Indiana Environmental Management Board; the Indiana Stream Pollution Control Board; and the Indiana Air Pollution Control Board. The Environmental Management Board was created to "provide for evolving policies of comprehensive environmental development and control on a statewide basis; and to unify, coordinate and implement programs to provide for the most beneficial use of the resources of the state and to preserve, protect and enhance the quality oi the environment so that, to the extent possible, future generations will be ensured clean air, clean water and healthful environment. "2 The Stream Pollution Control3 and Air Pollution Control4 boards continued

h he Indiana statutes convey all powers of the Department of Environmental Management to the "Commissioner," just as the federal statutes convey all power to the "President" or the "Administrator of U.S. EPA." For purposes of uniformity, we will forego that convention and simply make all references to the "IDEM." 'Ind. Reg. 2,135 (1986). 21972Ind. Acts 100 (P.L. 100-1972). 3~nd.Code 1972, 5 13-7-6-3(P.L. 100-1972). 41nd. Code 1972, 8 13-7-6-3(P.L. 100-1972).

INDIANA ENVIRONMENTAL LAW HANDBOOK

to exercise the powers and duties imposed upon them, but with coordination supplied by the Indiana Environmental Management Board. Staff services to all three boards were supplied by the staff of the Indiana State Board of Health. The State Board of Health staff conducted inspections, reviewed permit applications, drafted regulations, and prepared EPA grant applications all under the direction of the then assistant commissioner for environmental health who also served as the technical secretary to the Air Pollution Control Board and the Environmental Management Board. The director of the bureau of engineering, who oversaw all environmental activities, served as technical secretary to the Indiana Stream Pollution Control Board. The boards were empowered to promu'lgate rules, enforce rules and permit conditions and to enter into grant agreements.

3.2 POWERS When IDEM was created, the various responsibilities of the three existing boards were re-distributed between three reconstituted boards5 and the new IDEM. IDEM was designated as the lead agency in Indiana for the Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. 5 6921 et seq. ; the Clean Air Act ("CAA"), 42 U.S.C. 5 7401 et seq. ; the Clean Water Act ("CWA"), 33 U.S.C. 5 1251 et seq.; the Safe Drinking Water Act ("SDWA"), 42 U.S.C. $ 300(f) et seq.; and the Midwest Interstate Compact on Low-Level Radioactive Waste

established by the Low-Level Radioactive Waste Policy Act, 42 U.S .C.

5 2021 et ~ e q IDEM .~

is authorized to conduct the following activities: (1) implement a program of continuing surveillance and inspection of sources of environmental pollution; (2) assure the establishment of comprehensive and long-term programs established by the boards; (3) procure compliance with the standards and rules adopted by the boards; and (4) develop and implement a program of public awareness and participation? IDEM was given powers once reserved to the boards. Whereas the boards formerly initiated enforcement action and issued permits (either directly or through the technical secretary), IDEM is now responsible for those types of activities, with the

%he Air Pollution Control Board, the Water Pollution Control Board and the Solid Waste Management Board. To a lesser extent, the State Board of Health and the Department of Natural Resources are also involved in environmental matters. %d. Code 5 13-7-2-15(a)(1) through (4). 7~nd.Code 8 13-7-3-3, 4, -5, -6.

INTRODUCTION

board serving in an appellate function by hearing appeals of IDEM actions. The boards still retain rulemaking authority and thus set state environmental policy and direct the activities of IDEM. However, as the boards must rely on IDEM staff, they are dependent on IDEM support to develop draft rules to implement state environmental p~licies.~ IDEM is responsible for the implementation of the state's environmental policies and programs as they are expressed in the rules promulgated by the boards. The staff of IDEM reviews permit applications and drafts permits (or denials) for IDEM to issue. IDEM maintains a continuing program of inspection and surveillance of actual or threatened sources of environmental pollution and IDEM can issue a notice or order in cases in which the inspection program uncovers violations of rules, permit conditions or statutory prohibition^.^ In extreme cases, IDEM is empowered to bring suit on behalf of the state to restrain persons from causing poll~tion'~ or to abate a pollution hazard.ll Actions by IDEM can be appealed to one of the three boards,12 which will appoint an Administrative Law Judge ("ALJ") to conduct an adjudicatory hearing.13 Following the conclusion of the adjudicatory hearing the ALJ prepares recommended findings of fact and conclusions of law and a proposed order. After review, the board may adopt or modify, affirm or dissolve the order, either on its own volition or in response to objections filed by a party.14 3.3 RULEMAKING As discussed above, staff services are provided to each board by the Commissioner of IDEM acting in the capacity of technical secretary.

IDEM develops rules, generally to

implement delegated federal programs, for the board to adopt. To date, all of Indiana's rules have originated in IDEM and no board has ordered the technical secretary to have a rule drafted to implement a specific requirement. In adopting rules, the boards must consider the following

'hd. Code 8 13-3-7-9. 9hd. Code $ 13-7-11-5.

'%d.

Code 8 13-7-12-2.

"hd. Code 8 13-7-12-3. 121nd. Code $$ 13-1-1-40; 13-1-2-8(a)(2);and 13-1-3-4(a). 131nd. Code 5 13-7-2-14. 141nd. Code 8 4-21.5-3-29.

INDIANA ENVIRONMENTAL LAW HANDBOOK requirements: (1) all existing physical conditions and the character of the area affected; (2) past, present, and probable future uses of the area, including the character of the uses of surrounding areas;, (3) zoning classifications; (4) the nature of the existing air quality or existing water quality as the case may be; (5) technical feasibility, including the quality conditions that could reasonably be achieved through coordination of the control of all factors affecting the quality; and (6) economic reasonableness of measuring or reducing any particular type of p~llution.'~ In addition, the .board must take into account the right of all persons to an environment sufficiently uncontaminated as not to be injurious to human, plant, animal, or aquatic life or to the reasonable enjoyment of life and property.16 4.0 AIR POLLUTION CONTROL BOARD 4.1 POWERS

Powers and duties of the Air Pollution Control Board are vested in nine members, six of whom are appointed by the governor with the remaining three being ex-oflcio members.17 No more than three of the appointed members may belong to the same political party.''

The

Air Pollution Control Board is empowered to adopt rules to implement the Clean Air Act,19 develop operating policies for IDEM,20 and review orders and determinations of the Commissioner of ID EM.^' The board is also empowered to adopt rules to create air quality basins,22control emissions from automobile^,^^ establish a program of accreditation of persons engaged in asbestos abatement in schools,24and establish controls on noise p~llution.~'

151nd. Code 8 13-7-7-2. 9d.

17hd. Code 8 13-1-1-3@).

"hd. Code Q 13-1-1-3(c).

lgInd. Code Q 13-1-14, 2%d. Code 8 13-1-1-4(e).

21hd. Code Q 13-1-1-40.

22~nd.Code 8 23hd. Code Q %nd. Code Q 2SInd. Code Q

13-1-1-5. 13-1-16. 13-1-1-14. 13-7-8-1.

INTRODUCTION 4.2 RULEMAKING

In carrying out its rulemaking function, the board must provide for public notice and a public hearing.26 If a rule has statewide application, more than one hearing must be held.27 In addition, the public may propose rules to the board.28 The boards must hold a hearing on such a rulemaking petition if the board finds that the proposed rule is not "plainly devoid of merit" and has not held a hearing on the subject of the proposed rule within six months prior to the submission of the petition.29 4.3 ADJUDICATORY POWERS OF THE BOARD A party to whom IDEM has issued a permit, order or notice of violation may seek review

by the board.30 IDEM is empowered to appoint an ALJ to conduct the proceeding on behalf of the board and to submit recommended findings of fact, conclusions of law, and an order for the board's c~nsideration.~~

5.b WATER POLLUTION CONTROL BOARD 5.1 POWERS

Powers of the board are vested in nine members, six of whom are appointed by the governor and three of whom are ex-o_gi~io.~~ No more than three of the appointed members may be of the same political party.33 The board is empowered to adopt rules for the purpose of (1) controlling or preventing pollution in the waters of Indiana;34(2) implementing the Clean Water A C ~ ; (3) ~ ' determining when waters are polluted;36 (4) issuing permits to control

26~nd.Code Q 4-22-2. 271nd. Code

5 13-7-74.

281nd. Code Q 13-7-7-3. 291d. 3%d. Code QQ 13-1-1-4(f); 13-7-10-2.5; 13-7-11-2(d).

3l1d. 5 13-1-3-2(a). 331nd. Code 5 13-1-3(2)(b). 321nd. Code

"~nd. Code Q 13-1-34. 3S~nd. Code Q 13-1-3-4. 3%d. Code 8 13-1-3-7.

INDIANA ENVIRONMENTAL LAW HANDBOOK pollution under the National Pollution Discharge Elimination Sy~tem;'~ (5) establishing an operator certificationprogram for operators of wastewater treatment plants, water supply systems and water treatment plants;38and (6) issuing permits to control public water supplies.39 5.2 RULEMAKING AUTHORITY

Rulemaking authority of the Water Pollution Control Board is identical to that of the Air Pollution Control Board.

5.3 ADJUDICATORY POWERS OF THE BOARD In addition to the adjudicatory powers of the Air Pollution Control Board, the Water Pollution Control Board is also empowered to conduct hearings on the necessity to condemn land as needed to comply with the orders of IDEM.'"' In the event of an IDEM order to "control, treat, dispose, or cease discharging industrial and sanitary wastesm41into waters of the state, any "person"" is empowered to "take, acquire, condemn, and appropriate real property or any interest therein necessary to comply with the order. "" The owner of the affected land then has the right to a hearing before the Water Pollution Control B ~ a r d . ~ 6.0 SOLID WASTE MANAGEMENT BOARD

6.1 POWERS

The powers and duties of the Solid Waste Management Board are vested in nine members, six of whom are appointed by the governor with the remaining three being ex-oflcio members.45 No more than three of the appointed members may be of the same political party.46 The Solid Waste Management Board is empowered to adopt rules to regulate solid and

371nd. Code 5 13-7-10-l(b).

381nd. Code Q 13-1-6-7. 391nd. Code 9 13-7-14-5.

4%d. Code Q 13-1-5-2.

411nd. Code Q 13-1-5-1. 42~efined to include "firm, partnership, corporation, association, and any and all legal entities." Ind. Code 9 13-1-54 43~nd.Code Q 13-1-5-1. Code 9 13-1-5-2. 45~nd. Code 9 13-1-12-6. %d.

46~d.

INTRODUCTION

hazardous waste and atomic radiation and rules necessary to implement the Resource, Conservation and Recovery

In addition, the Solid Waste Management Board shall

review orders and determinations of IDEM and develop operating policy for IDEM in implementing the solid and hazardous waste management programs.48

6.2 RULEMAKING In addition to rulemaking authority identical to that of the other boards, the Solid Waste Management Board has the power to issue emergency rules.49 This gives the board the power to declare a waste to be a hazardous waste.50 An emergency rule issued under this section expires within 90 days and may be extended for an additional 90 days. For a waste to remain a hazardous waste after the expiration of the second 90-day period, the board must initiate rulemaking under the normal rulemaking proced~re.~' 6.3 ADJUDICATORY POWERS OF THE BOARD The adjudicatory powers of the board are identical to those of the Air Pollution Control Board. 7.0 STATE BOARD OF HEALTH 7.1 POWERS

With the creation of the Indiana Department of Environmental Management, the involvement of the Indiana State Board of Health in "environmental issues" has been substantially reduced. At present, the Indiana State Board of Health has responsibilities that complement those of the Indiana Department of Environmental Management. Specifically, the State Board of Health is empowered to adopt rules concerning: 1.

nuisances dangerous to public health;

2.

pollution of any water supply other than when jurisdiction is in the Water Pollution Control Board ,and in the Department of Environmental Management;

471nd. Code 9 13-1-12-8.

48~d. 491nd. Code 9 13-7-8.5-3; hd.Code $ 4-22-2-37.1.

Code 9 13-7-8.5-3. "1nd. Code 8 4-22-2-37.1(g). '%d.

INDIANA ENVIRONMENTAL LAW HANDBOOK disposal of excremental sewage matter.52

3.

In addition, the Board of Health regulates infectious waste and is empowered to promulgate regulations concerning the handling of infectious waste.53 In 1989, Indiana adopted regulations regarding the containment, labelling, storage and treatment of infectious wastes.54

8.0 DEPARTMENT OF NATURAL RESOURCES The Department of Natural Resources ("DNR") has the power to regulate in specific areas including but not limited to geology, entomology, forestry, fish and wildlife, and regional land use."

The director of DNR is represented on all environmental boards and the

Commissioner of IDEM sits on the Natural Resources Commissi~n.~~ One area in which IDEM and DNR have concurrent jurisdiction is the regulation of wetlands. IDEM'S powers stem from those delegated by U.S. EPA under the Clean Water The DNR, on the other hand, is empowered by Indiana law to regulate and control the drainage and reclamation of lands.5s Specifically, DNR is empowered to recommend and secure the enforcement of laws for the drainage and reclamation of the swamp, overflowed and non-arable lands of the state.59 At present, no specific regulations concerning the management of wetlands have been issued by DNR. 8.1 POWERS

The DNR is made up of the Natural Resources Commission, the director of the DNR, two deputy directors of the DNR, and other per~onnel.~'The Natural Resource Commission consists of twelve members, seven of which are ex-oficio members. The remaining five members are appointed by the go~einor.~'The director of DNR is appointed by the governor 521nd. Code 5 16-1-3-13. 531nd. Code 5 16-1-9.7.

54410I.A.C. 1-3. "Ind. Code 8 14-3-1-1 et seq. %d.

Code 5 14-3-3-3.

5733U.S.C. 8 1311 et seq.

"1nd. Code 8 14-3-1-3(1)(A). S91nd. Code 5 14-3-1-15(3). Code 5 14-3-3-2. "1nd. Code 5 14-3-3-3. %d.

INTRODUCTION and serves as the executive and chief administrative officer of the department with full power to appoint and remove deputy directors and to appoint and remove all officers and employees of any bureau or di~ision.~' The DNR is divided into the following divisions:63 1.

geology;

2.

entomology and plant pathology;

3.

forestry;

4.

lands and waters;

5.

fish and game; and

6.

engineering.

In addition, if it becomes necessary to further differentiate the work of the department, the Natural Resources Commission is authorized to create divisions.64 The DNR has the power to investigate, compile, and disseminate information and make recommendations concerning the natural resources of the state of Indiana and their conservation, including drainage and reclamation of lands, flood prevention, development of water power, culture and preservation of forests, fish and game, preservation of soils, prevention of waste of mineral resources, and prevention and methods of control of plant diseases, infections and pests.6s The DNR also has the power to cooperate with the federal government in conducting topographical surveys, experiments, and work which is in the joint interest of the state of Indiana and the federal government.66 8.2 RULEMAKING

The DNR is empowered to promulgate rules and regulations which have the force and effect of law.67 Anyone who violates any of these rules or regulations commits a Class C

621nd. Code 5 14-3-3-4.

631nd. Code "lnd. Code

5

%nd. Code 5 661nd. Code 5 671nd. Code 6

14-3-1-8(a). 14-3-1-8@). 14-3-1-3(1). 14-3-1-3(2). 14-3-2-3.

INDIANA ENVIRONMENTAL LAW HANDBOOK

infra~tion.~~ For purposes of rulemaking, the Natural Resources Commission is the ultimate authority of the DNR and has exclusive authority to adopt rules.69

8.3

ADJUDICATORY AUTHORITY

The Natural Resources Commission is also the ultimate authority of the DNR for purposes of adjudicatory proceeding^.^^ Under that authority the commission, a division director, or a hearing officer appointed by the commission may administer oaths, certify to official acts, require information from any person, issue subpoenas, and examine witnesses under oath.71 Any person who fails to comply with an order of DNR can be compelled to do so by the circuit court having jurisdiction over that p e r s ~ n . ~

68~d.

69~nd.Code 8 14-3-3-21. 70~d. 711nd. Code Q 14-3-1-5(a).

nInd. Code Q 14-3-1-5@).

CHAPTER 2 AIR POLLUTION CONTROL 1.0 INTRODUCTION

This chapter will discuss the regulation of stationary sources of air pollution in Indiana. The emphasis of this chapter will be on the state permitting requirements for new and existing sources. 1.1 CLEAN AIR ACT AMENDMENTS OF 1990

The 1990 Clean Air Act Amendments will necessitate a number of changes to the Indiana State Implementation Plan, or "SIP." There are five ozone nonattainment areas under the new criteria of the act. These are the Indiana portion of the Chicago Metropolitan Air Quality Control Region ("AQCR"), classified as a Severe area; the Indiana portion of the Cincinnati AQCR, classified as Moderate; and the Evansville, Indianapolis and South BendIMishawaka AQCRs, classified as Marginal. The most immediate requirement is to upgrade the reasonable available control technology ("RACT") requirements in the SIP. However, prior to the 1990 Amendments, Indiana had received two separate notices from U.S. EPA regarding the inadequacy of its ozone SIP, and had been in the process of amending its ozone program. This process is almost complete. The cities of East Chicago, Hammond, Whiting and Gary in Lake County and Clinton Township in Vermillion County are designed Moderate nonattainment areas for PM-10, and Indiana is in the process of attempting to develop SIP revisions for these areas. 2.0 AGENCIES RESPONSIBLE FOR AIR POLLUTION CONTROL

Within Indiana, IDEM is the air pollution control agency for purposes of the federal Clean Air Act.' IDEM controls permitting of stationary sources as well as inspections and enforcement with regard to air pollution violations. In addition, it can propose rules or regulations2 to be adopted by the Air Pollution Control ~ o a r d . ~

'Ind. Code 5 13-7-2-15(3).

21nd. Code 8 13-7-7-l(a). 31nd. Code 1 13-7-7-I@).

INDIANA ENVIRONMENTAL LAW HANDBOOK 2.1 LOCAL AGENCY INVOLVEMENT

In addition to IDEM and the Air Pollution Control Board, Indiana law permits counties to adopt and enforce ordinances controlling air p~llution.~If requested by IDEM, annual reports must be submitted by the county.' Additionally, if the county fails to take action to enforce any local ordinance which gives protection to the public equivalent to that provided by state law, IDEM may, after consultation with the county, take action to enforce applicable provisions of state law.6

3.0 PERMITTING PROCEDURES FOR STATIONARY SOURCES Indiana has a bifurcated permitting process under which new sources are required to obtain separate construction and operating permits. There are also registration requirements for certain sources with emission levels below those which trigger permitting requirements. This section will discuss general permitting requirements together with those applicable to the prevention of significant deterioration ("PSD") program, new sources in non-attainment areas and other miscellaneous provisions. 3.1

APPLICABILITY OF REQUIREMENTS

CONSTRUCTION

AND

OPERATING

PERMIT

Under Indiana law, construction and operating permit requirements apply to several classes of sources or facilities. First, permit requirements apply to any person currently operating or proposing to operate any source or facility if that source or facility has potential emissions of twenty-five tons or more per year of any regulated pollutant, or specified levels of lead emission^.^ "Source" is defined as "an aggregation of one or more facilities which are located on one piece of property or on contiguous or adjacent property, and which are owned

41nd. Code 5 13-1-1-lo@). 'Ind. Code 5 13-1-1-10(d). %d. Code 5 13-1-1-10(e). 7326 I.A.C. 2-1-l(a)(l). Lead emissions are defined by 326 I.A.C. 2-1-l(b)(l)(B) which states that the requirements apply to: a) primary lead smelters; b) secondary lead smelters; c) primary copper smelters; d) lead gasoline additive plants; and e) lead-acid battery manufacturing plants producing more than 2,000 batteries per day if the facility emits one (1) ton or more per year of lead or lead compounds. In addition, any other stationary source of lead must be permitted if potential emissions exceed five (5) tons or more per year of lead or lead compounds. 326 I.A.C. 2 1 1 ) ( 1 ) ( C ) . Any increase in lead emissions of more than -6 tons per year at a stationary source also requires a permit. 326 I.A.C. 2-1-l(b)(l)@).

AIR POLLUTION CONTROL

or operated by the same person (or by persons under common control). "'Similarly, "facility" is defined as "any one structure, piece of equipment, installation or operation which emits or has the potential to emit any air contaminant. Single pieces of equipment or installations with multiple emission points shall be considered to be a facility for the purpose of this rule."g "Potential emissions" are defined as the emissions from a facility if that facility "were operated without the use of pollution control equipment unless such control equipment is

. . . necessary

for the facility to produce its normal product or is integral to the normal operation of the facility."lo Second, construction and operating permit requirements apply to any person proposing to begin construction or modification of any source or facility, or any person currently constructing or modifying any source or facility, which will have the above-specified potential

emission^.^^ In addition, the requirements apply to any person proposing to construct or operate, or any person currently constructing or operating, any emission control equipment.'' IDEM also reserves the right to require that sources or facilities which have the potential to emit unregulated pollutants in excess of the above-described levels complete a permit application and obtain a construction or operating permit.13 Sources with potential emissions less than or equal to twenty-five tons per year of any regulated pollutant but in excess of certain specified minimum amounts need not be permitted but must be registered.14 A registration statement must contain the following information: (1) a description of the

nature, location, design capacity and operating schedule of the source, facility or emission control equipment, including the design specifications; (2) a time schedule for construction or modification; and (3) information on the nature and amount of pollutants to be emitted, as well as any other information determined by IDEM as necessary to demonstrate compliance with

'326 I.A.C. 1-2-73. '326 I.A.C. 1-2-27. "326 I.A.C. 1-2-55. "326 I.A.C. 2-1-l(a)(2). 12326 I.A.C. 2-1-l(a)(3). 13326 I.A.C. 2-1-l(a)(4). 14326 I.A.C. 2-1-1@)(2).

INDIANA ENVIRONMENTAL LAW HANDBOOK ambient air quality standards." Upon receipt of the information, IDEM may either accept the registration or request additional information within 90 days.16 If necessary to maintain ambient air quality standards, or to protect the public health, IDEM may impose emission limitations as a condition to accepting a source or facility registration.17 3.2 CONSTRUCTION PERMITS A construction permit must be issued before construction or modification can begin.18 Construction is deemed to have begun when the owner or operator has begun "a continuous program of physical on-site constru~tion"'~ or has "entered into binding agreements . . . which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction. "20 No construction permit will be issued unless the applicant can demonstrate that the source or facility will not emit any air pollutant regulated under the Clean Air Act in amounts which will interfere with attainment or maintenance of any ambient air quality standard or interfere with attainment or maintenance of the PSD standards for Indiana or any adjoining state.21 Any facility or source which is major for carbon monoxide or volatile organic compounds ("VOCs") and is proposed to be located in a nonattainment area for carbon monoxide or VOCs must, as part of its construction permit application, analyze alternative sites, sizes, production processes and environmental control techniques, as well as demonstrate that the benefits of the proposed construction or modification significantly outweigh the environmental and social costs which will result from the construction or m~dification.~~ In addition, any major source or

"326 I.A.C. 2-1-2@).

16326I.A.C. 2-1-2(c). "326 I.A.C. 2-1-2(d). 18326I.A.C. 2-1-3(a). Indiana, unlike U.S. EPA, permits construction activities not related to the pollutant emitting processes to commence before a construction permit is issued. The applicant bears the risk of a permit denial. "326 I.A.C. 1-2-20(1). 20326I.A.C. 1-2-20(2). 21326 I.A.C. 2-1-3(b)(l).

22326I.A.C. 2-1-3(b)(2).

AIR POLLUTION CONTROL

facility must comply with the applicable PSD or nonattainment review requirements as discussed later in this chapter.23 Applicants for construction permits must provide the following information: (1) a description of the nature, location, design capacity and typical operating schedule of the proposed source or facility and any emission control equipment, including design specifications;

(2) a schedule for construction or modification; (3) information on the nature and amount of the pollutant to be emitted; (4) estimates of offset credits for sources or facilities to be constructed in non-attainment areas; and (5) any other information determined by IDEM to be necessary to demonstrate compliance with either ambient air quality standards or PSD standards.24 Any plans or specifications submitted with the permit application must be prepared or approved by a professional engineer unless the source, facility or emission control equipment costs less than $ 10,000.00.25 In addition, each application must be signed by an individual authorized to bind

the applicant.26 Prior to issuing a construction permit, the proposed permit application must be reviewed by IDEM. Within 30 days of the receipt of the application, IDEM will preliminarily review the application for completeness and notify the applicant as to whether the application is complete or incomplete. If the application is incomplete, additional information will be requested. A refusal to complete the application will be considered a denial of the permit." IDEM must also notify the public of the proposed construction by publishing a notice in a newspaper of general circulation in the county where the construction is to take place.28 A copy of that notice is also to be provided to the appropriate federal, state or local agency.2g Any comments received during the public comment period are to be considered by IDEM before

=326 I.A.C. 2-1-3(b)(3) and (4).

24326I.A.C. 2-1-3(c).

25326I.A.C. 26326I.A.C. 27326I.A.C. 28326 I.A.C. 29326I.A.C.

2-1-3(d).

2-1-3(e). 2-1-3(f)(1). 2-1-3(f)(2). 2-1-3(Q(3).

INDIANA ENVIRONMENTAL LAW HANDBOOK

the permit application is finally approved or disappr~ved.~~ In addition, an opportunity for a public hearing may be required. A permit may be denied by IDEM on the basis of adverse comment.31 As a part of the permit, IDEM may impose conditions to ensure that the source or facility will comply with all applicable rules and that the ambient air quality standards, the PSD standards and the offset requirements will be attained and rnaintair~ed.~~ With the exception of major stationary PSD source applications, for which the time period is one year,33IDEM has 120 days to grant or deny a permit from the date it receives all necessary inf~rrnation.~" As a part of the permit, IDEM may require the owner or operator of the source or facility to provide for monitoring of emissions in order to demonstrate compliance with applicable air pollution control rules.35 After a source or facility receives a construction permit, the operator is to maintain the permit on the premises of the facility and to make the permit available for inspection by IDEM or any other public official.36 3.3 OPERATING PERMITS

Operating permits must be applied for and obtained prior to the time that a source or facility begins operation.37 An operating permit is to be issued to any source or facility which has received a construction permit provided that the planned emissions from that source or facility are no higher than those allowed by the Air Pollution Control Rules.38 Each application is to be submitted, signed and reviewed in accordance with the requirements for construction permits.39 When IDEM feels it is necessary for the applicant to prove that a source or facility is or will be in compliance with all applicable regulations, IDEM may require compliance testing as

30326 I.A.C. 2-1-3(f)(4). 31326 I.A.C. 2-1-3(f)(5).

32326I.A.C. 33326I.A.C. 34326I.A.C. 35326 I.A.C. 36326I.A.C. 37326I.A.C. 38326I.A.C. 39326I.A.C.

2-1-3(f)(6). 2-13(g)(l). 2-1-3(g)(l). 2-1-3@).

2-1-3(j). 2-1-4(a). 2-14(b).

2-14(c) and (d).

AIR POLLUTION CONTROL

a part of the operating permit. This testing is to be done in accordance with methods and operating conditions approved by IDEM and is to be at the owner's or operator's expense.40 Also as a part of the operating permit, IDEM may require the owner or operator to provide monitoring of emissions in accordance with the construction permit monitoring requirement^.^^ As with construction permits, emission limitations may be established by IDEM as part of operating permits.42 Applicants must reapply for a new operating permit at least 90 days prior to the expiration date of the old one. The reapplication .must comply with the requirements set forth for the initial application. If the new permit is neither issued nor denied prior to expiration of the existing permit, the existing permit's limitations and conditions will remain in force and effect until the new permit is either issued or denied.43 All operating permits are issued for a period of four years either from the date of issue or from the expiration date of the previous permit. However, if determined necessary for administrative reasons, permits may be issued for up to a five-year period or for any lesser period.44 In the event that ownership of a source or facility is changed, IDEM must be notified by the current owner or operator, in writing, within 30 days of the change.45 Any portable source or facility that has been issued a valid operating permit may be issued a site approval letter to authorize operation of the source or facility at a particular site. If such a source or facility is relocated, IDEM must be notified of the proposed relocation at

least 30 days in advance. If IDEM has not disapproved the relocation within 30 days, the new site will be deemed approved unless the relocation will cause or contribute to a violation of ambient air quality standards or the source is not meeting an applicable emission limitati~n.~~

40326 I.A.C. 2-1-4(e). 41326I.A.C. 2-1-4(f).

423261.A.C. 43326I.A.C. '%26I.A.C. 45326I.A.C. 46326I.A.C.

2-1-4(g).

2-1-4(h). 2-I+). %I+). 2-1-6@).

INDIANA ENVIRONMENTAL LAW HANDBOOK 3.4 CONSTRUCTION AND OPERATING PERMIT FEES

The regulations also provide for operating and construction permit fees.47 With regard to construction permits, the rule provides that fees will be revised each year in accordance with increased costs of processing, reviewing, implementing and enforcing permits.

If it is

determined that a permit is not required for construction or operation, no fee will be assessed. Additional charges will be made for air quality impact studies or for public hearings.48 Fees for operating permits are also to be revised each year. If a group of facilities is determined to be related, these facilities may be assessed a single operating permit fee.49 All fees are non-refundable. If the permit is denied or revoked, fees are not refunded and they are not applied to any subsequent appli~ation?~No fee is charged for registration, for issuance of a new permit, for a change in name only, or for a mutually agreed upon amendment of an existing permit.51

3.5 REVOCATION OF EXISTING PERMITS Construction or operating permits may be revoked for any of the following reasons: (1) violation of any condition of the permit; (2) failure to disclose all relevant facts or misrepresentation in obtaining the permit; (3) changes in regulatory requirements; (4) noncompliance with orders to reduce emissions during an air pollution episode; or (5) for any other cause which, in IDEM'S judgment, establishes that continuance of the permit is not consistent with the purposes of the Air Pollution Control Rules.'* In addition, IDEM may revoke a construction permit if construction of the facility is not begun within 18 months from the date of issuance of the permit or if during construction of the facility work is suspended for a continuous period of one year.53

47326I.A.C. 48326I.A.C. 49326I. A.C. "326 I.A.C. "326 I.A.C. 52326I.A.C.

2-1-7. 2-1-7(a)(l). 2-1-7(a)(2). 2-1-7(c). 2-1-7(e).

2-1-9(a). 53326 I.A.C. 2-1-9(b).

AIR POLLUTION CONTROL 3.6 APPEAL OF PERMIT DENIALS, REVOCATIONS OR CONDITIONS

The rules allow appeals of permit denials, revocations or conditions to be made to the board. After receipt of a construction or operating permit, the applicant has up to 15 days to state, in writing, why the applicant believes conditions of the permit are inappropriate and to request a hearing on the matter pursuant to Ind. Code 5 13-7-10-2.5. If no written request for a hearing is received during that period, the applicant is deemed to have accepted all provisions of the

errn nit.'^

If a construction or operating permit is denied, the applicant has up to 15 days

from the date of receipt of the denial letter to appeal, also in writing, the denial and request a hearing." If a construction or operating permit is revoked or modified, the owner or operator of the source or facility has up to 15 days from the date of receipt of the notice to appeal the decision in writing.56

4.0 PREVENTION OF SIGNIFICANT DETERIORATION REQUIREMENTS 4.1 APPLICABILITY

The PSD requirements apply to "any major stationary PSD source" which is being constructed or will be constructed in any attainment or unclassifiable area.57 A "major stationary PSD source" is defined by the regulations to include: any of a list of sources which have the potential to emit 100 tons per year or more of any pollutant subject to regulation under the Federal Clean Air Act; any stationary source with potential PSD emissions of 250 tons per year or more of any air pollutant subject to regulation under the Clean Air Act; any of specifically listed sources with potential emissions of five tons per year or more of lead or lead compounds; and any other stationary source with potential emissions of 25 or more tons per year of lead or lead compound^.^^ Under the 1990 Clean Air Act Amendments, PSD requirements do not apply to any hazardous air pollutant listed in 42 U.S.C. 8 7612(a). In addition, major PSD sources include: 1) major PSD modifications, defined as "any physical change in, or change in the method of operation of, a major stationary PSD source that 54326I.A.C. 2-1-8@). "326 I.A.C. 2-1-8(c). 56326I.A.C. 2-1-8(d). 57326I. A.C. 2-2-2(a).

58326I.A.C. 2-2-1.

INDIANA ENVIRONMENTAL LAW HANDBOOK would result in significant net emissions increases of any pollutant which is being regulated under the Clean Air Act," and 2) any physical change occurring at a stationary source, which does not itself qualify under the regulations, if the change would, standing alone, qualify as a major stationary PSD source.59 Certain sources are, however, specifically excepted from regulation.60 4.2 REQUIREMENTS

Any owner or operator of a major stationary PSD source or major PSD modification must comply with specific requirements. First, a major stationary PSD source or modification must meet all applicable emission limitations under the Indiana rules as well as each applicable emission standard under the federal regulation^.^' Second, new, major stationary PSD sources must apply the best available control technology for each pollutant subject to regulation under the Clean Air Act that the source has the potential to emit in significant amounts.62 Third, major PSD modifications must also apply best available control technology for each pollutant subject to regulation under the Clean Air Act if the modifications would result in a significant net emissions increase of that pollutant at the source.63 For phased construction projects, the determination of best available control technology is to be made at the latest reasonable time.64 4.3 PERMIT APPLICATIONS Permit applications under this section must contain an analysis of ambient air quality in New sources the area affected by the major stationary PSD source or PSD modificati~n.~~ must provide an analysis of all pollutants regulated under the Clean Air Act that the source may emit in significant amounts.66 Permits for modifications to existing sources must analyze each pollutant for which the modification will result in a significant net emissions increase.67

59326I.A.C. 2-2-1. 60326I.A.C. 2-2-1.

61326I.A.C. 2-2-3(a)(1). 62326I.A.C. 2-2-3(a)(2). 63326I.A.C. 2-2-3(a)(3).

64326I.A.C. I.A.C. 66326I.A.C. 67326I. A.C.

2-2-3(a)(4). 2-2-4(a). 2-2-4(a)(1). 2-2-4(a)(2).

AIR POLLUTION CONTROL

Specific sources and pollutants are, however, exempted from the analysis requirement^.^^ All monitoring required to be performed for such an analysis must be done in accordance with specified provisions. 69 In addition to analyzing the ambient air quality in the area, the owner or operator of the proposed major stationary source or modification must demonstrate that allowable emission increases, including secondary emissions, will not cause or contribute to air pollution in violation of any ambient air quality standard in any air quality control region or any applicable maximum allowable increase over the baseline concentration in any area.70 Specific maximum allowable increments of increase are provided by regulation?' As part of the permit application, the owner or operator must also provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the major stationary PSD source or modification or as a result of general commercial, residential, industrial or other growth associated with the source or modification. However, an analysis need not be provided of the impact on vegetation having no significant commercial or recreational value.72 In addition, as a part of the permit any owner or operator may request that IDEM approve a system of innovative control technology. Under specified conditions, such approval is to be given.73 Additionally, owners or operators of proposed major stationary PSD sources or modifications must submit baseline information." This information is to include a description of the nature, location, design capacity and typical operating schedule of the source or modification, including specifications and drawings showing its design and layout; a detailed schedule for construction of the source or modification; and a detailed description as to what

68326I.A.C. 2-2-4@). 69326I.A.C. 2-2-4(c).

70326I.A.C.

2-2-5(a).

71326I.A.C. 2-2-6. 72326I.A.C.

2-2-7.

73326I.A.C. 2-2-9. 74326 I.A.C. 2-2-10.

INDIANA ENVIRONMENTAL LAW HANDBOOK system of continuous emission reduction is planned.7s IDEM may, in addition, request further inf~rmation.~~ Any owner or operator who constructs or operates a source or modification without providing this information will be subject to enforcement action.77 5.0 NONATTAINMENT AREAS

5.1 APPLICABILITY OF STANDARDS New major stationary sources or major modifications located in nonattainment areas must, in addition to complying with general operating and construction permit requirements, comply with the standards found in Rule 3 of the Air Pollution Control Rules. According to that rule, these standards apply to new major stationary sources or major modifications constructed in areas designated as n~nattainment.~~ "Major stationary source" is defined as: Any stationary source which emits or has the potential to emit one hundred 1. tons per year or more of any air pollutant subject to regulation under the Clean Air Act; or Any of certain specified stationary sources with potential emissions of five 2. tons per year or more of lead or lead compounds or any other stationary source with potential emissions of twenty-five or more tons per year of lead or lead compounds; Any physical change occurring at a stationary source not qualifying under 3. subdivision (1) if that change would, by itself, qualify as a major stationary source under subdivision (1); 4.

A stationary source that is major for volatile organic compounds is

considered to be major for ozone.79 Similarly, "stationary source" is defined as "any building, structure, facility or installation which emits or may -emit any air pollutant subject to regulation under the Clean Air ActW8Oand "potential to emit" is defined as "the maximum capacity of a stationary source to emit a pollutant

75326I.A.C. 2-2-10(a)(l). 76326I.A.C. 2-2-10(a)(2). n326 I.A.C. 2-2-8. 78326 I.A.C. 2-3-2(a). 79326I.A.C. 2-3-1. "326 I.A.C. 2-3-1.

AIR POLLUTION CONTROL

under its physical and operational design."" Physical or operational limits on the capacity of a source to emit a pollutant, such as pollution control equipment or operational limits, may be treated as part of the operational design, and thus reduce the potential to emit, if such limitation is "enforceable." The permit requirements provided in this section apply to several types of sources. First, they apply to new major stationary sources or major modifications constructed in areas designated as nonattainment areas for any pollutant for which the major stationary source or modification is considered to be major.82 Second, if a source or modification becomes a major stationary source or major modification by virtue of a relaxation in any enforceable limitations on the capacity of this source or modification to emit a pollutant, the requirements of the rule apply to the source or modification as though it had not yet been constr~cted.~~ Third, major stationary sources or major modifications locating in any area designated as attainment which would exceed certain significant impact levels for any pollutant which is designated as nonattainment must meet the requirements of this section.84 The section does not apply, however, to sources or modifications that are major stationary sources or major modifications only if fugitive emissions are considered in calculating the potential to emit and if the source does not belong to any of certain specified categorie~.~~ Similarly, for purposes of the rule, secondary emissions from a source are not considered in determining whether the source would qualify as a major source.86 However, if a source is subject to the rules on the basis of the direct emissions from it, the applicable conditions must be met for secondary emissions as well.87 Some sources must comply with these requirements only under certain conditions. For sources proposing to locate in an attainment area, if the emissions from the proposed source

"326 I.A.C. 2-3-1. '526 I.A.C. 2-3-2(a).

83326I.A.C. 2-3-2@). 84326I.A.C. 2-3-2(d). "326 I. A.C. 2-3-2(e). 86326I.A.C. 2-3-2(Q.

87326I.A.C. 2-3-2(Q.

INDIANA ENVIRONMENTAL LAW HANDBOOK would cause a new violation of an ambient air quality standard, but would not contribute to an existing violation, IDEM may grant approval only if certain specified conditions are met." Emissions from temporary sources that will be relocated outside the nonattainment area after a short period of time or emissions resulting from the construction phase of a new source must only comply with a portion of these rules.89 In addition, if an area is redesignated nonattainment, any source which would not have been required to submit a permit application under the PSD regulations will not be subject to the provisions of the emissions offset rule if construction commences within eighteen months of the area's rede~ignation.~' Certain facilities may be exempted from some of the permit requirements. These facilities include resource recovery facilities burning municipal solid waste, sources which must switch fuels due to a lack of adequate fuel supplies and sources which are required to be modified as a result of EPA regulation^.^' These exemptions may be granted only if the applicant demonstrates that it did its best to obtain sufficient emission offsets to comply with the permit requirement, that these efforts were unsuccessful, that the applicant has secured all available emission offsets and that the applicant will continue to seek the necessary emission offsets and apply them when they become available.92

5.2 CONSTRUCTION PERMIT REQUIREMENTS Prior to issuance of a construction permit, specific requirements must be met. These are: 1. The proposed major new source or major modification must demonstrate that the source will meet all applicable emission requirements.

2. The applicant must apply emission limitation devices or techniques to the proposed construction or modification such that the lowest achievable emission rate (LAER) for the applicable pollutant will be achieved.

3. The applicant must demonstrate that all existing major sources owned or operated by the applicant in the State of Indiana are in compliance with all

88326I.A.C. 2-3-2(g).

89326I.A.C. 90326I.A.C. 91326 I.A.C. 92326I.A.C.

2-3-2@). 23-2(c). 2-3-2(i)(1). 2-3-2(i)(2).

AIR POLLUTION CONTROL

applicable emission limitations and standards or demonstrate that they are in compliance with an enforceable compliance schedule. Emissions resulting from the proposed construction or modification must be offset by a reduction in emissions of the same pollutant from existing source emission limits which were used to demonstrate reasonable further progress towards attainment of ambient air quality standards. The emission offsets are to be greater than one for one so that there will be reasonable progress toward attainment of the applicable ambient air quality standards. 4.

No emission offset will be approved unless it guarantees a positive net air quality benefit.

5.

The applicant is to obtain the necessary pre-construction approvals and to 6. meet all permit requirements as specified.93 All emission offset evaluations are subject to specific provisions."

5.3 EMISSION OFFSETS Emission offsets may be "banked." As specified by the rule, for new sources obtaining permits by applying offsets, IDEM may allow offsets that exceed the requirements of reasonable further progress toward attainment to be banked or "saved to provide offsets for a source seeking a permit in the future."95 Under the provisions of this rule, an existing source that reduces its own emissions beyond those required by the regulations may, with the prior approval of IDEM, bank its excess emission reduction. IDEM may then allow these banked offsets to be used under the pre-construction review program as long as these banked emissions are identified and are not used in the control strategy submitted to EPA to demonstrate attainment and maintenance of ambient air quality standards.96 Banked emissions are the property of the person providing the offset and are to be identified and registered by IDEM.

Banked offsets are also to be

incorporated in an enforceable permit.97 Emission reductions may be banked for five years,

93326I.A.C. 2-3-3(a). "326 I.A.C. 95326I.A.C. 96326I.A.C. w326 I.A.C.

2-3-3(b). 2-3-4(a). 2-3-4@). 2-3-4(c).

INDIANA ENVIRONMENTAL LAW HANDBOOK

plus the time for con~truction.~~ IDEM may not approve construction of a source using banked offsets if the new source would interfere with the attainment and maintenance of ambient air quality standards or if such use would violate any other condition set forth in the regulation^.^^ In addition, controls are provided on the location of offsetting emissions. Under the regulations, when emission offsets involve volatile organic compounds or nitrogen oxides the offsets may be obtained from sources located anywhere in the broad vicinity of the proposed new source. Generally, offsets for these components are acceptable if obtained from the same nonattainment area as the new source, or from other areas which may be contributing to the problem at the proposed new source location. It is desirable, however, to obtain offsets from sources located as close to the proposed new source site as possible. When proposed offsets are from sources located at greater distances from the new source, IDEM may increase the ratio of the required offsets. In that case the applicant must show that nearby offsets were investigated and reasonable alternatives were not a~ailable.'~~ In the case of sulphur dioxide, particulates and carbon monoxide emission offsets, the applicant must use atmospheric simulation models to ensure that the emission offsets provide a positive net air quality benefit. However, if the offsets are obtained from an existing source on the same premises, or in the immediate vicinity of the new source, and the pollutants disperse from substantially the same effective stack height, atmospheric simulation modeling may be waived and positive net air quality benefit may be ass~rned.'~' 6.0 USE OF THE "BUBBLEttAPPROACH Under the regulations, an existing stationary source, or a combination of two or more stationary sources with multiple emission points, may propose to meet the total emission control requirements for a given criteria pollutant through the use of a "bubble." This approach may be used whether the sources are owned by the same or different owners.'" defined as: '$326 I.A.C. 2-3-4(d). 99326I.A.C. 2-3-4(e). '"326 I.A.C. 2-3-5(a). '"326 I.A.C. 2-3-5@). lo2326I.A.C. 2-4-l(a).

A "bubble" is

AIR POLLUTION CONTROL

An alternative control strategy which allows a source to reduce control requirements at one (1) point by increasing controls correspondingly at another. The bubble can be applied both within a single plant and between different plants in the same geographical area. All applicable emission points are visualized as being under one (1) hypothetical dome with only one (1) emission point.lo3 The provisions of the bubble regulations apply to emissions of all criteria pollutants, including, but not limited to, total suspended particulates, sulphur dioxide, volatile organic compounds, carbon monoxide and nitrogen oxide. '04 The bubble approach may be used only after approval by IDEM wd after incorporation into enforceable permits. Approval will be granted only if specified conditions are met.lo5 These conditions vary with whether the proposed bubble is within an attainmentlo6or a. nonattainmentlm area and include air pollutant tradeoffs only for the same pollutant.108 No hazardous emissions may be offset by nonhazardous emission^.'^ Sources not in compliance with applicable requirements specified in other parts of the regulations may propose to use the bubble approach if that approach will result in compliance with the emission standards for the pollutant. 'lo Compliance with the bubble approach will be determined based on the emission limitations and conditions as established in the permit issued in conjunction with the bubble."' Records must be kept and must be made available by the owner or operator of the facility."* In addition, certain types of bubbles are to be incorporated in permits and submitted to the U.S.

lo3326I.A.C. 24-l(a). 'OQ326I.A.C.

24-16).

lo5326I.A.C. 2-4-2(a). lo6326I. A.C. 2-4-2(a)(2)(A). lm326 I.A.C. 2-4-2(a)(2)@) and (C). '"326 I.A.C. 2-4-2(a)(6). lW326I.A.C. 2-4-2(a)O. "'326 I.A.C. 2-4-2(a)(8). "'326 I.A.C. 243(a). 112326I.A.C. 24-36).

INDIANA ENVIRONMENTAL LAW HANDBOOK EPA as SIP revisions.113 All bubble permit applications are subject to public notice and comment procedures. 114 7.0 NEW SOURCE PERFORMANCE STANDARDS

New source performance standards apply to the owner or operator of any stationary source for which standards are prescribed under the federal regulations found at 40 C.F.R. Part 60.115 For purposes of the Indiana regulations, those federal regulations are adopted and incorporated by reference. 8.0 NATIONAL EMISSION STANDARDS FOR HAZARDOUS POLLUTANTS

Indiana had not adopted an "air toxics" program prior to the 1990 Clean Air Act Amendments. During late 1989 and early 1990, IDEM began the preliminary work to adopt such a program in the event the federal legislation did not pass. With the enactment of amended

8 112 of the Clean Air Act, 42 U.S. C. 5 7612, Indiana has suspended work on its program. Prior to the 1990 Amendments, Indiana adopted and incorporated by reference 40 C.F.R. Part 61, with the exception of certain specified sections.l17 Specifically, emission standards are adopted for asbestos,l18 beryllium,11g mercury120 and benzene.121 In addition, the federal standards for fugitive emission sources are a d 0 ~ t e d . l ~ ~

113326I.A.C. 2-4-4.

114326I.A.C. 2-45.

"'326 I.A.C. 12-1-l(a). 116326I.A.C. 12-1-I@). 117326I.A.C. 14-1-l(b). 118326I.A.C. 14-2-1.

"'326 I.A.C. 14-3-1; 326 I.A.C. 14-4-1. 12'326 I.A.C. 14-5-1. 12'326 I.A.C. 14-7-1. . 12%26I.A.C. 14-8-1.

AIR POLLUTION CONTROL 9.0 EMISSION LIMITATIONS FOR SPECIFIC TYPES OF OPERATIONS Emission limitations are provided for certain specified types of operations. Those

operations include existing foundries,'"

sulfuric acid plants,124 coke oven batteries,'25

fiberglass insulation man~facturing,'~~ and primary aluminum plants. 10.0 REGULATION OF SPECIFIC AIR CONTAMINANTS 10.1 PARTICULATE RULES

The major thrust of the existing Indiana SIP for total suspended particulate ("TSP") matter is on the existing nonattainment counties of Dearborn, DuBois, Lake, Marion, Vigo, Wayne, Howard, Vanderburgh, Clark and St. Joseph.12' For each of these counties, IDEM has created a TSP strategy which lists specific emission limits for each significant source in the county.lZ9 For sources in those counties not specifically listed, general limitations apply,'30 and there are specific limitations applicable to fuel combustion steam generators, asphalt concrete plants, grain elevators, foundries, and mineral aggregate operations.13' General limits on process emissions'32 and fugitive dust emissions'33 in attainment areas are provided as well as fugitive particulate matter controls for nonattainment areas.'34 Particular attention should be paid to the opacity reg~lation,'~~ especially the provision which makes an opacity violation

prima facie evidence of a violation of applicable mass emission limits.'36 The use of opacity

lZ3326I.A.C. 11-1. 124326I.A.C. 11-2. 12'326 I.A.C. 11-3. '26326 I.A.C. 11-4. '"326

I.A.C. 11-5.

12'321 I.A.C. 6-1-7.

12'326 I.A.C. 6-1-8, through 6-1-18. A separate rule exists for Bethlehem Steel's facility in Porter County. 326 I.A.C. 6-6. 130326 I.A.C. 6-1-2(a). 131326I.A.C. 6-1-2(b) through (g).

'32326 I.A.C. 6.3. '33326 I.A.C. 6-4. 134326I.A.C. 6-5. 135326I.A.C. 5-1. 13'326 I.A.C. 5-1-5(a).

INDIANA ENVIRONMENTAL LAW HANDBOOK is an extremely popular enforcement tool in Indiana, which also has, and actively enforces, an open-burning rule. 137 IDEM is currently in the process of adopting a source-by-source control strategy, similar to that in 326 I.A.C. 6-1-10 and 6-1-11, for PM-10 sources in Lake County. This SIP has not yet been proposed in the Indiana Register.

10.2 SULPHUR DIOXIDE RULES The 1990 Clean Air Act Amendments radically altered the approach to control of SO2 emissions by assigning so-called SO2 "allowances" to fossil fuel-fired electric generating units. However, these allowances are in addition to, not in lieu of, the applicable SIP. Sulphur dioxide emissions from fuel combustion facilities are limited to 10.8 grams per million calories heat input unless changed by another provision of the rule.138 Owners or operators of sources or facilities subject to these rules must submit reports to IDEM based on fuel sampling and analysis.139 All fuel combustion sources with a total plant capacity of greater than 500 million Btu heat input must install continuous air quality and meteorological monitors.140 In addition, specific sulphur dioxide emission limitations are provided for Lake, Marion, Vigo, Wayne, LaPorte, Jefferson, Sullivan, Vermillion, Floyd, Morgan, Gibson and Dearborn counties.141 10.3 OZONE AND VOLATILE ORGANIC COMPOUND RULE

10.3.1 GENERALLY Specific volatile organic compound emission limitations are provided for surface coating operations,14* solvent metal cleaning operation^,'^^ and petroleum sources.144 In addition, various miscellaneous operations are also covered, including asphalt paving,14' synthesized

137326I.A.C. 4-1. 13'326 I.A.C. 7-1-2(b). 13'326 I.A.C. 7-1-3. 140326I.A.C. l4'326 I.A.C. 14?326 I.A.C. 143326I.A.C. 144326I.A.C. 14'326 I.A.C.

7-1-4. 7-1-8 through 326 I.A.C. 7-1-20. 8-2. 8-3. 8-4. 8-5-2.

AIR POLLUTION CONTROL

pharmaceutical manufacturing operation^,'^^ pneumatic rubber tire man~facturing,'~~ and graphic arts operation^.'^^ 10.3.2 MOTOR VEHICLE EMISSION REGULATIONS

All motor vehicles registered in Clarke, Floyd, Lake and Porter counties, as well as motor vehicles registered outside these counties but used to commute to employment in any of these counties, are subject to these reg~1ations.l~~ All owners and operators of motor vehicles subject to the regulations must have their vehicles inspected and must display a vehicle compliance sticker.lS0 Violation of the regulations subjects the owner or operator to suspension or cancellation of the vehicle's registration.lS1 10.4 CARBON MONOXIDE EMISSION RULES

All stationary sources of carbon monoxide emissions are subject to these regulations.15* Specific emission limits are provided for petroleum refining emissions,1s3 ferrous metal

smelter^,'^ and refuse incineration and burning equipment.ls5 10.5 LEAD RULES

Lead emission standards are source-specific. Therefore, emission and operating provisions are listed for certain specified sources of lead emissions. In addition, all such sources must comply with regulations controlling the emission of fugitive lead dust.lS6

14'326 I.A.C. 8-5-3. 14'326 I.A.C. 8-5-4.

14'326 I.A.C. 8-5-5. 149326I.A.C. 13-1-l(a)(l). '"326 I.A.C. 13-1-3(a). "'326 I.A.C. 13-24

15%26I.A.C. 9-1-1.

lS3326I.A.C. 9-1-2(1). lH326 I.A.C. 9-1-2(2). lS53261.A-C. 9-1-2(3). lS6326I.A.C. 15-1.

INDIANA ENVIRONMENTAL LAW HANDBOOK 11.0 MONITORING, RECORD KEEPING AND REPORTING REQUlREMENTS 11.1 MONITORING REQUIREMENTS

Air pollution sources in certain specified categories must continuously monitor and record emissions of air pollutants. These specified categories are: 1. Fossil fuel fired steam generators of greater than 250 million Btu per hour heat input capacity. 2. Nitric acid plants of greater than 300 tons per day production capacity. 3. Sulfuric acid plants of greater than 300 tons per day production capacity. 4. Petroleum refinery catalyst regenerators for fluid bed catalytic cracking units

of greater than 20,000 barrels per day fresh feed capacity.lS7 The owner or operator of an emission source in any one of these categories must comply with the monitoring requirements set forth in the regulation^.'^^ 11.2 RECORD KEEPING

Record keeping requirements under the Indiana air regulations are found at several locations. First, under the monitoring regulations discussed above, facilities required to monitor must also maintain a file of all data collected under the monitoring program for a minimum of two years. ls9 Second, under the regulations controlling equipment malfunctions a record is to be kept of all malfunctions of any facility or pollution control equipment that result in violations of applicable air pollution control reg~1ations.l~~ These records are to be kept for three years and must be made available to IDEM upon request.161 Additional record keeping requirements have been discussed throughout this chapter.162

lS7326I.A.C. 3-1-1. '"326 I.A.C. 3-1-2. "'326 I.A.C. 3-1-10. 160326I.A.C. 1-6. l6'326 I.A.C. 1-6-2. 162~ee, e-g., Section 3.4.

AIR POLLUTION CONTROL 11.3 REPORTING

As with record keeping requirements, reporting requirements are found in the monitoring and malfunction regulations. Under the monitoring requirements, owners and operators of facilities subject to monitoring must submit a written report of any excess emissions to IDEM each calendar quarter. If known, the nature and cause of the emissions must be in~1uded.l~~ Pursuant to the regulations governing malfunctions, any malfunction of a facility or of air pollution control equipment, if that malfunction lasts longer than one hour, must be reported to IDEM. Notification must be made as soon as practicable, but in no event later than four hours after the beginning of the occurrence. Specific information regarding the scope and expected duration of the malfunction must also be given.'64 12.0 ASBESTOS REGULATION

The 1990 Indiana General Assembly amended various sections of the statute governing the Air Pollution Control ~oard'~'to provide for some regulation of asbestos and asbestos removal contractors. The statute now defines asbestos,166asbestos containing material,'67 asbestos contract~r,'~~ asbestos contractor license169and asbestos project.170 In addition, the statute provides for licensing of asbestos contractors and prohibits those without a license from performing asbestos abatement at elementary and secondary schools and facilities subject to either EPA or IDEM regulations regarding asbestos emission contr01.l~~ The statute provides that anyone entering into a contract to remove asbestos, and to receive compensation

-

163326I.A.C. 3-1-10.

l6%!6 I.A.C. 1-6-2. %d.

Code $ 13-1-1.

16%d. Code $ 13-1-1-2(ii). 1671nd. Code $ 13-1-1-26). "Asbestos containing material" is defined as material that contains more than 1% asbestos by area that either is friable or has a reasonable probability of becoming friable in ordinary use of the building. Asbestos containing resilient floor coverings are specifically excepted unless sanded, beadblasted or otherwise mechanically pulverized. 16%d. Code $ 13-1-1-20.

1691nd. Code 3 13-1-1-2(1). 17%d. Code 6 13-1-1-2(m). 17'Ind. Code 5 13-1-1-14(b)(l).

INDIANA ENVIRONMENTAL LAW HANDBOOK

for the work, must be licensed.ln

However, the statute exempts from the licensing

requirements persons performing work on private residential dwellings or commercial residential buildings with fewer than five dwelling units and abatement work performed during an emergency.173 Under the new licensing requirements, an asbestos contractor must compile and maintain records regarding each abatement project performed.174 These records must include the date and location of the project, a summary of procedures used and the name and address of the disposal site used for the disposal of asbestos containing material. The statute also provides for inspections of asbestos abatement projects by ID EM'^' and for investigations by IDEM into contractors' abatement procedure^.'^^ If IDEM finds that an abatement project is not being performed in accordance with regulations, it may enjoin further workIn and reprimand the contractor or revoke the contractor's 1i~ense.l~~ In addition, the city of Indianapolis has enacted an Asbestos Abatement Regulation applicable to demolitions and renovations within Marion County. Under this regulation, demolitions and renovations involving the removal of friable asbestos from non-residential and specified residential buildings cannot take place unless the contractor possesses a certificate of operation, a notice of intent has been filed and specified work practices are followed. Certificates of operation may be obtained from the Indianapolis Air Pollution Control Division, Department of Public Works ("Division"), by completing the appropriate application form. Certificates are valid for two years and allow the permit holder to remove friable asbestos materials any number of times during the two years. Those required to obtain certificates are: asbestos abatement contractors; comniercial and industrial establishments that use their own employees to remove friable asbestos; and any person or company hired to remove friable

lnInd. Code 5 13-1-1-24.

Code 8 13-1-1-14(b)(6), 17%d. Code 8 13-1-1-18. %d.

17'~nd. Code Q 13-1-1-21. 17'Ind. Code Q 13-1-1-19.

lnlnd. Code 5 13-1-1-22. 1 7 8 ~ dCode . 5 13-1-1-23.

AIR POLLUTION CONTROL

asbestos from a building. The owner of a single family residence, a duplex or a triplex who removes the material himself need not obtain a ~ertificate.'~~ In addition, demolition and renovation involving the removal of friable asbestos cannot begin until a Notice of Intent has been filed with the Division. Notice of Intent forms are to be provided by the Division to holders of Certificates of Operation. For renovation projects involving removal of at least 25 linear feet of asbestos on pipes, or at least 15 square feet of other asbestos, notice must be given at least 10 days before removal begins. Notices for all demolitions must be given at least 20 days before removal begins. Special notice provisions apply for ordered and emergency renovations and demolitions. Quarterly notification reports may be filed if the ownerloperator has a regular, ongoing removal and maintenance program in place at its own fa~i1ities.l~~ As well as applying the federal regulations involving work practices, the Indianapolis regulation requires that additional work practices be followed unless an exemption is obtained from the Division Administrator. These practices apply to all renovations and demolitions involving friable asbestos removal, whether or not they are covered by the federal regulations. lsl Although owners of single family residences, duplexes or triplexes that do the removal work themselves need not obtain Certificates of Operation, they still must follow set procedures. These procedures include notifying the Division, ,by telephone, of the removal at least three business days before removal begins; informing the Division of the removal dates and the approximate quantity of asbestos to be removed; adequately wetting the material to be removed and placing it in sealed, labeled bags; and disposing of the material at an approved 13.0 ENFORCEMENT Enforcement of the Air Pollution Regulations is governed by the statutory provisions applicable overall to the environmental laws and regulations. Under these statutory provisions,

INDIANA ENVIRONMENTAL LAW HANDBOOK

an investigation may be initiated by IDEM upon receipt of information of any alleged violation of the reg~1ations.l~~ If an investigation discloses a possible violation, IDEM must notify the alleged violator in writing of the suspected violation and offer the alleged violator an opportunity to enter into an agreed order to correct the vi~lation.'~If an agreed order is not entered into, IDEM is to issue a written notice specifying the provision allegedly being violated. This notice is to be accompanied by an order either requiring that specific action be taken or assessing a civil penalty, or both.18' If, as a result of an investigation, IDEM concludes that contamination has reached the point where it constitutes a "clear and present danger to the health and safety" of persons in the area, IDEM can request that the governor declare an emergency. The governor may then issue an emergency order requiring that the contamination cease.186 Any person who violates the Air Pollution Regulations is liable for a civil penalty not to exceed $25,000.00 per day. In addition, any person violating an emergency order is liable for an additional civil penalty not to exceed $500.00 per hour of violation. It is a Class C infraction to obstruct, delay, resist, prevent or interfere with IDEM in any inspection or in~estigati0n.l~~ Criminal penalties may also be imposed on anyone who intentionally, knowingly, recklessly or negligently violates the Air Pollution Control Rules. Such a violation is termed a Class D felony and, in addition to imprisonment, may subject a violator to a fine of not less than $2,500.00 nor more than $25,000.00 per day or, if there has been a previous conviction, a fine of not more than $50,000.00 per day. In addition, any person who knowingly makes a false statement in any application or tampers with any monitoring device commits a Class B misdemean~r.'~~

1831nd.Code 5 13-7-11-1. lWInd. Code

5 13-7-11-2@).

18'Ind. Code 5 13-7-11-2(c).

18%d. Code 5 13-7-12-1.

18'hd. Code 5 13-7-13-1. 1881nd. Code 8 13-7-13-3.

CHAPTER 3 WATER POLLUTION CONTROL 1.0 INTRODUCTION

This chapter will discuss Indiana's program to control the discharge of pollutants from point sources to the waters of the state and the indirect discharge of pollutants to publicly-owned treatment works ("POTWsW).Indiana was granted authority by U.S. EPA to implement the National Pollution Discharge Elimination System ("NPDES") permit program, effective January 2, 1975.' Indiana's program has been incorporated into Title 327 of the Indiana Administrative Code ("I.A.C.").

Indiana's program took a dramatic turn in 1990 with the

adoption of very stringent and controversial toxic water quality standards which became effective February 1, 1990. These new water quality standards will have a serious impact on effluent limits in renewed NPDES permits. Because Indiana's NPDES provisions closely resemble those found in 40 C.F.R. Parts 122, 125 and 403, this chapter will present merely an overview with citations to the applicable provisions of the I.A.C. Decision making and water quality standards will be discussed in greater detail. 2.0 INDIANA NPDES PERMIT PROGRAM

2.1 GENERAL NPDES REQUIREMENTS

The general NPDES requirements are set forth in Rules 1 and 2.* Permits are required for any discharge of a pollutant from a point source to "waters of the state," defined as:

. . .such accumulations of water, surface and underground, natural and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this state, but the term does not include any private pond, or any off-stream pond, reservoir, or facility built for reduction or control of pollution or cooling of water prior to discharge unless the discharge therefrom causes or threatens to cause water poll~tion.~

'40 Fed. Reg. 4033, January 27, 1975. 2327I.A.C. 5-1 and 5-2. 3327I.A.C. 5-1-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK The definitions of "discharge of a pollutant" and "point source" are co-extensive with the federal

definition^.^ The general conditions also cover the requirement for a permit: exclusions from the permit req~irement,~ standard terms and conditions:

monitoring, record keeping and

rep~rting,~ and permit modification, revocation and reissuance, and terminati~n.~ On August 20, 1991, the Water Pollution Control Board adopted a rule which dramatically increases

NPDES permit fees. Previously, fees were generally $150.00 plus $50.00 for each outfall in excess of one.1° Under the new schedule, fees are based upon the volume of the discharge and the type of treatment used; i.e., physical, chemical, biological or none. Fees will range from seven to thirty cents per one hundred gallons of discharge per day with a cap of $80,000.00 per permit per year. Counties, municipalities, townships and other governmental entities are exempt from the new fee schedule but subject to the old schedule.

These rules are effective

November 21, 1991, and were to be published in the December 1, 1991, Indiana Register. The rules are currently the subject of numerous appeals. 2.2 PERMIT PROCEDURES

Applications for new or renewed permits must be submitted 180 days prior to the date of the first discharge or expiration of the existing permit," on forms specified in the regulations.12 The Indiana rules do not recite what information must be included, but this is set forth in detail in the forms and in 40 C.F.R. 8 122.21. 2.2.1 DRAFI' PERMIT If IDEM tentatively decides to issue a permit, a draft permit is issued which must contain all general conditions, all effluent limitations, standards, and prohibitions including variances

4 ~ d See, . also 40 C.F.R. $ 122.2.

'327 I.A.C. 5-2-2 and 5-23. 6327 I.A.C. 5 - 2 4 '327 I.A.C. 5-2-8. '327 I.A.C. 5-2-13, 5-2-14 and 5-2-15. 9327 I.A.C. 5-2-16. "327 I.A.C. 5-2-21. "327 I.A.C. 5-3-2. 12327 I.A.C. 5-2-3. For new sources, 327 I.A.C. 5-2-3(f) refers to Form 2B. Please note that Form 2B was replaced by Form 2D in September 1986.

WATER POLLUTION CONTROL

or modifications, all compliance schedules, and all monitoring, record keeping, and reporting requirements.13 Each draft permit must be accompanied by a statement of basis14 or a fact sheet.''

A statement of basis may only be used in those cases in which a fact sheet is not

necessary. l6 2.2.2 PUBLIC NOTICE Each draft permit must be subject to public notice and a 30-day period for public comments."

In addition to these public notice requirements, Indiana law'' requires that, as

part of the permit application, the applicant must identify all persons of whom it has knowledge that may have a substantial and direct proprietary interest in the issuance or denial of the permit. 2.2.3 PUBLIC HEARING A public hearing must be held whenever IDEM determines, on the basis of requests, that

there is a substantial interest in a draft permit, or

be held at the discretion of IDEM

whenever such a hearing might clarify one or more issues involved in the permit decision.lg The requirements applicable to a public hearing are identical to those applicable to public notice of the public comment period. At the hearing any person may submit oral or written statements and data concerning the draft permit, although the submission of comments in writing may be required.20 All persons must raise all reasonably ascertainable issues and submit all arguments and a summary of the factual grounds supporting those arguments by the close of the comment period. 2' If any information or argument submitted during the public comment period appears to raise substantial new questions concerning the permit, IDEM may formulate a new draft permit,

13327I.A.C. 5-3-6. 14327I.A.C. 5-3-7.

"327 I.A.C. 5-3-8. 16327I.A.C. 5-3-7. 17327I.A.C. 5-3-12. 181nd.Code 8 4-21.53-5(b). "327 I.A.C. 5-3-9(b). 20327I.A.C. 5-3-9(b)(4).

2'327 I.A.C. 5-3-9(c).

INDIANA ENVIRONMENTAL LAW HANDBOOK revise the fact sheet and reopen the public comment period, or merely reopen the public comment period and allow additional ~omrnents.~' 2.2.4 FINAL DECISION AND ADJUDICATORY HEARING

Following the close of the public comment period, IDEM may issue a final permit decision, which must describe and respond to each significant comment on the draft permit raised during the public comment period or the public hearing.23 The notice must also include a reference to the statutory procedures for contesting the decision by requesting an adjudicatory hearing.24 Appeals requesting adjudicatory hearings must be filed with the Water Pollution Control Board within 15 days after receipt of the final decision2' and must state with particularity the reasons for the request and the permit terms and conditions which the person making the request deems appropriate to satisfy his or her objection^.^^ Stays of contested permit conditions are llpt automatic as under the federal rules, but must be requested in the appeaLn If the contested provisions are stayed, all provisions of the previous permit which correspond to the stayed provisions, and are consistent therewith, continue in effect until final res~lution.~~ The foregoing provisions (i.e., public notice, comment, final decision and appeal) apply equally in cases in which IDEM'S initial tentative decision is to deny a permit application.29 2.2.5 MODIFICATION, REVOCATION AND REISSUANCE, AND TERJMINATION The circumstances which may justify modification, revocation and reissuance or termination30 are identical to the federal regulations. If IDEM decides that any such request is not justified, the requestor must be given a brief written response giving the reason for the

22327 I.A.C. 5-3-11. 23327I.A.C. 5-3-15. 24327I.A.C. 5-3-14(a)(l)(A). "Ind. Code 8 13-7-10-2.5(c). 261nd. Code § 13-7-10-2.5(d). 271nd. Code § 13-7-10-2.5(e). 28327I.A.C. 5-3-14(c)(2). 29327 I.A.C. 5-3-6(c). 30327 I.A.C. 5-2-16.

WATER POLLUTION CONTROL

decision, but such denials are not subject to public notice, comment or hearings.31 If IDEM tentatively decides to grant the request, or to terminate a permit, the procedures applicable to the issuance of permits apply equally to that decision.32 Only those provisions to be modified can be reopened; all other aspects of the permit remain in effect.33 2.3 SPECIAL NPDES PROGRAMS AND GENERAL PERMITS

Indiana has certain additional provisions applicable to "special" activities subject to NPDES permit requirements. These include underground injection fa~ilities,~~ concentrated

animal feeding operation^,^' and separate storm sewers.36 There are also provisions for general permits which may be issued to regulate discharges of wastewater which result from substantially similar operations, are of the same type wastes, require the same effluent limitations or operating conditions, require similar monitoring, and are more appropriately controlled under a general permit rather than by individual permits.37 The NPDES program initially approved by EPA in January 1975 did not contain this provision but it was subsequently adopted in 1987 and submitted to EPA for approval. EPA approval was granted on May 7, 1991.38 Discharges intended to be covered by general permits include non-contact cooling water discharges of one million gallons per day or less, coal mine and terminal discharges, stone/sand/gravel quarry discharges, pipeline hydrostatic test water discharges, discharges from potable water treatment plants, petroleum terminalltank farm discharges, groundwater remediation project discharges, returned supernatant from dredging operations, semi-public and other similar sanitary treatment plants, and storm water di~charges.~~ In April 1992, the Water Pollution Control Board issued proposed rules to implement the general permit program together with specific rules to implement a general permit program for

31327 I.A.C. 5-3-3(c).

32327I.A.C. 5-3-3@).

33327I.A.C. 5-36(d)(2). '327 I.A.C. 5-4-2. 35327I.A.C. 5-4-3. 36327I.A.C. 5-4-6. "327 I.A.C. 5-4-8. 3856Fed. Reg. 21158. 39~d.

INDIANA ENVIRONMENTAL LAW HANDBOOK storm water discharges associated with construction activities and industrial activities. Other early general permit rules will likely apply to mining and non-contact cooling water. The administrative procedure requirements will require from six to twelve months for final adoption following preliminary adoption. 2.4 TECHNOLOGY BASED EFFLUENT LIMJTATIONS Indiana merely incorporates by reference technology-based effluent limits adopted by U.S. EPA?O including secondary treatment requirements for POTWS.~'

.

2.5 VARIANCES AND ALTERNATIVE LIMITS As with technology-based effluent limitations, Indiana merely passes through the statutory variances and modifications, as well as extensions of compliance dates, permitted by the Clean Water Act and applicable U.S. EPA regulation^.^^

While only U.S. EPA can grant a

fundamentally different factors variance, these variances are subject to veto by the state.43 The proper procedure is therefore to submit the application to IDEM which, if it approves, will forward the application to U.S. EPA.44 Specific time deadlines for the submission of applications for variances are imposed.45 PRETREATMENT STANDARDS FOR DISCHARGES TO PUBLICLY OWNED 2.6 m A T M E N T WORKS Indiana's pretreatment program faithfully follows the federal regulationd6under which an indirect discharger need not obtain an NPDES permit, but must rather meet pretreatment requirements imposed by the POTW to ensure compliance with its own NPDES permit. General provisions containing definitions, enforcement and reporting requirements are contained in Rule

40327 I.A.C. 5-5. 41327I.A.C. 5-5-3. 42~heseinclude the fundamentally different factors variance, 327 I.A.C. 5-6, alternative thermal limitations, 327 I.A.C. 5-7, extensions under CWA 301(i), 327 I.A.C. 5-8. 4 3 $ 30(n)(l), ~ 33 ~ U.S.C. ~ $ 1311(n)(l). ''k7 I.A.C. 5-6-2(a). 45327I.A.C. 5-3-4. 4 6 ~ e e40 , C.F.R. Part 403.

WATER POLLUTION CONTROL 11 .47 The general pretreatment standards, categorical pretreatment standards and combined

wastestream formula are in Rule 12.48 Any POTW that receives industrial discharges which pass through, interfere with or are otherwise subject to a pretreatment standard and that has or acquires a total design hydraulic ,capacity of 1 mgd or greater must establish a POTW pretreatment program.49 A POTW otherwise subject to this requirement may be exempted if it has a design capacity less than 5 mgd and can demonstrate that, because of the limited number of industrial users, low volume of pollutants discharged to the POTW from industrial users in comparison to total flow, or other reasons, there is no actual or reasonable probability of significant pass-through or interference."

Conversely, a POTW with a design capacity of less than 1 mgd may be

required to develop a program if IDEM determines one is needed to prevent significant passthrough or interference and the POTW can successfully operate such a program.,'

POTW

pretreatment programs must meet specific requirementsSZrelating to legal authority, permitting authority inspections and monitoring, reporting requirements, enforcement, and the administrative ability to carry out the program. One of the requirements imposed upon POTWs is to possess the authority to obtain remedies for noncompliance including injunctive relief and civil or criminal penal tie^.'^ In this regard, it is important to note that many POTWs have provisions in their ordinances which allow them to seek reimbursement from industrial users for penalties imposed upon the POTW for violations of its NPDES permit if it can be demonstrated that that violation was in turn caused by a violation of a pretreatment requirement by a specific industrial user. This sanction may be in addition to any surcharge imposed for discharges of certain pollutants (typically TSS and BOD,) in excess of applicable limits. 47327I.A.C. 5-11.

48327 I.A.C. 5-13. The federal categorical pretreatment standards in 40 C.F.R. Parts 410 through 471 are incorporated by reference in 327 I.A.C. 5-126.

49327I.A.C. "327 I.A.C. "327 I.A.C. '527 I.A.C. 53327I.A.C.

5-13-l(a)(l). 5-13-l(b). 5-13-l(a)(2). 5-13-2. See, also 40 C.F.R. 9 403.8(f). 5-13-2(f)(l)o(i).

INDIANA ENVIRONMENTAL LAW HANDBOOK 2.6.1 INDUSTRIAL WASTE PRETREATMENT PERMITS

An industrial waste pretreatment ("IWP") permit is required for any discharge to a POTW which is not required to have a POTW pretreatment program if the discharge (a) is from

a source subject to a categorical pretreatment standard; or (b) contains pollutants which interfere with or pass through the POTW so as to cause or significantly contribute to violations of water quality standards; or (c) is otherwise incompatible with the POTW."

Permit applications are

made to IDEM and must be submitted within 120 days of the date on which an existing source becomes subject to the permit requirement, or 180 days prior to the commencement of a new dis~harge.'~ Renewals are due 180 days prior to expiration of an existing permks6 The requirements for conditions and limitations in the IWP permit, monitoring, reporting and modification, revocation and reissuance, or termination are the same as for NPDES permits.57 A practical problem with the IWP permit program is that IDEM simply does not have sufficient staff to process these, and permit applicants are often told that the application will not be processed. This obviously presents problems if the POTW will not accept the discharge without a permit. Even if it does accept the discharge, the source may be a target for a citizens' suit. 2.6.2 REMOVAL CREDITS

Indiana has in place a removal credits program under which an industrial user may obtain a revision to limits imposed by a categorical pretreatment standard to reflect demonstrated ~ in iKWC v. USEPA," the Third Circuit held consistent removal by the P O T W . ~ However,

that EPA's sewage sludge regulations were inadequate to meet the statutory requirement for a comprehensive framework to regulate the disposal and utilization of sludge, and therefore EPA was prohibited from authorizing the issuance of removal credits until adequate sewage sludge rules were adopted. While Congress, in the 1987 Amendments to the Clean Water Act, granted

"327 I.A.C. 5-15-2(a). "327 I.A.C. 5-15-3(a), (b). "327 I.A.C. 5-15-3(c). ''327 I. A.C. 5-15-4 through 5-15-12. "327 I.A.C. 5-14. 59790F.2d 289 (3d Cir. 1986).

WATER POLLUTION CONTROL a variance from that decision until August 31, 1987,60U.S. EPA did not propose sewage sludge regulations until February 6, 1989,61and has not yet finalized them. Thus, the removal credits program remains suspended.

3.0 STATE WATER QUALITY STANDARDS 3.1 TOXIC WATER QUALITY STANDARDS

On February 1, 1990, Indiana's new toxic water quality standards became effective, representing one of the most, if not the most, stringent set of such standards in the United States. These standards, set forth in 327 I.A.C. 2-1, impose both acute and chronic toxicity criteria. The acute criteria consist of the acute aquatic criterion ("AAC") measured outside of the zone of initial

and the final acute value ("FAV") (equal to 2 times the AAC)

measured in the undiluted discharge.63 The chronic criteria are designed to maintain waters free of substances in concentrations which are believed to be sufficient to injure, be chronically toxic to, or be carcinogenic, mutagenic, or teratogenic to humans, animals, aquatic life or plants.64 The criteria consist of four continuous criterion concentrations ("CCCs"): (a) a chronic aquatic criterion ("CAC") to protect aquatic life from chronic toxic effects; a terrestrial life cycle safe concentration ("TLSC") to protect terrestrial organisms from toxic effects .from the consumption of aquatic organisms and/or water; @)

(c) a human life cycle safe concentration ("HLSC") to protect human health from toxic effects from consumption of drinking water or aquatic organisms; and (d) a carcinogenic criterion to protect human health from a cancer risk of greater than one additional cancer per one hundred thousand p~pulation.~'

60~ee, 33 U.S.C. 8 1345(d)(2).

6154Fed. Reg. 5746. 62327I.A.C. 2-la(a)(l)@)(i). The "zone of initial dilution," or "ZID," is that area of the receiving stream after the end of the pipe where an instantaneous volume of water gives a one-to-one dilution of the discharge. 327 I.A.C. 2-1-9. 631i-1.

64327I.A.C. 2-1-6(a)(2). '%27 I.A.C. 2-1-6(a)(2)(A).

INDIANA ENVIRONMENTAL LAW HANDBOOK The most stringent of the CCCs apply.66 For many substances, both the acute and chronic criteria are established in Table 1 to 327 I.A.C. 2-1-6. If a different chronic criterion can be scientifically justified based on new toxicological data or site-specific conditions of water quality or resident species, such can be calculated using procedures set forth in 327 I.A.C. 2-1-8.3 through 2-1-8. 6.67 Alternate acute criteria are calculated pursuant to 327 I.A. C. 2-1-8.2.68 The stringency of these standards is caused by two factors. First, the standards were based upon merely adopting the U.S.EPA ambient water quality criteria for metals,69the socalled "Gold Book" criteria, which were not designed to be adopted as numerical water quality standards. Second, when translating the standards irito effluent limitations, the concentrations in the effluent are applied to a dilution rate (the mixing zone) calculated using one-quarter of the receiving water's average minimum seven-day consecutive flow which occurs once in ten years.70 Ironically, at this flow all surface water quality standards cease to be appli~able.~~ The application of these standards has resulted in many proposed effluent limits which are below natural background levels and, in some cases, below the level of deductibility or the practical quantification limit. 3.2 RULE 5 TASK FORCE

Since adoption of the new water quality standards, there has been much debate on how they should be implemented. IDEM had proposed major revisions to 327 I.A.C. 5 to implement the standards, which met with much resistance. Consequently, a Rule 5 "Task Force" was established consisting of representatives from IDEM, environmental groups and the regulated community. This task force is attempting to resolve a number of major issues including limits below detection levels, background levels, flow calculations, treatment of bioaccumulative substances, and appropriate procedures for variances. The current variance procedures permit a variance from an otherwise applicable water quality standard if background concentrations

'9d.

67327I.A.C. 68327I.A.C. 69327I.A.C. 70327I.A.C. 71327I.A.C.

2-1-6(a)(2)(b). 2-1-6(a)(l)(D)(i)(BB). 2-1-6(a)(3). 2-1-4(c). 2-1-5.

WATER POLLUTION CONTROL prevent attainment, if the standard is technologically infeasible to achieve, or if application of the standard would result in an effluent limit below the level of q~antification?~This, combined with the fact that variances can be granted for up to 5 years73(which is the longest term for a permit) and can be renewed, raises the possibility of permanent variances, which are of questionable validity. Any practitioner representing a source seeking a permit subject to the toxic water quality standards should be familiar with the progress of the Rule 5 Task Force. 3.3 SPILLS OF OIL AND OTHER OBJECTIONABLE SUBSTANCES

The Indiana water quality standards contain a provision which requires the reporting, containment and cleanup of any spill of oil, hazardous or otherwise objectionable substance "of such volume or mass as to cause or threaten to cause damage to the public health, safety or welfare, aquatic biota, animal life, plant life or recreation, domestic, commercial, industrial or agricultural water uses. "" A "spill" is any "unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss

. . . which enters or threatens to

enter the waters of the state."7S In the event of a spill covered by this provision, any person who owns, operates, controls or maintains any facility from which a spill occurs must: a. Immediately report the spill to the IDEM Office of Environmental Response (317/243-5155) during office hours or to the emergency center (317/633-0144) during other than office hours as soon as the person or his agent knows or should have known of the spill; b. Immediately notify the nearest downstream water user; c. Immediately contain the spill; d. Immediately after or during the containment clean up the spill; and e. Submit a written report on the spill to the office of environmental response.76

"327 I.A.C. 2-1-8.8(b). %d. Code 8 13-7-7-6. 74327 I.A.C. 2-6-2. 75327I.A.C. 2-6-1. 76327 I.A.C. 2-6-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK It is essential that every practitioner be intimately familiar with this provision because it potentially applies to every spill which occurs in the state regardless of whether the release is otherwise not subject to reporting as a release of a hazardous or regulated substance, or a hazardous or extremely hazardous chemical. The term "objectionable" substance is very broad and has been applied to salt water and vegetable oils.

CONSTRUCTION OF WASTEWATER TREATMENT FACILITIES

4.0

The general NPDES permit regulations provide that applications for new discharges (or for facility expansions, process modifications or production increases which will result in new or substantially increased discharges of pollutants or a change in the nature of the discharge) be filed at least 180 days prior to the commencement of the new di~charge.~ However, to the extent that compliance with effluent limitation guidelines or new source standards will require the construction of wastewater treatment facilities, or pretreatment facilities, the proposed applicant must be aware that separate provisions state that a construction permit is required prior to the commencement of construction of any such wastewater treatment facility.78 A permit application must be submitted at least 60 days prior to the proposed date of start of constr~ction.~~ Specific requirements for filing procedures and application contents are set forth in the reg~lation,~~ and IDEM has the authority to review and approve or disapprove asbuilt drawings if it deems this nece~sary.~'If the facility is to be subject to an NPDES permit for the discharge from the treatment facility, no separate operating permit is required under this rule. 82

5.0 LAND APPLICATION OF SEWAGE SLUDGE AND WASTEWATER As discussed above in paragraph 2.6.2, on February 6, 1989,83U.S. EPA proposed regulations establishing acceptable levels of toxic pollutants in sewage sludge, together with

n327 I.A.C. 5-3-2(a) and (b). "327 I.A.C. 3-2-1. 79327 I.A.C. 3-2-2. "327 I.A.C. 3-3-1. '527 I.A.C. 3-4-2. 8354Fed. Reg. 5746.

WATER POLLUTION CONTROL proposed acceptable management practices for sewage sludge. Previously, on March 9, 1988,84 EPA had proposed rules applicable to state sludge program requirements and methods of administration. Despite the fact that neither of these proposed regulations has been promulgated, Indiana has a program to regulate the land application of municipal, industrial and semi-public sludge, waste product and waste~ater.~'Permits are required for all land application activities except (a) those whose activities are performed pursuant to interim status or a permit under RCRA; (b) those who land apply only animal wastes, crop residues and similar agricultural wastes, mining overburden, private septic pumpings and hazardous wastes; and (c) those who land apply sludge obtained from a municipal sludge give-away program (discussed below).86 Sludges, etc., which contain a toxic pollutant are unacceptable for land appli~ation,'~except for the heavy metals lead, zinc, copper, nickel and cadmium provided they do not exceed the loading rates imposed by 327 I.A.C. 6-3-7(c) and 327 I.A.C. 6-4-7(d). There are specific, separate requirements for sludge applications8and wastewater appli~ation.~~ Finally, there are provisions by which a municipality may seek approval of a municipal sludge disposal program in which the sludge is made available to the public.90 6.0 PUBLIC WATER SUPPLIES

On May 29, 1991,91 U.S. EPA delegated primary enforcement authority to Indiana under the Safe Drinking Water Act, effective July 1, 1991. While EPA conditioned the delegation on Indiana's correction or clarification of certain provisions in the existing state program, much of this has already been accomplished. Indiana's provisions implementing the Safe Drinking Water Act are codified at 327 I.A.C. 8. Rule 192contains general public water supply standards and regulates fluoridation

8453Fed. Reg. 7642. *'327 I.A.C. 6. 86327I.A.C. 6-2-l(a), (b). "327 I.A.C. 6-2-5. "327 I.A.C. 6-3. 89327I.A.C. 64. 90327I.A.C. 6-6. 9156 Fed. Reg. 24192. '327

I.A.C. 8-1.

INDIANA ENVIRONMENTAL LAW HANDBOOK and phosphate additives. Rule 293incorporates the U. S. EPA-approved maximum contaminant limits ("MCLs") for inorganics9" and organics.95 Be advised that on June 7, 1991,96U.S. EPA promulgated new regulations on the acceptable levels of lead and copper in drinking water. For example, the new lead MCL is 15 ppb instead of 50 ppb. In order to maintain its primary enforcement authority, Indiana will be required to adopt these new MCLs by the end of fiscal year 1992, and the state has committed to EPA to meet this deadline. Rule 2 also contains MCLs for coliform b a ~ t e r i aRadium-226, ,~ 228 and gross alpha particle radioacti~ity,~~ and beta and photon radioactivity from man-made radio nuclide^.^^ Standards applicable to the construction of public water supply systems serving more than 25 perFons, or more than 15 service connections, are controlled by Rule 3.''

In order to be

approved, any such facility must conform to specified design criteria,lol in addition to "any additional requirements specified by the commissioner to produce consistently satisfactory I

results. "IM Of particular interest are provisions which give IDEM the authority to order any incorporated city or town to con~truct'~ or improvelo4a public water supply system if the lack of or inadequacy of a system results in unsanitary conditions, conditions causative of disease, or a violation of drinking water standards. Such an order must be in writing and must not be issued until the respondent has had an opportunity for a public hearing.los

93327I.A.C. 8-2. "327 I.A.C. 8 - 2 4 95327I.A.C. 8-2-5. %56 Fed. Reg. 26460. w327 I.A.C. 8-2-7. 98327I.A.C. 8-2-9. 99327I.A.C. 8-2-10. "'327 I.A.C. 8-3. "'327 I.A.C. 8-3-4(2).

'0527 I.A.C. 8-3-4(3). lo3327I.A.C. 8-5-1. "'327 I.A.C. 8-6-1. lW327I.A.C. 8-5-l(b), 8-6-l(c).

WATER POLLUTION CONTROL Finally, Rule 12'" establishes comprehensive rules for the classification of water and wastewater treatment plants and for the qualifications, examination and certification of operators.

lo6327I.A.C. 8-12.

CHAPTER 4 WATER RIGHTS AND RESOURCES 1.0 INTRODUCTION

In Chapter 3 we discussed the Indiana law relating to pollution of waters of the state. This chapter will review Indiana's efforts to allocate water resources from the point of view of water conservation and the balancing of competitive uses. While Indiana is not known for possessing a large number of lakes, rivers and streams, the state has nevertheless established river commissions, and is actively attempting to preserve the recreational uses of its waters. Indiana water rights and resources are administered by the DNR,identified in Chapter 1, and the Natural Resources Commission. The Commission, created by Ind. Code 5 14-3-3-3, consists of 12 members, including seven ex oficio state government representatives. The remaining five citizen members are appointed by the governor for terms of three years. At least two of the citizen members must possess a working knowledge of environmental and natural resources issues. Because of the tremendous influence of interstate pacts, international treaties, and the supervisory powers of the United States Supreme Court, no detailed description of the restrictions on the use of the waters of Lake Michigan is included. 2.0 SURFACE WATER

Indiana law defines surface water as that "which is found on the surface of the earth."' The surface waters of Indiana are public waters, and the users of natural streams, lakes, or other natural bodies of water are subject to regulation by the legi~lature.~ Surface water is further subdivided into that resulting from storm water runoff and snow melt, referred to as "surface drain," and that which flows in natural ~treams.~ The diversion of water from the Great Lakes basin for use outside the basin is prohibited without prior approval of the governor of each Great Lakes state.4

'Ind. Code 8 13-2-1-4(1). 21nd. Code 8 13-2-1-8. 31nd. Code 8 13-2-1-4(3). 41nd. Code 8 13-2-1-9.

WATER RIGHTS AND RESOURCES 2.1 NATURAL STREAMS

A "watercourse" is water which flows in a definite direction with banks, and forms a channel which exists for a substantial period of time each year."ts

essential characteristics are

substantial existence, unity, regularity, and dependability of flow along a definitive c o ~ r s e . ~ If a watercourse traverses adjacent property, it must' be readily recognizable as such. An intermittent, or ephemeral, stream, such as that resulting from a flood event, is not a true watercourse under Indiana law, but is instead defined as surface drain. In general, the rule is that one may change the natural flow of water to his benefit as long as it does not injure other landowners. The owner of land contiguous t o or encompassing a public watercourse has the right to use of the water, including use for household purposes and drinking water for anirnal~.~The owner of land contiguous to or encompassing a public watercourse also has the "right," subject to approval of the Natural Resources Commission to impound such water behind a dam in the natural stream bed or on [his] land or by pumping or diverting such water from a stream or lake to a reservoir when the flow in the stream or the level of the lake is in excess of existing reasonable uses at the time of such impo~ndments.~ An upper riparian owner cannot use or divert water from a waterway in such a way as to render the waterway unavailable for the use of a lower riparian owner.9 Every person who has a significant water withdrawal facility (capability of withdrawing more than 100,000gallons of water in one day) must register with and give relevant information (enumerated by statute) to the Natural Resources Commission.1o An annual report of the amount of withdrawn water must also be made to the Commission within three months after the end of each calendar year.

Public utilities, persons, firms, or other entities which create additional stream

volumes by releases from their water impoundments have the right to the use of such increased - -

'hd. Code $ 13-2-1-4(4). 6~irdwellv. Moore, 439 N.E.2d 718 (Ind. Ct. App. 1982); Gwinn v. Myers, 234 Ind. 560,129 N.E.2d 225 (1955). 'hd. Code 9 13-2-1-3(1).

81nd. Code $ 13-2-1-3(2). 'City of Elkhart v. Chnstiana Hydraulics. Inc., 223 Ind. 242, 59 N.E.2d 353 (1945).

'%d. Code 5 13-2-6.1-7(a). "Ind. Code $ 13-2-6.1-7(d).

INDIANA ENVIRONMENTAL LAW HANDBOOK flow. Riparian owners have no rights to such increased flow beyond the normal stream flow.12 In more general terms, a utility company may independently create increased stream flow for purposes of generating electricity. Adjacent landowners may not derive electric power or other personal benefit from that increased stream flow. The owner of a dominant tenement may not collect surface water and discharge it into a watercourse to increase the natural flow to injure the sewient tenement.13 In addition, a downstream owner may not invade the rights of those upstream to have a stream maintained in its natural condition by causing the water to swell on the lands of upstream owners.14 Conversely, an upstream riparian owner may not alter the natural conditions so as to change the course of the stream.15 With approval of the Natural Resources Commission, any person, whether or not a riparian owner, may divert the flood waters of any watercourse for any usable purpose provided it does not cause any injury to riparian landowners or the users of the watercourse.16 Where a river is accustomed to overflow by reason of heavy rainfall, a landowner does not have the right to obstruct it by embankments or levees so as to throw it back upon the lands of another and divert it from its natural course. l7 2.2 SURFACE DRAIN Surface drain is treated differently than a natural watercourse. To qualify as surface drain, the water may not follow a defined course or channel, have any well-defined banks, or carry any water except that which drains into it from adjoining lands in wet seasons or as the result of a sudden rise in the level of a stream due to a precipitation event.lg

l21ud. Code

Q 13-2-1-3(3).

13Birdwell v. Moore, 439 N.E.2d 718 (Ind. Ct. App. 1982). 14~uyunnv. Wabash Wazer & Light Co., 181 Ind. 486, 104 N.E. 849. (1914). lSCentral Indiana Coal Co. v. Goodman, 111 Ind. App. 480,39 N.E.2d 484 (1942). 161nd. Code Q 13-2-1-6(1). 17~obinv. Piety, 72 Ind. App. 156, 125 N.E. 655 (1920); Cairo V. & C. Ry. Co. v. Brevoort C.C., 62 F. 129 (1894). "Birdwell v. Moore, 439 N.E.2d 718 @d. Ct. App. 1982); Taylor v. Fickas, 64 Ind. 167 (1878).

WATER RIGHTS AND RESOURCES Surface drain is subject to the "common enemy rule,"19which means that any landowner may combat the water as best he can. An owner may protect himself against surface drain by obstruction or alteration in flow, alteration in the elevation of property, or alteration in ground abs~rption.~~ The only exception is that a landowner may not collect surface drain on his land and discharge it onto his neighbor's land in volume.21 Although the common enemy rule applies to surface drain, once surface water reaches a natural watercourse it may not be obstructed. As stated above, a landowner may not block, obstruct, or alter the flow of a natural watercourse so as to damage his neighbors.22 2.3 NATURAL, SCENIC, AND RECREATIONAL RIVER SYSTEM The DNR may, after a hearing, submit proposals to the Natural Resources Commission with respect to including a section of a river in the Indiana natural, scenic and recreational river system.23 This system classifies rivers according to number of impoundments, level of pollution, shoreline development, and accessibility. Once a river is in the system, the law prohibits any alteration of the original classification of that segment. No use or development of the waters or shores of segments in the system will be approved by the Commission if such use or development may alter the original classifi~tion.~~ DNR must take necessary action to acquire, develop, maintain, and preserve the shoreline of river segments in the system. DNR must also prepare and maintain a plan for the establishment, development, management, use, and administration of the rivers included in the system.25

19~apesv. Burger, 109 N.E.2d 725 (1953).. 20Gwinn v. Myers, 234 Ind. 560,129 N.E.2d 225 (1955); Argyelan v. Haviland, 435 N.E.2d 973 (Ind. App. 1982). 21Gwinn v. Myers, 234 Ind. 560, 129 N.E.2d 225 (1955); Gumz v. Bejes, 163 Ind. App. 55, 321 N.E.2d 851 (1975). " ~ w i n n v. Myers, 234 Ind. 560,129 N.E.2d 225 (1955); G m u y v. Lalen, 526 N.E.2d 1199 (Ind. Ct. App. 1988); Gumz v. Bejes, 234 Ind. 560, 129 N.E.2d 225 (1975); Lowe v. Loge Realiy Co., 138 Ind. App. 434, 214 N.E.2d 400 (1966). 231nd. Code 5 13-2-26-1 et seq. "Ind. Code 5 13-2-26-7. 25~nd.Code Q 13-2-26-8.

INDIANA ENVIRONMENTAL LAW HANDBOOK 2.4 RIVER COMMISSIONS

Once a river is included in the system, the DNR is authorized to establish a commission for that river.26 The membership of a commission includes the director or his designee and two persons who must be owners of land contiguous to the river and located within the particular county. The landowner members are appointed for four year terms by the Board of County In cooperation with DNR, each river commission has the duty to protect and enhance the natural and scenic qualities of the river. No person may affect the natural or scenic qualities of the river unless a permit has been obtained from the commission. Appeals from permit decisions may be had in the circuit or superior court of the county in which the affected land is located.28

3.0 GROUNDWATER The statutory definition of groundwater includes "all water filling the natural openings under the earth's surface including all underground streams, artesian basins, reservoirs, lakes, and other bodies of water below the earth's surface. "29 With various restrictions, groundwater may be used to further enjoyment of the land under which it flows,30such as for irrigation. However, the right "does not extend to causing injury gratuitously or maliciously to nearby lands and their owner^,"^' and the common law prohibits overuse of groundwater resulting in the drying of springs.32 Every person or other entity which has a significant water withdrawal facility (meaning a capability of withdrawing more than 100,000 gallons of water per day) must register with and give relevant information on provided -forms to the Natural Resources Commi~sion.~~ All new

261nd. Code Q 13-2-27-1 et seq.

2 7 ~ oprocedures r regarding river commissions, See Ind. Code Q 13-2-27-4 through -16. 281nd. Code 8 13-2-27-17 through -19. 291nd. Code 8 13-2-2-1.

30~rohoskyv. Prudential Ins. Co. of America, 767 F.2d 387 (1985); Wiggins v. Brazil Coal and Clay Corp., 452 N.E.2d 958 (Ind. 1983). 31Wiggins, 452 N.E. 2d at 964. 32~d.

33~nd.Code $ 13-2-6.1-7(a).

WATER RIGHTS AND RESOURCES

significant water withdrawal facilities must register with the Natural Resources Commission within three months after completion of the facility.34 An annual report of the amount of water withdrawn must be made within three months after the end of each calendar year.3s The reports are used by the Commission to oversee water resource management, and to serve as background documentation for findings submitted by the Commission to the Legislature. Persons who fail to submit annual reports commit a Class B infraction. A separate infraction is committed for each day of continued violation.36 3.1 RESTRICTED USE AREAS

Indiana statute provides that the DNR may designate, by order or rulemaking, certain areas of the state as restricted use areas where the withdrawal of groundwater exceeds or threatens to exceed its natural repleni~hrnent.~~ If the area is to be designated a restricted use area, DNR must give public notice pursuant to statute.38 In a restricted use area, no person or other entity (except public utilities) may withdraw in excess of 100,000 gallons per day in addition to the quantity being used on the effective date of the restriction. Any greater use must first be approved by permit from DNR.39 All users of groundwater in amounts greater than 100,000 gallons per day in a restricted use area must file a certified statement, on departmental forms, of the average daily amount of groundwater used prior to the designation of the area as a restricted zone. The statement must be filed within 90 days after the area is designated as a restricted use area.40 Newly drilled water wells in restricted use areas must be reported, on departmental forms, to DNR within 30 days of the drilling.41

"hd. Code 5 13-2-6.1-7(c).

351nd. Code 5 13-2-6.1-7(d). 13-2-6.1-9; See Ind. Code 5 34-4-32-4 regarding penalties. A Class B infraction is punishable by 3 ~ d Code . fines not to exceed $1,000.00. 371nd. Code 5 13-2-2-3. 38hd. Code 5 13-2-24 3%d. Code 5 13-2-2-5. 4%d. Code 8 13-2-2-6. 41hd. Code $ 13-2-2-7.

INDIANA ENVIRONMENTAL LAW HANDBOOK If any person or entity is found to commit a waste of groundwater in a restricted use

area, DNR may order the owner to return all or a portion of such water to the ground, provided

that the water can be safely and practicably returned.42 The term "waste" includes water which is used for cooling purposes only once, and not put to further beneficial use. Also, DNR may order the owner of a well, where use exceeds 100,000 gallons per day and where water is being wasted, to diminish the daily flow to 1,500 gallons or less.43

3.2 GROUNDWATER EMERGENCIES Indiana law provides for a declaration of a groundwater emergency under certain circumstances. Where one or more significant groundwater withdrawal facilities have caused a lowering of the groundwater level, the director of DNR may declare a groundwater emergency and may restrict the quantity of water that a person may extract from a significant groundwater withdrawal facility.44 An emergency will be declared only after DNR has received a written complaint from the owner of a nonsignificant groundwater withdrawal facility which is unable to furnish its normal supply of water and where other specified conditions have been met."' The statute provides that the director of DNR must declare a groundwater emergency if "the director has reasonable evidence that indicates that continued groundwater withdrawals from a significant groundwater withdrawal facility will exceed the recharge capability of the groundwater resource of the area. "46 While no hearing is required prior to the declaration of a groundwater emergency, a hearing must be held as soon as practicable thereafter to consider the continuation, amendment, or termination of the emergency.47 The director of DNR may restrict the quantity of groundwater that may be extracted from a significant groundwater withdrawal facility under a groundwater emergency if the facility is reasonably believed to have caused the failure of the complainant's water well and the immediate provision of an adequate temporary supply of

421nd. Code # 13-2-2-10. 43~d. *hd. Code 5 13-2-2.5-3. 4SInd. Code Q 13-2-2.5-3(a)(1) through (b). 461nd. Code Q 13-2-2.5-3(c). 47~nd.code 13-2-2.~-3.5@.

WATER RIGHTS AND RESOURCES

potable water is not carried

or "there is a reasonable belief that continued groundwater

withdrawals from the facility will exceed the recharge capability of the groundwater resource of the area."49 If a significant groundwater withdrawal facility withdraws its water by a means other than by pumping, the director may temporarily restrict the quantity of groundwater that 'may be extracted only if the above-mentioned provisions have not been met. Provisions for notification of interested parties before a declaration of a groundwater emergency can be effective are set forth in the statute.'' The statute also provides that the owner of a significant groundwater withdrawal facility may be ordered to provide compensation to the owner of a nonsignificant gr~undwater withdrawal facility if the significant withdrawal facility is the cause of the failure or substantial impairment of the nonsignificant facility.'l

Such compensation may include providing an

immediate and adequate supply of potable water at the prior point of use,52reimbursement of reasonable expenses,53 and providing a manner in which the affected nonsignificant groundwater user may obtain a long-term supply of potable water.54 If the owner of an affected nonsignificant groundwater user refuses timely and reasonable compensation, DNR may terminate an order imposed on the resp~nsiblesignificant groundwater withdrawal fa~ility.~' Any newly-constructed nonsignificant groundwater withdrawal facility which desires to have the protection of this groundwater emergency regulation must construct their facilities to conform to specified rule^.'^

48~nd.Code Q 13-2-2.5-3.5@)(1);See Ind. Code Q 13-2-2.5-10(b)(l);See Ind. Code Q 13-2-2.5-11(a). 491nd. Code Q 13-2-2.5-3.5@)(2).

Q 13-2-2.5-6.

'%d.

Code

''Ind.

Code Q 13-2-2.5-lO(a).

"Ind. Code 5 13-2-2.5-10@)(l). 531nd. Code Q 13-2-2.5-10@)(2).

'1x1.

Code 8 13-2-2.5-10(b)(3).

"Ind. Code 5 13-2-2.5-10(c). %d.

Code 8 13-2-2.5-12.

INDIANA ENVIRONMENTAL LAW HANDBOOK 3.3 POTABLE WATER

The DNR may require owners of flowing water wells to reduce the flow in order to prevent the loss or waste of potable water which is not being put to a beneficial use.57 Any person who wishes to inject, pump, or otherwise introduce potable groundwater into any underground formation which contains nonpotable water must first apply for a permit on forms proscribed by DNR."

DNR may either issue the permit upon receipt of the application or

perform an investigation to determine whether a permit will be granted. DNR will deny a permit if the practice would constitute a waste of potable groundwater, threaten to impair or exhaust the supply in the area, or if available nonpotable waters could be used in lieu of potable

water^.'^ Any person who violates the statutes regarding potable water commits a Class C infraction, and each day a violation continues constitutes a separate offense.60 4.0 NAVIGABLE WATERWAYS

The Boards of Commissioners of the counties of Indiana are authorized by statute to declare any watercourse navigable upon the petition of at least 24 landowners who reside in the vicinity of the watercourse in q~estion.~'It is unlawful to obstruct any stream or watercourse which has been declared navigable. The general laws regarding public highways,62insofar as they are applicable, govern in defining and managing navigable waterways.63 The supervisor of the appropriate road district is in charge of maintaining the watercourse in a navigable condition.64 Piers, docks, wharves or harbors constructed by riparian owners may not extend farther into a navigable waterway than is necessary and may not obstruct the water~ay.~'

571nd. Code Q 13-2-3-1.

%d.

Code Q 13-2-3-2.

59~d. 6%d. Code Q 13-2-3-3;See Ind. Code Q 34-4-32-4 regarding penalties. A Class C infraction is punishable by fines not to exceed $500.00. "Ind. Code Q 13-2-4-1. 621nd. Code Q 8-13-4-3 et seq. 631nd. Code Q 13-2-44 641nd. Code Q 13-243; Ind. Code 5 13-2-4-7. %d. Code Q 13-2-4-5; Bath v. Gum, 459 N.E.2d 72 (Ind. Ct. App. 1984).

WATER RIGHTS AND RESOURCES Indiana law provides that a permit is needed from DNR before a person or other entity (excluding public water utilities) may place a permanent structure in, remove water from, or remove material from a navigable waterway.66 DNR will issue a permit if the change in the waterway will not unreasonably impair the navigability of the waterway, cause significant harm to the environment, or pose an unreasonable hazard to life or property.67 4.1 CONSTRUCTION OF CHANNELS A channel is defined as "an artificial channel or the improved channel of a natural

watercourse connecting to any river or stream in the state for the purpose of providing access by boat or otherwise to public or private industrial, commercial, housing, recreational or other facilities. "68 No person or other entity may construct a channel without the prior written approval of the Natural Resources Commission, which may be issued following the filing of a verified application with the Commi~sion.~~ Before the Commission may consider the application, an applicant must obtain prior approval from IDEM for any sewage disposal facility involved with the channel and the unit(s) which the disposal facility is intended to serve.70 The applicant must also dedicate any additional water areas which will be connected to any navigable rivers or streams to the general public use.71 The Commission may issue a permit if, in its opinion, the channel and the facility or facilities which it is to serve will not constitute an unreasonable hazard to life or property, result in adverse effects on the water levels, fish or wildlife resources, or adversely affect the public health, safety or welfare. "72

661nd. Code

3 13-2-4-9(a), (b).

67~nd.Code § 13-2-4-9(c); subsections (d) and (e) state that a permit is not needed for an activity permitted under certain other statutes. "Ind. Code § 13-2-18.5-1. 691nd. Code 3 13-2-18.5-3. 7%d. Code § 13-2-18.5-5(1).

711nd.Code 5 13-2-18.5-5(2). ?nd. Code 5 13-2-18.5-6.

INDIANA ENVIRONMENTAL LAW HANDBOOK 5.0 LAKES

5.1 PUBLIC FRESHWATER LAKES Indiana law gives special protection to public freshwater lakes. A "public freshwater lake" 'is defined as "a lake that has been used by the public with the acquiescence of a riparian owner; however, it does not include Lake Michigan," and includes only lakes located in second class cities in counties having a population between 400,000 and 650,000.73 The DNR must first issue a permit before a person may change the level of water or the shoreline of a public freshwater lake. The statute specifically prohibits the construction, reconstruction, recleaning, or repair of any ditch or dam which will result in a lowering of the water level of any freshwater lake of ten acres or more.74 A permit must be obtained from DNR before the following activities will be permitted:

construction of channels into a public freshwater lake,"

construction of sewage disposal

fa~ilities,~~ and construction of water bodies for cooling purposes or control of pollutant^.^ 5.2 LOWERING OF LAKE LEVEL BY DITCHES OR DAMS A permit must be obtained from DNR before a person may "locate, make, dig, dredge,

construct, reconstruct, repair, or reclean; or order or recommend the location, establishment, construction, reconstruction, repair, or recleaning of" a ditch or drain which has a bottom depth lower than the normal water level of a lake ten acres or more in size. This statute applies only if the ditch or drain is within one-half mile of the lake.78 A permit request is made by filing a brief statement and description of the plans and specifications for the proposed work with DNR. DNR will investigate, and if it finds the proposed work will not endanger the water level of any lake it will issue a permit to the req~estor?~If, after investigation, DNR refuses to issue a permit, a hearing must be held by the director of DNR or his designee. DNR may 731nd. Code 8 13-2-11.1-1. 7%d. Cod, :2 2-:;.:-2, See Ind. Code 8 13-2-11.1-5regarding permits; See Ind. Code 8 13-2-11.1-6, which mandates a public hearing for certain work done to a public lake. 7SInd. Code 8 13-2-11.1-7. 7%d. Code 8 13-2-11.1-8. n~nd. Code 8 13-2-11.1-10. 781nd. Code 8 13-2-15-l(a). 791nd. Code 5 13-2-15-I@).

WATER RIGHTS AND RESOURCES

designate safeguards deemed necessary for the protection of the lake affected by the proposed work as a requisite for approval.80 A person who fails to secure a permit before proceeding with any work commits a Class B infracti~n.~' A person or other entity which may be adversely affected by DNR's decision may appeal by filing a complaint in the circuit or superior court of the county in which the lake is situateda2 DNR or a person whose land may be damaged by the lowering of the water level may file a complaint for an injunction against any person or other entity violating or threatening to violate these provision^.^^ The statute also provides that it is a Class C infraction for any person to lower the water level of a lake whose area is greater than 20 acres by more than 12 inches below the high-water mark established by the dam or other artificial device creating the lake.84 Indiana statute prohibits any person or other entity from locating, digging, dredging, or in any manner constructing any ditch or drain cutting into, through, or upon the line of any freshwater lake. The same statute also prohibits the dredging or construction of any ditch or drain having a bottom depth lower than the level of the lake as established by law within one-half mile of any point on the line of the lake.85 An exception to this provision exists where a dam has been provided for and "constructed so as to adequately protect the water level of any and all lakes likely to be affected thereby. Such dams shall be constructed prior to any work on any proposed drainage and according to plans and specifications furnished or approved by the engineering division of the Department of Natural Resources. "86 No person or other entity may cut into, around, or in any manner interfere with any dam, bank, or levee constructed for the purpose of maintaining the level of the waters of a lake.87 This same provision makes it illegal to cut into, through, or in any way interfere with the banks

8%d. Code Q 13-2-15-l(c).

811nd. Code Q 13-2-15-l(e); See Ind. Code 5 34-4-32-4 regarding penalties. 821nd. Code 5 13-2-15-2.

831nd. Code 5 13-2-15-4. %d. Code Q 13-2-16-1; See Ind. Code 5 34-4-32-4 regarding penalties. 851nd. Code 5 13-2-17-1. 86~nd.Code 8 13-2-17-1. 871nd. Code 8 13-2-17-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK

or shores of any lake in such a way as to lower or tend to lower the waters of the lake.88 Another provision makes it unlawful for a person or other entity to interfere with or alter any bank, dam, spillway, or outlet of a freshwater lake, or to dig or dredge or in any way lower any outlet to any lake at a point in the outlet which is within 314 mile of such lake.89 A person who recklessly violates these provisions regarding ditches and drains commits a Class A misderiteanor.90

5.3 CHANGES IN LEVELS At least a 20% share of the landowners abutting or within one-quarter mile of the water line (shoreline) of a lake containing ten or more acres may petition the circuit or superior court for permission to stabilize, raise, or establish the level of the lake by means of a controlled dam or other structure.g1 The petition must fulfill requirements mandated by statute.92 After appropriate public notice," a hearing must be held. If within ten days following the hearing

51% of the interested landowners object in writing to the proposed project described in the petition, the petition must be dismissed." If a sufficient number of landowners do not object, the project is submitted to a group of chosen "viewers"95who will inspect the proposed project and make a written report of findings to the court. If the project is approved, a preliminary report is made by a surveyor.96 A report on the cost of the improvement must be madeYg7 and affected landowners may object to the final report made by the surveyor.98 A system of judicial hearings and appeals regarding the

"Ind. Code 8 13-2-17-2. 891nd. Code 8 13-2-17-3. 9%d. Code 8 13-2-17-4; See Ind. Code Q 35-50-3-2 regarding penalties. A Class A misdemeanor is punishable by imprisonment for a fixed term no longer than one (1) year. In addition, fines may be imposed up to $5,000.00. "hd. Code Q 13-2-18-1.

"hd. Code 8 13-2-18-2. 931nd. Code Q 13-2-18-3. %d.

Code Q 13-2-18-6.

95hd. Code § 13-2-18-3 through -7. 961nd. Code 8 13-2-18-7. ?ud.

Code 8 13-2-18-8.

"lid. Code 8 13-2-18-11.

WATER RIGHTS AND RESOURCES

proposal and corresponding surveyor's report is provided by statute,99which also outlines requirements for construction bids and contracts.'"

The Board of County Commissioners of

each county may establish a fund, known as the General Lake Improvement Fund, which will be used to pay for the construction of dams and other works to raise, stabilize, or maintain the lake levels as authorized by these provisions.101 The surveyor in charge of the project will compute the entire cost of the improvement and apportion such costs to the several tracts of land benefitted by the construction.

6.0 WETLANDS The drainage of wetlands for cultivation has been somewhat restricted by federal law, but due to the historic importance of farming in Indiana, the General Assembly has so far resisted attempts to impose controls beyond the dredge and fill restrictions in 5 404 of the federal Clean Water Act. Indiana law still provides for drainage districts which, if anything, promote the drainage of wetlands. 7.0 DAMS, DIKES, LEVEES

The Natural Resources Commission supervises and has jurisdiction over the maintenance and repair of dams, levees, dikes, flood walls, and appurtenant works. The Commission has the duty to see that such structures are maintained in a good state of repair, and is authorized to adopt rules for maintenance and operation as may be necessary.102 The owner of any dam, levee, dike or flood wall must maintain and keep such structures and any appurtenant works in such a state of repair as is required by the "exercise of prudence, due regard for life or property and the application of sound and accepted engineering principles. "Io3 However, all levees, dikes, or flood walls under single private ownership which provide protection only to lands or other property under that same single private ownership are exempt from regulation.lo4 Also exempt are all dams, of certain size and drainage area prescribed by statute, built for "the sole -

99~nd.Code Q 13-2-18-12, -13. '%d.

Code Q 13-2-18-14 through -17.

101~nd.Code Q 13-2-18-18. lo21nd. Code Q 13-2-20-3. lo31nd. Code Q 13-2-20-2.

'OQ1nd. Code § 13-2-20-4.

INDIANA ENVIRONMENTAL LAW HANDBOOK purpose of erosion control, watering livestock, recreation or providing a haven or refuge for fish or wildlife. " lo5 The Indiana DNR must make an engineering inspection of all dams, levees, dikes, and flood walls at least every two years. If DNR finds any structure or appurtenance is not sufficiently strong or is not maintained in good repair, it must issue an order directing the owner to make such repair as may be deemed reasonable and necessary by DNR."~ If DNR determines that the dam, levee, dike, or flood wall is so dangerous to life or property as to not allow sufficient time for the issuance of an order to the owner, it may immediately take measures to provide emergency protection, including the lowering of the water level behind a dam.lo7 An owner who fails to repair a structure as ordered by DNR commits a Class B infraction. log

7.1 LEVEES: MISCELLANEOUS PROVISIONS Any person or entity authorized by law to maintain, protect, or repair any levee has the right to purchase whatever land may be necessary to protect, maintain, or repair that levee. If the person or entity is unable to agree on a purchase price with the owner of land, the real estate may be acquired by condemnation in the manner providing for the condemnation of real estate for railroad purposes.10g The construction, repair, protection, alteration, and control of levees is regulated by statute.l1° 8.0 FLOOD CONTROL The Indiana Flood Control Act1'' grants the Natural Resources Commission the power to prevent floods and to control, regulate, divert or confine flood waters or flood flow. To this end, the Commission may adopt rules and regulations, request data and information from cities

'051nd. Code $ 13-2-20-4.

'%d.

Code 8 13-2-20-4.

Code $ 13-2-20-5. 'O8Ind. Code 8 13-2-20-6; See Ind. Code 8 34-4-32-4regarding penalties. '%d.

logInd. Code 8 13-2-19-1. "%d.

Code 8 13-2-19.5-1et seq.

ll11nd. Code $ 13-2-22-1et seq.

WATER RIGHTS AND RESOURCES

or counties, utilize state agencies, conduct hearings, and exercise the power of eminent domain.112 The Commission has jurisdiction over public and private waters and their adjacent lands whenever necessary for flood control purposes, and the power to make investigations, determine the manner of flood control, adopt flood control plans, and perform any needed flood control work. 113 It is illegal to build or maintain a residence in or on any floodway.l14

Any construction, deposit or excavation in a floodway may only be done pursuant to a permit from the Commi~sion.~~~ No structure, obstruction, or excavation may be erected or maintained in or on any floodway which will adversely affect the efficiency of the floodway or will constitute an unreasonable hazard to the safety of wildlife or property. If the Commission disapproves an application, it must set forth its objections to enable the plans to be amended to meet the Commission's objections.

Final decisions are appealable pursuant to the Administrative

Adjudication Act.ll6 Any county, city or town may exercise concurrent jurisdiction over flood hazard areas within their respective boundaries, provided that any such rules and regulations may not be less restrictive than the minimum rules and regulation8 of the Commi~sion."~ 8.1 FLOOD PLAIN COMMISSIONS

The legislative body of any municipal entity may establish a flood plain commission, which may regulate land uses within flood hazard areas.11s The commission has the duty to prepare flood plain zoning classifications which may require that structures not be placed in the

"21nd. Code Q 13-2-224 through -10. l131nd. Code Q 13-2-22-11. l14see Ind. Code Q 13-2-22-13 for exceptions; regulations regarding standards for flood plains are found at 310 I.A.C. 6-1-1 et seq. l151nd. Code 8 13-2-22-13(d) through 4).

l161nd. Code 8 13-2-22-15, -16 "'Ind.

Code Q 13-2-22.5-1 et seq.

ll*lnd. Code 5 13-2-22.6-2; Ind. Code 13-2-22.6-3 outlines membership of flood plain commissions. Ind. Code 8 13-2-22.6-4 through -10 outlines operating procedure of the commissions.

INDIANA ENVIRONMENTAL LAW HANDBOOK

flood plain unless the structure, its use, and its location conform to the requirements of the flood plain zoning ordinance, and the project receives a permit from the commission.119 8.2 FLOOD CONTROL REVOLVING FUND Indiana law provides for a fund known as the "flood control revolving fund" from which loans may be made to cities, towns, counties, or special tax districts for the purpose of implementing flood control programs authorized by the governing board of the particular m~nicipality.'~~ A flood control program includes the following: the removal of obstructions from channels of streams; the clearing and straightening of channels; the creation of new and enlarged channels; the building or repairing of dikes, levees, or other flood protection devices; the construction of bank protection works for streams; and the establishment of floodways. The statute proscribes the procedure for fund appropriations, authorization of loans, interest, and the period of loan.121 9.0 PRESERVATION SUITS

DNR is authorized to commence and prosecute a cause of action in any state court for the purpose of preserving and maintaining the waters of the state122and to become a party, either plaintiff or defendant, in any action in state court involving the preservation or maintenance of any lake, river, or stream.123 Indiana law provides that DNR is a party in interest in all matters regarding the preservation of lakes, rivers, or streams.

llgI.nd. Code 8 13-2-22.6-1 1 through -14.

12%d. Code 5 13-2-23-1 et seq.

l2l1nd. Code 8 13-2-23-1et seq. 1221nd. Code 8 13-2-12-1. lZ31nd.Code 8 13-2-12-1 through -2.

CHAPTER 5 SOLID WASTE MANAGEMENT 1.0 INTRODUCTION This chapter provides a detailed discussion of Indiana's program to regulate the management of non-hazardous solid waste. Solid waste management in Indiana is generally controlled by Article 7 of Title 13, which deals with environmental management. Under the authority of that article and of Ind. Code fj 13-1-12-8, Indiana promulgated extensive new solid waste management regulations on February 11, 1989. These regulations set forth the process to be followed in permitting, designing and operating solid waste facilities in the state. 2.0 APPLICABILITY OF REGULATIONS 2.1 GENERAL '

Indiana's Solid Waste Management Regulations control four types of solid waste facilities

-- solid waste land disposal facilities, industrial on-site facilities, solid waste processing facilities and incinerators. Each of these types of facility is discussed in greater detail below. By regulation, a "solid waste facility" is defined as "all contiguous land and structures, other appurtenances, and improvements on the land, used for processing, storing in conjunction with processing or disposal, or disposing of solid waste, and may consist of several processing, storage, or disposal operational units. " As discussed below, previously permitted facilities and new facilities are dealt with differently under the regulations. Also as discussed below, the regulations apply to and prohibit open dumps and dumping. 2.2 PRE-FEBRUARY 11,1989 FACILITIES

Facilities which received permits under the old regulations, but which have closed prior to the effective date of the new regulations (February 11, 1989), are regulated under Rule 6.2 This rule provides that these facilities must continue to be monitored and maintained in accordance with requirements set forth in their previous permit^.^ The regulations also provide that the owners or operators of these facilities, or the owners of the real estate upon which these facilities are located, may be required to respond to any nuisance claims or any threats to human '329 I.A.C. 2-2-l(53). 2329 I.A.C. 2-6-1. 3329 I.A.C. 2-6-2(a).

INDIANA ENVIRONMENTAL LAW HANDBOOK health or the en~ironment.~ In addition, IDEM may require the owner or operator of a closed facility, or the owner of the real estate upon which such a facility is located, or any other responsible party, to perform remedial action if IDEM determines that the facility is a threat to the public health or the environment.' However, Indiana law does provide protection for innocent landowners as discussed in Section 10.2.6

2.3 POST-FEBRUARY 10,1989 FACILITIES Previously permitted facilities which remain open after the effective date of the new Solid Waste Management Regulations are regulated under Rule 7.7 Under this rule, any construction permits issued before February 11, 1989, will serve not only as construction permits but as transitional solid waste facility permits. However, at least 90 days before the expiration of the construction permit an application for a solid waste facility permit renewal must be made. Operation of the facility cannot begin until a solid waste facility permit has been issued.' Facilities which have been issued operating permits prior to February 11, 1989, can use those operating permits as solid waste permits until they are due for renewaLg Under those circumstances, previously approved permit conditions will apply. However, as long as they are not in conflict with existing operating permit conditions, the operational standards of the new regulations must be followed. Among those operating requirements are groundwater monitoring standards which must be established either at the time a permit is renewed or two years from the effective date of the regulations, whichever is earlier.1° Renewal applications for previously existing permits must be submitted at least 120 days prior to the expiration of the existing permit. After renewal, all operating standards of the new regulations will apply."

4329 I.A.C. 2-6-2-(b); 329 I.A.C. 2-6-3.

'329 I.A.C. 2-6-4.

%ee Ind. Code 5 13-7-11-6. '329 I.A.C. 2-7-1. '329 I.A.C. 2-7-2. 9329 I.A.C. 2-7-3. "329 I.A.C. 2-7-4. "329 I.A.C. 2-7-5.

SOLID WASTE MANAGEMENT Permitted solid waste land disposal facilities which are in existence on February 11, 1989, but closed prior to September 1, 1989, are not subject to the closure and financial responsibility requirements discussed in Sections 4.3 and 4.4. However, land disposal facilities which continue operation after September 1, 1989, must submit closure and post-closure plans as well as establish post-closure financial responsibility. In addition, prior to September 1, 1992, these facilities must demonstrate financial responsibility for closure.12 2.4 PENDING APPLICATIONS Applications for new or expanded land disposal facilities which were filed in accordance with the old regulations, but which are still pending before IDEM, are subject to special requirements. Those applications which are still pending, but which were received prior to July 1, 1988, must be modified to comply with the financial responsibility and adjacent landowner notification requirements of the new regulations.13 In addition, these applications must comply with the siting and design criteria,14 financial responsibility for closure requirements,15 and closure and post-closure planning requirements16 of the new regulations. All applications still pending but received after July 1, 1988, must comply with all requirements of the new regulations. l7 3.0 REGULATED ACTIVITIES 3.1 SOLID WASTE FACILITIES

3.1.1 SOLID WASTE LAND DISPOSAL FACILITIES Indiana regulations define a solid waste land disposal facility as "a solid waste facility

in or upon the land into which solid waste is disposed."18 Permitted solid waste land disposal

'529 I.A.C. 13329LA.C. 14329I.A.C. '%29 I.A.C. '%29 I.A.C. "329 LAC. "329 I.A.C.

2-7-6. 2-7-S(b)(l)(A) & (B). 2-7-S(b)(l)(C). 2-7-8@)(1)@). 2-7-S(b)(l)(E). 2-7-8(c). 2-2-l(54).

INDIANA ENVIRONMENTAL LAW HANDBOOK

facilities are divided into three categories -- sanitary landfills, construction/demolition sites and restricted waste sites.19 Regulation of solid waste land disposal facilities is discussed in Sections 5.2.4 and 6.1 below.

3.1.2 INDUSTRIAL ON-SITEFACIISI'IES Rule 5 of the Indiana Solid Waste Management Regulations provides for permitting of certain industrial "on-site" disposal facilities. Although it uses the term "on-site" facilities, the rule includes both industrial facilities located on the site where the waste is'generated and off-site facilities which are owned and operated by the generator and maintained for that generator's exclusive use.20 For such facilities to continue operation past September 1, 1989, the ownerloperator had to have applied for a permit by submitting specified information to IDEM.21 Compliance with this permit application requirement constitutes an interim permit and allows the facility to continue in operation until IDEM either accepts or denies the permkn 3.1.3 INCINERATOR FACILITIES

Incinerators are defined by regulation as "an engineered apparatus designed for the burning of solid waste under the effect of controls of temperature, retention time, air, and other combustion factors. "" Incinerator facilities must have a solid waste facility permit24and must comply with the general solid waste facility permit requirements discussed below.2s In addition, because incinerators are by definition solid waste processing facilities, incinerator

19329I.A.C. 2-9-1.

2-5-l(a). 24-10); 329 I.A.C. 2-5-2. 2-5-I@). 2-2-10. =329 I.A.C. 2-17-3. 25329I.A.C. 2-8-2. 20329I.A.C. 21329 I.A.C. 2%29 I.A.C. "329 LA.C.

SOLID WASTE MANAGEMENT

facilities must submit the additional information required of solid waste processing facilities applying for permits.26 Some incinerator facilities must also submit information specifically related to the incinerator operation." Certain incinerator facilities are, however, exempt from some permit requirements. Solid waste incinerators with a design capacity of less than ten tons per day and infectious waste incinerators with a design capacity of less than seven tons per day are deemed to have a permit by rule provided that they comply with the notification and operation requirements of the reg~lations.~'Solid waste incinerators with a design capacity greater than or equal to ten tons per day, but not more than 30 tons per day, and infectious waste incinerators with a design capacity greater than or equal to seven tons per day, but not more than 30 tons per day, are deemed to have a permit by rule if they comply with the notification and operation requirements of the regulations and, in addition, submit a solid waste processing facility application.29 3.1.4 SOLID WASTE PROCESSING FACILITIES A "solid waste processing facility" is defined as a "solid waste facility upon which is

located a solid waste incinerator, transfer station, solid waste baler, solid waste shredder, resource recovery system, composting facility, or garbage grinding fa~ility."~'In order to operate a solid waste processing facility, a general solid waste facility permit is req~ired,~' but the application must contain information in addition to that required by facility applicant^.^^ Solid waste processing facilities are discussed in Sections 5.2.5 and 6.2 below. 3.2 PROHIBITED ACTIVITIES Open dumping and open dumps are prohibited by the Indiana Solid Waste Management ~egulations.~~ Open dumps are defined as "the consolidation of solid waste from one or more

26329I.A.C. 2-17-3. 27329I.A.C. 2-20-1; 329 I.A.C. 2-17-3. 28329I.A.C. 2-20-2(a). 29329I.A.C. 2-20-2(b).

30329 I.A.C. 31329 I.A.C. 32329I.A.C. 33329 I.A.C.

2-2-l(55). 2-17-2(a). 2-17-2(a).

2-4-3.

INDIANA ENVIRONMENTAL LAW HANDBOOK sources or the disposal of solid waste at a single disposal site that does not fulfill the requirements of a sanitary landfill or other land disposal method as prescribed by law or regulations, and that is established and maintained without cover and without regard to the possibilities of contamination of surface or subsurface water resources.

Liability for these

sites remains with the owner of the real estate upon which an open dump is located. By regulation, such owners remain responsible for correcting and controlling any nuisance

condition^^^ and for the elimination of any threat to human health or the environment as a result of the open dump.36 In addition to the above liability, owners of the real estate upon which an open dump is located, or any other responsible party, can be required by IDEM to perform remedial action on the site, including installation and monitoring of groundwater monitoring wells." However, no enforcement action may be commenced against the landowner on whose property solid waste has been illegally dumped, without the owner's consent, unless IDEM has first undertaken a good faith effort to identify the "illegal dumper" and to take appropriate action against that person.38 3.3 EXCLUDED ACTIVITIES

Rule 3 of the Indiana Solid Waste Management Regulations identifies a number of activities which are not subject to the regulation^.^^ Among the activities excluded are those relating to disposal of hazardous waste.40 The regulations do provide, however, that no hazardous waste is to be disposed of at any solid waste facility unless the hazardous waste was generated in quantities of less than one hundred kilograms per month.41

I.A.C. 2-2-l(9); Ind. Code 8 13-7-1-16. 35329 I.A.C. 2-4-4. 36329I.A.C. 2-4-5. 37329I.A.C. 2-4-6. 3 8 ~ . d Code . 8 13-7-11-6; See also Section 10.2. 39329I.A.C. 2-3. 40329 I.A.C. 2-3-2. 41329 I.A.C. 2-3-2(b). '329

SOLID WASTE MANAGEMENT 4.0 SOLID WASTE LAND DISPOSAL FACILITIES 4.1 CLASSIFICATION OF FACILITIES

Solid waste land disposal facilities are divided into three categories -- sanitary landfills, restricted waste sites and constructionldemolition sites.42 A sanitary landfill is defined as "a .solid waste land disposal facility designed to accommodate general types of solid waste, excluding [hazardous waste], and operated by spreading the waste in thin layers, compacting it to the smallest practical volume, and covering it with cover material at the end of each working day. "43 Sanitary landfills may accept general types of solid waste, excluding special waste and waste containing free Restricted waste sites are defined as solid waste land disposal facilities "designed and operated to accommodate specific types of waste as specified in 329 I. A.C. 2-9. '" These sites are divided into four categories, Types I, 11, I11 and IV, by the type of waste they are allowed to accept, with Type I being the least restrictive. The type of waste which each restricted waste site may accept must be specified in the facility permit. In general, waste accepted at restricted waste sites is limited to one waste type or to related waste types which are expected to have similar chemical and physical composition and which have been demonstrated to be within the concentration limits appropriate for each site

Examples of waste which may be disposed

of at restricted waste sites are coal ash, flue gas desulfurization sludge and foundry waste. Constructionldemolition sites are defined as solid waste land disposal facilities "designed and operated to accommodate large volumes of solid waste, having minimal potential for groundwater contamination."47 Such sites may accept general construction debris and may seek specific written approval for disposal of other items if those items are incidental to the constructionldemolition.48

42329I.A.C. 2-9-1. 43329I.A.C. 2-2-l(47). 4329 I.A.C. 2-94 45329I.A.C. 46329I.A.C. 47329I.A.C. 48329I.A.C.

2-2-l(45). 2-9-3. 2-2-l(10). 2-9-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK 4.2 SITING AND DESIGN OF FACILITIES

Solid waste land disposal facilities permitted after February 11, 1989, are required to follow the siting and design standards set .forth in Rule

Under this regulation, sanitary

landfills may not be located in wetlands, critical habitats of endangered species, flood plains, karst topography, areas located over mines, within 600 feet of wells used for drinking water at a dwelling, within 600 feet of a dwelling, within 100 feet of a shore of a lake, reservoir or stream, within 100 feet of the boundary of the facility (set-back requirement), or within 1200 feet of a public water supply well."

Construction/demolition sites and restricted waste sites

are prohibited in the same areas with a setback of 50 feet instead of 100 feet?'

Height

increases for existing sanitary landfills are also specifically limited.s2 Solid waste land disposal facilities must also follow certain design standards. For example, all sanitary landfills must have leachate collection systems and liners meeting specified criteria.j3 However, these design standards need not be met if the proposed site meets the following criteria: 1. existence of a minimum 50-foot barrier of material having an equivalent hydraulic

conductivity no greater than 1x10" cmlsecond between any locally useful aquifer and the solid waste; 2. demonstration that the groundwater standard specified in the regulations will not be exceeded in any locally useful aquifer or surface waters without leachate collection. This demonstration must consider the concentration and total amount of contaminants generated, the specific geologic characteristics of the site and the groundwater flow direction;

3. demonstration that alternative technologies will provide at least equivalent protection to public health and the environment as the technology specified in the regulation^.^

49329 I.A.C. 2-10. "329 I.A.C. 2-10-l(1). j1329I.A.C. 2-10-l(2). 52329 I.A.C. 2-10-2. 53329I.A.C. 2-103(1). 54329 I.A.C. 2-10-3(2).

SOLID WASTE MANAGEMENT Construction/demolition sites and restricted waste sites must also have a barrier between the solid waste and any aquifer in the area. The barrier must meet specified requirements varying with the type of site.5s 4.3 FINANCIAL RESPONSIBILITY FOR FACILITIES Proof of financial responsibility is required of all solid waste land disposal facilities permitted after February 11, 1989.56 Failure to provide such proof constitutes a ground to revoke the facility permit or to order final closure.57 Permittees must choose from one of the methods specified by the regulations in order to prove financial respon~ibility.~~ These methods are a trust fund," a surety bond,60a letter of redi it,^' proof of insurance,62 or satisfaction of a financial test.63 For purposes of establishing financial responsibility, the permittee must provide a detailed written estimate of the cost of closing the facility.64 Until final closure of the facility is certified, the permittee must review the financial closure estimate annually and must submit any changes, including an increase for inflation, to ID EM.^' In addition to proving financial responsibility for closure, permittees must establish financial responsibility for the post-closure care of the facility.& Again, the permittee may choose among the options specified above. The mechanism chosen must guarantee that funds will be available to meet the post-closure requirements of the facility.67 The same financial

'329

I.A.C. 2-10-4.

s6329 I.A.C. 2-12-1. 57329I.A.C, 2-12-8. 58329I.A.C. 2-12-2. "329 I . A . ~ .2-12-2(a)(l). 60329I.A.C. 2-12-2(a)(2). 61329 I.A.C. 2-12-2(a)(3).

62329I.A.C. 2-12-2(a)(4). 63329I.A.C. 2-12-2(a)(5).

64329I.A.C. "329 I.A.C. &329 I.A.C. 67329I.A.C.

2-12-2@). 2-12-2(c). 2-12-3. 2-123(a).

INDIANA ENVIRONMENTAL LAW HANDBOOK responsibility mechanism may be used for evidence of both closure and post-closure responsibility. Applicants for permits to operate solid waste landfills or transfer stations must also establish financial responsibility for the costs of environmentally sound closure and post-closure monitoring and maintenance of the fa~ility.~'Such responsibility may be established by filing one of the following with IDEM: 1) a trust fund agreement; 2) a surety bond with a standby trust fund agreement; 3) a letter of credit with a standby trust fund agreement; 4) an insurance policy with a standby trust fund agreement; or 5) if the person applying for the permit derives less than 50% of his or her gross revenue from waste management, proof that the person meets a financial test established by the solid waste management board.70 For a solid waste landfill, the amount of financial responsibility discussed in the preceding paragraph must be the greater of a) $15,000.00 per acre or portion thereof covered by the landfill; or b) an amount determined by IDEM to be sufficient to minimize the need for further maintenance and provide for foreseeable and necessary maintenance for post-closure.71 In addition, the applicant must provide assurance of proper post-closure maintenance and monitoring for at least 30 years after the landfill has ceased operation^.^^ With regard to transfer stations, applicants must provide assurance which is the greater of a) $4,000.00 for each acre or part of an acre covered by the transfer station; or b) an amount determined by IDEM to be sufficient to close the station and minimize the need for further maintenance and provide for reasonable post-closure maintenan~e.~~ In addition, applicants must provide assurance of proper post-closure maintenance for one year after the facility ceases operation .74

68329I.A.C. 2-12-5. 69~nd.Code 8 13-3-32-4. 7%d. Code 8 13-7-32-5@).

711nd. Code 8 13-732-6(a)(l). %d.

Code 5 13-7-32-6(a)(1). Code § 13-7-32-6@)(1).

741nd. Code 8 13-7-32-6@)(2).

SOLID WASTE MANAGEMENT 4.4 CLOSURE AND POST-CLOSURE REQUIREMENTS FOR FACILITIES

The closure and post-closure requirements specified in the regulations apply to all newly permitted sites as well as to existing solid waste land disposal facilities, except Type IV restricted waste sites.75 Permittees are required to close facilities and to maintain them during the post-closure period in compliance with permit and closure plans. In addition, closure must minimize the need for maintenance and control any potential environmental degradati~n.~~ Written closure plans are requiredn Final closure of facilities must be initiated within 15 days of the receipt of the final volume of

Post-closure requirements must be followed for a minimum of 10 years,

a period which may be extended by IDEM.79 Subsequent to the completion of all post-closure requirements, the ownerloperator of the facility, as well as the owner of the real estate where the facility is located, will be responsible for correcting and controlling any nuisance conditions or threats to human health or the environment which occur at the facility.80 5.0 PERMITTING OF FACILITIES 5.1 APPLICABILITY

With certain limited exceptions, the Indiana.Solid 'Waste Management Regulations require that "any person who disposes of solid waste or operates a solid waste processing facility must have a solid waste facility permit."81 The owner of the facility is responsible for applying for and obtaining a permit. The owner of the land upon which the facility is located, if different than the applicant, must also sign the application form.82

"329 I.A.C. 2-15-1. 76329I.A.C. 2-15-2. n329 I.A.C. 2-15-3.

78329I.A.C. 2-15-6. 79329I.A.C. 2-15-7. 80329I.A.C. 2-15-10. "329 I.A.C. 2-8-l(a).

8%29 I.A.C. 2-8-l@).

INDIANA ENVIRONMENTAL LAW HANDBOOK 5.2 PERMIT APPLICATION REQUIREMENTS

5.2.1 GENERAL Solid waste facility permit applications must be submitted on forms provided by IDEM and must contain the following information: 1. The name and address of the applicant, the property owner and the location of the facility. 2. The legal description of the facility and documents establishing ownership or other tenancy of the real estate upon which the facility is to be located.

3. Facility information, including a description of the type of operation, the planned life of the facility, the expected volume of waste to be received per day and the type of waste to be received. 4. A description of the financial instrument which will be used to achieve compliance with financial responsibility requirements. Except as described in subsection 4.3 for solid waste landfills and transfer stations, the documents need not be executed and delivered until after technical review of the permit.

5. The name and address of all owners or last taxpayers of record of property located within one mile of the proposed boundaries of a solid waste land disposal facility or within one-half mile of the site boundary of a proposed solid waste processing facility.

6. Certification that proper zoning approvals have been obtained. 7. Signatures and certification statements.

8. Detailed plans and design specifications. 9. Closure and post-closure plans. In addition, all corporations must submit Articles of Existence signed by the Secretary of State and the appropriate fee must be included with the appli~ation.~~ 5.2.2 NEED REQUIREMENTS Effective March 20, 1990, all applicants for solid waste facility permits must demonstrate that there is a local or regional need in Indiana for the facilit-y.84To make this demonstration,

83329I.A.C. 2-8-2. 841nd. Code 8 13-7-10-1.5.

SOLID WASTE MANAGEMENT

the applicant must provide a description of the anticipated area to be served by the facility; a description of existing solid waste management facilities which serve the same area; a description of the need that would be fulfilled by constructing the proposed facility; a description of recycling, composting or other activities which the facility would operate within the proposed area of service; and a description of the additional disposal capacity which the facility, if permitted, would provide for the proposed area of ~ervice.~'As provided by statute, if IDEM determines that there is not a local or regional need in Indiana for the facility, the permit application will be denied.86 5.2.3 GOOD CHARACTER REQUIREMENTS

Also effective March 20, 1990, applicants for solid waste facility permits must submit a disclosure document, or equivalent information, to IDEM setting forth:

1. the name, business address and social security number of the applicant or responsible party ;87 2. a description of the applicant's or responsible party's experience in managing the type of waste to be managed under the permit; 3. a description of all civil and administrative complaints against the applicant or

responsible party for the violation of any state or federal environmental law that have resulted in fines or penalties in excess of $10,000.00 in the last 5 years or allege a material violation of the law which presented a substantial endangerment to the public health or the environment; 4. a description of pending criminal complaints alleging the violation of any state or federal environmental law filed against the applicant or responsible party within the last 5 years;

5. a description of all criminal convictions entered against the applicant or responsible party within the last 5 years for violation of any state or federal environmental protection law;

85329I.A.C. 2-8-12. 8%d. Code 8 13-7-10-1.5(c). 87"~esponsible party" is defined as "(1) an officer, a corporation director, or a senior management official of a corporation, partnership or business association that is an applicant; or (2) an individual, a corporation, a partnership, or a business association that owns, directly or indirectly, at least a twenty percent (20%) interest in the applicant." Ind. Code 5 13-7-20.2-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK

6. a description of all criminal convictions of a felony constituting a crime of moral turpitude entered against the applicant or responsible party within the last 5 years; 7. the location of all facilities at which the applicant or responsible party manages the type of waste that would be managed under the permit."

If IDEM finds that the applicant or responsible party has intentionally misrepresented or concealed a statement on the application, or had a civil, administrative or criminal complaint or criminal conviction as described above, or knowingly and repeatedly violated any environmental laws, the permit may be denied.89 In deciding whether to deny the permit IDEM must look at mitigating factors such as the nature and details of the acts involved, whether the matter has been resolved or there is an appeal pending, the degree of culpability, the degree of cooperation with state or federal agencies in investigating any activity, the applicant's or responsible party's dissociation from any other persons or entities convicted of acts referred to above, prior or subsequent self-policing or internal education programs, whether the best interests of the public are served by denying the permit, and any demonstration of good citi~enship.~' These requirements do not apply, however, to the transfer of ownership of a facility from a permittee whose business derives less than 50% of its gross revenue from the management of solid waste to a prospective owner in similar circumstance^.^^ The statute does provide, however, that if there is a prospective change in ownership of a facility for which a permit is required, the prospective owner may submit to IDEM the disclosure document discussed above at least 180 days before the proposed change. If after review of the document IDEM determines that the information provided would require IDEM to deny the prospective owner's permit application were one being applied for, IDEM will disapprove the transfer of ~wnership.~~

"Ind. Code 8 13-7-10.2-3. 89~nd.Code 8 13-7-20.2-4(a). '%d.

Code 8 13-7-10.2-4@).

"Ind. Code 8 13-7-10.2-5(a). "Ind. Code 8 13-7-10.2-5@).

SOLID WASTE MANAGEMENT 5.2.4 SOLID WASTE LAND DISPOSAL FACILITIES

In addition to the above described requirements, applications for solid waste land disposal facility permits must be accompanied by detailed information including maps;93documentation of flood elevation within one-quarter mile of the proposed facility;" plot plans indicating 'surface features, field boundaries and surface contours;95geological cross section drawings;96 and soils maps and drilling logs showing all wells in the area.97 A survey of residences within one-quarter mile of the solid waste facility boundary must be conducted in order to determine whether wells exist which do not have well logs on file with the Indiana Department of Natural ~esources.98 Applications for sanitary landfill permits must also provide information on soils, groundwater and geology, certified by a registered professional engineer or a certified professional geologist.99 This information is to include a minimum of five borings at any proposed landfill site. The borings are to be evenly distributed over the site and must be completed to a minimum depth of 20 feet below the depth of waste placement or to bedrock, whichever is shallower. At least one of the five borings is to be made to a depth of 70 feet below the depth of waste placement or at least 20 feet into bedrock, whichever is shallower.loO Boring logs are to be kept and submitted and specific tests are to be performed on samples taken from each boring.lO' Applications for sanitary landfills and for restricted waste site Types I and I1 are also to be accompanied by a proposal for the installation of monitoring devices both upgradient and downgradient from the landfill.lM The proposal is to be certified by a registered professional

93329I.A.C. 2-11-2(1). "329 I.A.C. 2-11-2(2). 95329I.A.C. 2-1 1-3.

96329I.A.C. 2-11-3(5). w329 I.A.C. 2-11-4. 98329I.A.C. 2-11-4(3). 99329I.A.C. 2-11-5. '"329 I.A.C. 2-11-5(1). "'329 I.A.C. 2-11-5(2). lo2329I.A.C. 2-ll-6(a).

INDIANA ENVIRONMENTAL LAW HANDBOOK engineer or a certified professional geologist and must include information on the water table; identification of aquifers; information on current and proposed uses of groundwater in the area; information on hydraulic connections between groundwater and surface water; and diagrams of proposed monitoring wells and a map showing proposed well 10cations.'~~ In addition, applications for sanitary landfills must be accompanied by a narrative describing the' proposed facility. The narrative is to include such information as anticipated quantity, types and sources of solid waste, equipment to be used for placement of waste, procedures to control fugitive dust and proposed hours of operation.lM

5.2.5 SOLID WASTE PROCESSING FACILITIES In addition to the permit requirements discussed in Section 5.2.1, solid waste processing facility permits must include site specific information. This information is similar to that required for solid waste land disposal facilities as discussed in Section 5.2.2.1°-'

5.3 PERMITTING PROCESS Permit applications are to be submitted to IDEM. IDEM will then make an initial review of the application and accompanying material after which clarification or supplementation of the information may be requested. If IDEM concludes that the application is complete, a technical review of the application is to be initiated in order to determine if the proposed facility will be constructed and operated in accordance with the regulation^.'^^ In addition, a public hearing on the proposed facility may be necessary. '07 Such a hearing must be held upon the request of the applicant or the filing of a petition requesting a public hearing signed by 100 adult individuals residing in the county where the proposed or existing facility is to be located, or who own real property within one mile of the site of the proposed facility. In addition, a hearing

mav be held on motion of IDEM.''

'03329 I.A.C. lM329I.A.C. '05329 I.A.C. '06329 I.A.C. '07329 I.A.C.

2-11-6@). 2-11-7. 2-17-2. 2-8-5.

2-8-5(b)(1). lo8hd. Code Q 13-7-10-2@).

If a hearing is scheduled, or at other times within

SOLID WASTE MANAGEMENT

IDEM's discretion, IDEM must publish a notice requesting public comment on the permit. A comment period of at least 30 days must follow.''@ Thereafter, a permit may be granted if IDEM determines that the permit application meets the requirements of the regulations and that the facility will be constructed and operated in accordance with the regulations. Conditions may be imposed in the permit.l1° Notice of IDEM's action must be served upon the permit applicant, each person who submitted written comments, and anyone requesting such notice."'

Within 15 days of receiving notice of

IDEM's action, the permit applicant or any other person aggrieved by IDEM's action may appeal that action to the Solid Waste Management Board. The appeal will consist of a request that the board hold an adjudicatory hearing."2 Permits, including renewal permits, are issued for a fixed term which is not to exceed five years. Permits may, however, be modified or revoked prior to their expiration either "for cause" or in accordance with conditions in the permit.l13 "Cause" is defined as: 1) violation of any condition in the permit; 2) failure to disclose all relevant facts or any misrepresentation made in obtaining the permit; 3) changes in circumstances relating to the permit; or 4) any other change, situation or activity which is not consistent with the regulations. A permittee may also request that IDEM modify a permit. When a permit is modified, only the conditions subject to modification are reopened and subject to review. If a permit is revoked, however, the entire permit is reopened and therefore subject to revision.ll4 5.4 TRANSFER OF PERMITS

Permits may be transferred by the permittee without the need for a new permit or for modification or revocation of the existing permit. To transfer a permit, the permittee must notify IDEM of the proposed transfer at least 60 days in advance and provide a written agreement containing a specific date of transfer. This 60-day notice requirement is in addition

lo91nd. Code $ 13-7-20-2.5(a). "'329

I.A.C. 2-8-5.

l1'1nd. Code § 13-7-20-2.5(b). ll21nd. Code 8 13-7-10-2.5(c). 'l3329 I.A.C. 2-8-6. 'l4329 I.A.C. 2-8-11.

INDIANA ENVIRONMENTAL LAW HANDBOOK to the 180-day requirement discussed in Section 5.2.3. In addition, the transferee must not have been convicted of intentionally, knowingly, recklessly or negligently violating any environmental laws or regulations nor had a permit revoked. The transferee must also provide proof of financial responsibility and proof that he is or will be the owner of the facility."'

5.5 RENEWAL OF PERMITS Renewal permit applications are to be submitted at least 120 days prior to the expiration date of the original permit. All renewal applications must be submitted on forms provided by

ID EM."^ Within 30 days of receipt of a permit application, IDEM is to notify the applicant as to whether the application is complete. As with initial solid waste facility applications, renewal applications are potentially subject to public hearings. In addition, IDEM is to review the application and determine whether the facility is in compliance with the plans and specifications of its existing permit.ll7 6.0 OPERATING REQUIREMENTS FOR FACILITIES

6.1 SOLID WASTE LAND DISPOSAL FACILITIES Newly constructed solid waste land disposal facilities which hold valid permits may not accept solid waste until they have complied with all applicable pre-operational requirements.'18 For sanitary landfills and restricted waste sites Types I and 11, as well as construc~ion/demolition sites, these pre-operational requirements include establishing a series of identifiable boundary markers to delineate the approved facility boundaries, completion of initial site development and construction as specified in the permit, establishing permanent on-site benchmarks and installing required groundwater monitoring devices. Type I11 restricted waste sites are required only to establish boundary markers. 'Ig Solid waste land disposal facilities must follow specific operating requirements. These facilities are to be accessible by m a s of established roadways only and are to be open only

"'329 I.A.C. 116329I.A.C. 117329 I.A.C. 118329I.A.C. 119329I.A.C.

2-8-8. 2-8-9. 2-8-10. 2-13-1. 2-13-2.

SOLID WASTE MANAGEMENT when operating personnel are on duty.120 In addition, on-site roads are to be constructed and maintained in such a way as to minimize tracking of mud or soil material from the facility.121 All facilities must also provide signs identifying the facility name, operating schedule and the type of facility."

Dust, odors, windblown materials and litter must be contr01led.l~~

Scavenging is prohibited12" and salvaging is to take place only under the supervision of the permitteels

Specific safety requirements for workers must be met126 and plans and

specifications are to be kept on-site.'"

Open burning of solid waste is prohibited at solid

waste land disposal facilities. 12* In addition to these requirements, sanitary landfills are to spread and compact waste at the working face in shallow layers not to exceed two feet.129 Surface water must be diverted from the active fill area and erosion control systems must be provided and maintained.130 Cover is to be provided at all landfill sites with specific cover requirements imposed for each type of solid waste disposal facility.131 Additional cover is to be applied as needed to maintain the required depth132and a grass or ground cover crop is to be established and maintained as soon as p0ssib1e.l~~Explosive gases134and surface l e a ~ h a t e 'are ~ ~ to be controlled, and

120329I.A.C. 2-14-1.

12'329 I.A.C. 2-14-2.

I.A.C. 123329I.A.C. '329 I.A.C. 12'329 I.A.C. 126329I.A.C. ln329 I.A.C. 12'329 I.A.C. 129329I.A.C. 130329 I.A.C. l3'329 I.A.C. '"329 I.A.C. '33329 I.A.C. '"329

2-14-3. 2-14-4.

2-14-5. 2-14-6. 2-14-7. 2-14-8. 2-14-9. 2-14-10. 2-14-11. 2-14-2 through 2-14-16. 2-14-IS@). 2-14-IS@).

13'%29 I.A.C. 2-14-20. 13'329 I.A.C. 2-14-21.

INDIANA ENVIRONMENTAL LAW HANDBOOK leachate collection systems are to be operated and maintained.136 Groundwater monitoring wells must also be provided.137 In addition to operating requirements, final cover of solid waste landfill disposal facilities is required. Final cover for sanitary landfills is to be at least six inches of top soil plus compacted clay to a minimum depth of two feet.13' Restricted waste site facilities must follow additional cover requirements. 139 6.2 SOLID WASTE PROCESSING FACILITIES As with solid waste land disposal facilities, newly constructed solid waste processing facilities which hold valid permits may not accept solid waste until they have complied with all pre-operational requirement^.'^^

These requirements include complete initial facility

development. In addition, incinerators must submit written evidence of approval by the Office of Air Management for the local area.141 After these pre-operational requirements are met, the solid waste processing facility must follow specific operating requirements. These include controls over roads, controls over dust and odor, facility sanitation, and a contingency plan for the possibility that the processing facility will not be able to operate in accordance with its approved operating plan for a 24-hour period. 14* Incinerator facilities must also file a notification as a solid waste incinerator facility.143 7.0 REPORTING REQUlREMENTS Any permittee required by the regulations to monitor any facility must maintain records regarding monitoring information and monitoring activities. These records are to be retained by the permittee for five years. The five-year period is automatically extended during the course

136329I.A.C. 2-14-22. 137329I.A.C. 2-14-24. 13'329 I.A.C. 2-14-19-(1).

139329I.A.C. 2-14-19(2). 140329I.A.C. 2-18-1. 141329I.A.C. 2-18-2. 142329I.A.C.

2-19-1through 329 I.A.C. 2-19-6.

143329I.A.C. 2-20-1.

SOLID WASTE MANAGEMENT of any unresolved litigation between IDEM and the permittee or if such an extension is required by the permit conditions.14 8.0 ENFORCEMENT Enforcement of the Solid Waste Management Regulations is governed by the general statutory provisions applicable to all the environmental laws and regulations. Under these statutory provisions, an investigation may be initiated by IDEM upon receipt of information of any alleged violation of the regulation^.^^' If an investigation discloses a possible violation, IDEM must notify the alleged violator in writing of the suspected violation and offer the alleged violator an opportunity to enter into an agreed order to correct the vi01ation.l~~If no agreement is reached, IDEM is to issue a written notice specifying the provision allegedly being violated. This notice is to be accompanied by an order either requiring that specific action be taken or assessing a civil penalty, or both.14' This order will become effective 20 days after the alleged violator receives notice unless the alleged violator files a wdtten request for a review. If review is requested, IDEM will appoint an administrative law judge to conduct a hearing.14' In addition, a final order of the Solid Waste Management Board is subject to judicial review under Indiana's Administrative Adjudication Act.149 If, as a result of an investigation, IDEM concludes that contamination has reached the point where it constitutes a ."clear and present danger to the health and safety" of persons in the

area, IDEM can request that the governor declare an emergency. The governor may then issue an emergency order requiring that the contamintition cease.lS0 Any person who violates the solid waste regulations is liable for a civil penalty not to exceed $25,000.00 per day. In addition, any person violating an emergency order is liable for an additional civil penalty not to exceed $500.00 per hour of violation. It is a Class C infraction

14329 I.A.C. 2-1-3. 14SInd. Code $ 13-7-11-1. 14'Ind. Code $ 13-7-11-2(b).

1471nd. Code $ 13-7-11-2(c). 14'Ind. Code # 13-7-11-2(a).

14'Ind. Code $ 13-7-11-2(g). lS%d. Code § 13-7-12-1.

INDIANA ENVIRONMENTAL LAW HANDBOOK

to obstruct, delay, resist, prevent or interfere with the department in any inspection or investigation.lS1 Criminal penalties may also be imposed on anyone who intentionally, knowingly, recklessly or negligently violates the solid waste regulations. Such a violation is termed a Class D felony.1s2 In addition, any person who knowingly makes a false statement in any application or tampers with any monitoring device commits a Class B mi~demeanor.'~

9.0 SPECIAL WASTE "Special waste" means any solid waste from a nonresidential source not otherwise excluded by the rules and falling into one of the following categories: 1) a waste containing free liquids; 2) a sludge waste; 3) an industrial process waste; 4) a pollution control waste; or 5) contaminated soil residue or debris from the cleanup of a spill or release of materials described in categories 1-4.lS4Special wastes are subject to particular disposal requirements. First, special wastes may be disposed of at hazardous waste facilities without going' through the certification process provided by the regulations.1s5 Second, special waste may be disposed of at Types I, 11, I11 or IV restricted waste sites if the waste is specifically identified in the site's permit.lS6 Third, all facilities permitted after February 11, 1989, may accept special waste which has been certified by 1DEM.ls7 Facilities already existing on that date may also accept certified special waste unless IDEM has notified the facility that disposal of such waste will present a health or environmental protection problem.lS8 As specified by the regulations, certain generic classes of materials are certified as special waste by rule.lS9 These include certain asbestos containing waste,160 virgin petroleum

lSIInd. Code $ 13-7-13-1.

lS21nd. Code 8 13-7-13-3. A violator may be imprisoned for a fixed term of 1%years, Ind. Code 8 35-50-2-7(a), $25,000.00 per day. If there has been a previous

and subjected to a fine of not less than $2,500.00 nor more fian conviction, the fine may not be more than $50,000.00 per day.

lS31nd. Code 8 13-7-13-3. A violator may be imprisoned for a fixed term of 180 days, Ind. Code 8 35-50-3-3, and fined not more than $10,000.00. '"329 I.A.C. 2-21-1.

lsS329I.A.C. 156329I.A.C. lS7329I.A.C. 15*329I.A.C. lS9329I.A.C.

2-21-3(a). 2-21-3(b). 2-21-3(c). 2-21-3(d). 2-21-4.

'60329 LAC. 2-21-5.

SOLID WASTE MANAGEMENT

product spill material16' and incinerator residue.162 Generators of other types of special waste may petition IDEM for designation of their waste as special waste and for certification that the waste may be disposed of at solid waste land disposal fa~i1ities.l~~ To obtain certification, the generator must file a request with IDEM including the following information: 1. a narrative description of the process and materials used in generating the waste;

2. the waste quantities generated and frequency of generation;

3. identification of the generator, including contact persons; 4. a description of proposed waste handling and transportation methods;

5. a description of the visual description and odor of the waste; 6. a specification of the physical and chemical characteristics of the waste. In addition, the generator must indicate the term of approval sought.la

10.0 OPERATOR AND GENERATOR LIABILITY 10.1 CORRECTIVE ACTION REQUIREMENTS

Corrective action provisions are a part of the groundwater monitoring requirements of the Indiana Solid Waste Management Reg~1ations.l~~ Under the regulations, all sanitary landfills are required to have groundwater monitoring systems which must be sampled on a regular basis. 166 The regulations define two monitoring programs, Phase I and Phase 11. Phase I monitoring is required of all sanitary landfills and all restricted waste sites Types I and I1 and If statistically significant increases includes monitoring for a list of specified ~hemica1s.l~~

l6'329 I.A.C. 2-21-6. 162329I.A.C. 2-21-7.

163329I.A.C. la329 I.A.C. I.A.C. 166329I.A.C. 16'239 I.A.C.

2-21-8. 2-21-8. 2-16-9. 2-16-1; 329 I.A.C. 2-16-2. 2-16-6.

INDIANA ENVIRONMENTAL LAW HANDBOOK over background are detected for two or more of the Phase I parameters, Phase I1 monitoring will be required.16' Phase I1 requires monitoring not only for the Phase I chemicals but for a more complete list. Under Phase I1 monitoring, a statistically significant increase above background levels must be reported to IDEM.16' Whenever the groundwater protection standards set out in the regulations are exceeded, or at the discretion of IDEM if any of the standards under Phase I1 are exceeded, a corrective action program will be required.170 Corrective action will require not only Phase I1 monitoring but additional monitoring as determined by IDEM. Such additional monitoring may include a requirement that the permittee sample public or private water supply ~ e 1 l s . lIn ~ ~addition, the permittee must immediately implement a program to prevent further migration of contaminants, minimize any increase in concentrations, notify all persons who own land or reside on the land directly overlying any part of the plume, replace any currently used sources of groundwater that lie within any part of the plume with water from an alternate source, and take any other steps deemed necessary to ensure protection of public health and the environment.'"

If IDEM

determines that restoration of the groundwater is necessary, the permittee may be required to design and implement a program to remove or treat in place any contaminants which have been found to exceed previous levels. 173 10.2 INNOCENT OWNER

In 1989, Indiana adopted a statutory provision dealing with the rights of landowners on whose land garbage or solid waste is illegally dumped without the landowner's consent. Under this section, no enforcement action .may be taken against such a landowner unless IDEM has made a good faith effort to identify, locate and take enforcement action against the person who did the actual dumping. IDEM may, however, order the landowner to provide the alleged violator access to the land so as to remove and dispose of the waste. In addition to being

168329I.A.C. 2-16-7.

169329I.A.C. 17'329 I.A.C. 17'329 I.A.C. '%29 I.A.C. 173329I.A.C.

2-16-7. 2-16-9. 2-16-9(b). 2-16-9(c). 2-16-9(d).

SOLID WASTE MANAGEMENT exempt from prosecution by IDEM, the landowner in these circumstances may bring an action against the person responsible for the dumping to recover expenses incurred in disposing of the waste and attorney's fees.'74

11.0 CREATION OF SOLID WASTE MANAGEMENT DISTRICTS AND SOLID WASTE MANAGEMENT PLANS In its 1990 session, the Indiana General Assembly adopted House Enrolled Act 1240 which, in part, requires the formation of solid waste management districts and the adoption of solid waste management plans on both statewide and districtwide levels. These solid waste management planning requirements became effective on July 1, 1990. The heart of HEA 1240 is the formation of solid waste management districts. The statute requires that each county either designate itself as a county solid waste management district or join with one or more other counties to form a district. Designations are to be made by ordinance of the county executive and must have been accomplished by July 1, 1991. Counties which fail to meet this requirement are designated solid waste management districts by IDEM. '75

Once formed, each solid waste management district must appoint a board of directors. This board is to consist of one member appointed by the county executive, one member appointed by the county fiscal body, one member appointed by the executive of the largest municipality in the county, one member appointed by the legislative body of the largest municipality in the county, and at least one representative from cities or towns in the county other than the largest m~nicipality.'~~ When the solid waste management district is joint, there is to be one member from each category for each county. In that case, an executive committee of 15 members, with at least one representative from each participating county, is to be selected. In

'741nd. Code Q 13-7-11-6.

17'Ind. Code Q

13-9.5-2-1. 17%d. Code 5 13-9.5-2-5. lnInd. Code 5 13-9.5-2-6.

INDIANA ENVIRONMENTAL LAW HANDBOOK

After the board of directors has been appointed, it in turn appoints a solid waste management advisory committee consisting of citizens knowledgeable about and interested in environmental issues. This committee is also to include representatives of the solid waste management industry operating in the district. The purpose of the advisory committee is to study subjects and problems referred to it by the board and to recommend additional problems in need of study. All members of the advisory committee are to be residents of the solid waste management district. 178 Solid waste management districts have several specified powers. These powers include development and implementation of a districtwide solid waste management plan, imposition of fees on the disposal of solid waste within the district, the power to issue bonds, the power to borrow money from the district planning revolving fund and the power to plan, design, construct, fmance, manage, own, lease, operate and maintain solid waste management facilities. Districts do not, however, have the power of eminent domain or the power to exclusively control the collection or disposal of solid waste within the district.179 The central focus of each solid waste management district is the development of a districtwide solid waste management plan. This plan is to be a detailed, comprehensive, 20-year solid waste management plan and is to be based on a model plan provided by the state. In preparing its plan, each district must assure that its own waste management needs will be met. One of the most immediate considerations is to ensure sufficient waste management capacity for the 20-year planning period. In addition, districts should attempt to meet the state's waste reduction goals of 35% by 1996 and 50% by 2001. In meeting these goals, districts should recognize the state's policy that source reduction, recycling and other solid waste management alternatives are preferred over incineration and landfill disposal of solid waste. 180 District plans are subject to approval by IDEM and must be submitted to the agency by July 1,

1781nd. Code 0 13-9.5-2-10. 1791nd. Code 8 13-9.5-2-11. 18%d. Code 8 13-7-1-1.

SOLID WASTE MANAGEMENT 1992.lS1 During the planning process, at least one public meeting must be held. Once the plan is proposed there must be a public hearing.ls2 District solid waste management plans must include certain specific information. First, plans must include the results of a demographic study of the district predicting the population of the district five, ten and twenty years after the plan is adopted. Second, the plan must include a description of the origin, content, and weight or volume of the solid waste generated in the district at the time the plan is developed, and a projection of what these elements will be five, ten and twenty years after the plan is adopted. Third, the plan must include an inventory and description of the existing solid waste management facilities within the district and the waste management activities already taking place there. Fourth, the plan must have a statement identifying and assessing solid waste problems existing in the district along with an assessment of potential future problems. Fifth, the plan must project the need for solid waste management facilities in the district five, ten and twenty years after the plan -is adopted.ls3 Using the information developed above, the plan must establish a district solid waste management policy. This policy must reflect the needs of the district and provide an integrated approach to solid waste management, including source reduction, alternatives to disposal facilities (including, but not limited to, recycling and composting) and final disposal fa~i1ities.l~~ The district plan must also set forth goals and objectives for managing solid waste in the district; identify alternative means of achieving these goals and objectives; set forth a description of the operational costs of implementing the plan and proposed means of financing; set forth the basis for setting fees for use of any facility; designate a person to supervise the implementation of the plan; and describe surveillance and enforcement procedure^.'^^ Additionally, a plan may, but does not have to, include provisions to restrict or prohibit disposal within the district of solid waste originating outside of the district or outside of Indiana.lS6

lslInd. Code 8 13-9.5-4-1. lS2Ind. Code 6 13-9.5-4-2. lS3Ind. Code 5 13-9.5-4-5.

lg4hd. Code 8 13-9.5-4-7. lS5Ind. Code 8 13-9.5-4-7. lg61nd. Code $ 13-9.5-4-8.

INDIANA ENVIRONMENTAL LAW HANDBOOK

After a solid waste management plan is finalized and approved, a district may impose a fee on the disposal or incineration of solid waste at a final disposal facility located within the district. All such fees are to be deposited in a district solid waste management fund and are to be used only to pay costs associated with implementation of the solid waste management plan.''

In addition to district fees, the statute provides that beginning on January 1, 1991,

a state solid waste management fee will be imposed on the disposal or incineration of solid waste in a final disposal facility in Indiana.lS8 Under this new legislation the state is also required to develop a statewide solid waste management plan. This plan must provide for solid waste management in Indiana for a period of 20 years following adoption of the plan and must include stztewide goals for waste minimization; criteria for alternatives to final disposal, including recycling and composting; general criteria for siting, construction, operation, closing and monitoring of final disposal facilities; and other elements to be considered in the adoption of districtwide solid waste management plans.

lS7hd. Code 8 13-9.5-6.

188hd. Code 8 13-9.5-5.

CHAPTER 6 HAZARDOUS WASTE MANAGEMENT 1.0 INTRODUCTION

Indiana received Phase I interim authorization to operate its RCRA program on August 18, 1982.' Final authority was granted on January 31, 1986.2 Indiana is therefore a fully authorized RCRA state with primary authority to enforce its hazardous waste pr~grarn.~ While EPA retains authority over provisions enacted in the Hazardous and Solid Waste Amendments of 1984 ("HSWA")," Indiana is on a schedule of compliance to obtain program revisions to incorporate HSWA-driven federal program requirements in Cluster 11.' The Indiana program has always closely tracked the federal program with parallel regulations being codified in 329 I.A.C. 3. However, effective February 23, 1992, Indiana revised its approach and adopted a new 329 I.A.C. 3.1 which largely incorporates the various parts of 40 C.F.R. by referen~e.~ This chapter will discuss the newly adopted regulations, explain how the adoption by reference is handled and note differences between the federal and state programs.

New Article 3.1 contains 15 separate rules, covering district subjects. The index to these is as follows:

1. 329 I.A.C. 3.1 Rule 1 -

General Provisions

2. 329 I.A.C. 3.1 Rule 2 -

Requests for Information

3. 329 I.A.C. 3.1 Rule 3 -

Business Confidentiality

4. 329 I.A.C. 3.1 Rule 4 -

Definitions

5. 329 I.A.C. 3.1 Rule 5 -

Rulemaking Petitions; Exemptions; Additional Regulation of Certain Hazardous Waste Activities

'47 Fed. Reg. 35970 (August 18, 1982). *51 Fed. Reg. 3953 (January 31, 1986). For a listing of authorizations for revisions to the program, see 57 Fed. Reg. 7521 (March 2, 1992). 340 C.F.R. 8 272.750(c). 442 U.S.C. 8 6926(c) and (g). '57 Fed. Reg. 7321 (March 2, 1992). See, 40 C.F.R. 5 271.21(e)(2)(iv). %5 Ind. Reg. 910 (March 1, 1992).

INDIANA ENVIRONMENTAL LAW HANDBOOK 6. 329 I.A.C. 3.1 Rule 6 -

Identification and Listing of Hazardous Waste

7. 329 I.A.C. 3.1 Rule 7 -

Standards Applicable to Generators of Hazardous Waste

8. 329 I.A.C. 3.1 Rule 8 -

Standards Applicable to Transporters of Hazardous Waste

9. 329 I.A.C. 3.1 Rule 9 -

Final Permit Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities

10. 329 I.A.C. 3.1 Rule 1.0 -

Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities

11. 329 I.A.C. 3.1 Rule 11 -

Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities

12. 329 I.A.C. 3.1 Rule 12 -

Land Disposal Restrictions

13. 329 I.A.C. 3.1 Rule 13 -

State Administered Permit Program

14. 329 I.A.C. 3.1 Rule 14 -

Financial Requirements for Owners and Operators of Interim Status TSD Facilities

15. 329 I.A.C. 3.1 Rule 15 -

Financial Requirements for Final (State) Permitted Owners and Operators of TSD Facilities

2.0 GENERAL PROVISIONS

The general provisions of '329 I.A.C. 3.1-1 cover right of entry and inspection: enfor~ement,~ penal tie^,^ and notification of hazardous waste activity.''

'329 I.A.C. 3.1-1-3and 3.1-1-4. '329 I.A.C. 3.1-1-5. 9329I.A.C. 3.1-1-6. "329 I.A.C. 3.1-1-10through 12.

In addition, this rule

HAZARDOUS WASTE MANAGEMENT

governs the incorporation by reference of 40 C.F.R. Parts 260 through 270. The version incorporated by reference in the March 1, 1992, rulemaking was that revised through July 1, 1990,11although there is a proposed rule change to incorporate revisions through July 1, 1991. Any changes to 40 C.F.R. Parts 260 through 270 adopted after this date are not effective in Indiana until the "revision" date in 329 I.A.C. 3.1-1-7 is amended."

Finally, Rule 1

establishes the fee schedule for permit applications and annual operating fees.13 3.0 REQUESTS FOR INFORMATION

Rule 2 establishes procedures which IDEM will use in making hazardous waste records available to the public. All hazardous waste records must be made available unless exempt under Ind. Code $8 5-14-3, 13-7-16, 13-7-8.5-2, or 13-7-6-6.14 These are discussed in paragraph 4.0 infra. If a record contains both exempt and nonexempt material, the exempt material is deleted.15 Any request for records must be made in writing, must reasonably describe the records sought,16 and must be submitted to the address set forth in the rules.17 Oral requests may be accepted but do not have to be processed according to the rules.18 If the request does not adequately describe the records sought, IDEM will notify the requestor and attempt to assist in identifying the records sought.19 Once a request is received, IDEM has seven working days to issue an initial, written determination stating which of the requested records will or will not be released and the reasons for any deniaL20 There are limited conditions under which this seven-day limit may be extended2' A failure to issue the initial

"329 I.A.C. 3.1-1-7. 12329I.A.C. 3.1-1-7@). 13329I.A.C. 3.1-1-14.

14329I.A.C. 3.1-2-2(b). "329 I.A.C. 3.1-2-3. 16329I.A.C. 3.1-2-8.

17329I.A.C. 3.1.2-6. "329 I.A.C. 3.1-2-7@). "329 I.A.C. 3.1-2-9. 20329I.A.C. 3.1-2-12(a) and (b).

21329I.A.C. 3.1-2-12(c) through (e).

INDIANA ENVIRONMENTAL LAW HANDBOOK determination in a timely manner constitutes final agency action for purposes of judicial review.22 Access to records may be denied only if a statutory provision or court order requires that the information not be disclosed, the record is exempt under state law,23or an initial denial is required because a third person must be consulted regarding a business confidentiality claim.24 Initial denials may be appealed in writing to the technical secretary of the Solid Waste Management Board under Ind. Code $ 4-215 3 - 7 or directly to a court under Ind. Code 8 5-143-9.25 AS a practical matter, records pertaining to individual facilities subject to the RCRA system are kept in the public file room and no formal request is necessary to obtain access. In general, the formal written procedures are only required when seeking agency-generated records. 4.0 BUSINESS CONFIDENTIALITY

4.1 GENERALLY APPLICABLE PROVISIONS The generally applicable Indiana statutory provisions relating to access to records are contained in Ind. Code 8 5-14-3. Of particular interest is Ind. Code $ 5-14-3-4 which governs records excepted from disclosure. Subsection (a) of that section addresses records which are excepted from disclosure "unless access to the records is specifically required by a state or federal statute or is ordered by a court under rules of discovery." There are nine specific classes of such records, referred to as exempted records. Of these, three are relevant to the rules at 329 I.A.C. 3.1-3. These are records declared confidential by rule adopted by a public records containing trade secret^,^ and confidential financial information obtained, upon request, from a person.28 Subsection (b) of Ind. Code $ 5-14-3-4 addresses records which are excepted from disclosure "at the discretion of a public agency," referred to as permissibly exempt records. There are 17 classes of these records. Those relevant to the rules at 329 I.A.C. 3.1-3 are those

22329 I.A.C. 3.1-2-120. "see, paragraph 4.0, infra.

-

24329 I.A.C. 3.1-2-3. %29 I.A.C. 3.1-2-3(c). 261nd. Code fj 5-1434(a)(2). %~d. Code fj 5-14-3-4(a)(4). 281nd. Code fj 5-14-34(a)(5). However, this exemption does not apply to information that'is filed wit. or received by a public agency pursuant to state statute. Thus, an owner who wishes to satisfy the financial assurance requirements for closure by using the financial test must supply specific financial information which would not be exempt.

HAZARDOUS WASTE MANAGEMENT

reflecting the work product of an attorney representing a public agency, the state or an individual,29and records that are intra-agency deliberative or advisory material which are expressions of opinion or of a speculative nature created for the purpose of decision making.30 4.2 ORIGIN OF BUSINESS CONFIDENTIALITY PROTECTION

The rules governing protection of records for reasons of business confidentiality limit protection to information which is entitled to confidential treatment "for reasons of business confidentiality," defined as "reasons which are limited to the concept of trade secrecy and other legal concepts which are specifically enumerated in [various statutes]. "31 Among the statutes cited are Ind. Code 5 5-14-3-4 and various sections of Ind. Code 5 13-7, all of which refer to trade secrets or refer back to Ind. Code 5 5-14-3-4. Thus, the ability to protect a record from disclosure depends on whether it contains a trade secret, which is defined as:

. . .information, including a formula, pattern,

compilation, program, device,

method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and @) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.32

Fortunately this definition is broad enough to protect records which contain information relating to sales and marketing strategies, identification of customers, management techniques and raw materials, formulations, or processes which are unique. When combined with the exemption for financial records, a company is generally able to protect what it wants from disclosure. However, when submitting information to IDEM, it is important to review that which you wish to remain confidential to ensure that it meets the definition of trade secret and has been adequately protected from disclosure.

291nd. Code 5 5-14-3-4@)(2).

5 5-14-3-4@)(6). 31329I.A.C. 3.1-3-1. 32~nd.Code 5 24-2-3-2. 3%d. Code

INDIANA ENVIRONMENTAL LAW HANDBOOK 4.3

SUBSTANTIVE REQUIREMENTS CONFIDENTIALITY

FOR

DETERMINATION

OF

The definition of trade secret requires that the information in question be the subject to reasonable efforts to maintain its secrecy. The rules33 contain three requirements which a business must meet in order to have information be entitled to confidentiality. First, it must show that it has taken "reasonable" measures to protect the confidentiality of the information and that such measures will continue.34 Second, it must demonstrate that the information is not "reasonably obtainable" without its consent by third parties, other than the government, by use of legitimate means other than judicial or quasi-judicial discovery.3s Finally, it must demonstrate that disclosure is likely to cause substantial harm to its competitive position.36 4.4 PROCEDURAL REQUIREMENTS

Each request for information from IDEM to any regulated entity must contain a notice that the business may make a claim of confidentiality on all or part of any information submitted, and this notice must also state that if no claim is made at the time of submittal, it will be made available to the public without further notice."

Any business submitting information

to IDEM for which it wishes to make a claim of confidentiality must place on or attach to the information "a cover sheet, stamped or typed legend, or other suitable form of notice employing language such as 'trade secret,' 'proprietary,' or 'company ~onfidential."'~~Confidential portions of otherwise nonconfidential documents must be submitted separately. While the rule does not so state, as a practical matter confidential information should be submitted in a separate envelope and the envelope marked with the appropriate legend.

If confidential and

nonconfidential material is commingled, the confidential material could wind up in the public file room39and be available to anyone.

33329I.A.C. %9 I.A.C. 35329I.A.C. 36329I.A.C. "329 I.A.C.

3.1-3-6. 3.1-3-6(2). 3.1-3-6(3). 3.13-60. 3.1-3-3(a).

38329I.A.C. 3.1-3-3(b). 3 9 ~ text , at paragraph 3.0 supra.

HAZARDOUS WASTE MANAGEMENT

When a request for access to records is received by IDEM, a series of events is set in motion. IDEM first determines whether any of the information sought is subject to a claim of If so, the agency next determines if there has been a previous determination ~onfidentiality.~~

made by a court or the Solid Waste Management Board holding that the information is ~onfidential;~' if so, the request is denied. If not, IDEM makes an initial determination of whether the material is colorably entitled to confidential treatment.42 If it is determined that the information is clearly not so entitled, notice is given to the business, and the business may appeal the decision to the board.43 If IDEM determines that the information may be entitled to confidential treatment, notice must be provided to the claimant by certified mail that a formal determination of confidentiality is being made and that the claimant may furnish written comments in support of its claim.44 The comments must address nine separate points, the most important of which are (1) a recitation of measures taken to guard against undesired disclosure to others;45 (2) the extent to which the information has been disclosed to others and the precautions taken in such cases;46and (3) whether the business asserts that disclosure would cause "substantial" harm to its competitive position.47 If harm is alleged, the comments must demonstrate what the harmful effects would be, why the effects would be substantial, and the causal relationship between disclosure and the harmful effect.48 If a request for production of the information is pending at the time the demonstration is requested, the claimant has 15 working days to respond. If no request for disclosure is

40329I.A.C. 3.1-3-4(c)(l). Subsection (c)(2) also provides for circumstances under which a business may have an opportunity to make a claim even though none was made at the time of submission. 41329I.A.C. 3.1-3-4(b).

42329I.A.C. 3.1-3-4(d). 43329I.A.C. 3.1-3-4(d)(2) and 329 I.A.C. 3.1-3-50.

""329 I.A.C. 3.1-3-4(e). 45329 I.A.C. 3.1-3-4(e)(3)Q. 46329I.A.C. 3.1-3-4(e)(3)0. 47329I.A.C. 3.1-3-4(e)(3)(H). 48~d.

INDIANA ENVIRONMENTAL LAW HANDBOOK

pending, IDEM will set a reasonable time for response which must be not less than 15 days.49 Failure to submit the comments in a timely manner operates as a waiver of the claim.50 Following submission of the comments, IDEM will make a final determination as to whether the information is entitled to confidential treatment."

If the determination is that it

is so entitled, any pending request for its release will be denied and the requestor may appeal under 329 I.A.C. 3.1-2.'*

If the determination is that the information is not entitled to

confidential treatment, the business will be so notified and the notice will also inform the business that the information will be released on the thirty-first day after the business' receipt of the notice unless a petition for review

a petition for a stay of effectiveness is filed with

the board pursuant to Ind. Code 4 4-21.5-3-7.53 Finally, all IDEM employees and contractors or subcontractors are required to execute confidentiality agreements acknowledging a duty not to disclose confidential information, the knowing violation of which may subject the violator to a penalty of up to $5,000.00 and one year impri~onment.~" 5.0 DEFINITIONS

Rule 4" incorporates all definitions contained in Ind. Code 4 13-7 and 40 C.F.R. Parts 260 through 270, except for the definitions of "existing tank system" and "new tank systemws6 which are set forth in 329 I.A.C. 3.1-4-11 and 18 respectively. Rule 4 also contains 24 other separate definitions worthy of review.

Of particular importance with regard to business

confidentiality issues is the definition of "voluntarily submitted information. "57

49329I.A.C. 3.1-3-4(e)(2).

"329 I.A.C. 3.1-3-5(b)(4). "329 I.A.C. 3.1-3-5(d)(2). 52329I.A.C. 3.1-3-5(e). 53329I.A.C. '329 I.A.C. "329 I.A.C. I.A.C. 57329I.A.C.

3.1-3-5(f)(2). 3.1-3-7. 3.1-4. 3.1-4-l(b). 3.1-4-26.

HAZARDOUS WASTE MANAGEMENT 6.0

RULEMAKING PETITIONS; EXEMPTIONS; ADDITIONAL REGULATION OF CERTAIN HAZARDOUS WASTE ACTIVITIES

Rule 5" provides for parallel state administration of petitions and exemptions provided in 40 C.F.R. Part 260. Accordingly, the board, at its discretion, may accept determinations by EPA granting a general rulemaking petition or a petition for equivalent testing or analytical method under 40 C.F.R. $8 260.20 or 260.21,59 and may grant a parallel state exclusion in cases in which EPA grants a delisting petiti~n.~' Section 461incorporates by reference the standards, criteria and procedures for granting exemptions from classification as a solid waste, or to be classified as a boiler under 40 C.F.R. $8 260.30 through 260.33, while section 562 incorporates the case-by-case regulation of recycling activities in 40 C.F.R. 88 260.40 and 260.41. Finally, section 663provides that copies of any application for an exemption from land disposal restrictions must be submitted to IDEM, and any exemption granted by EPA must be reviewed by IDEM for consistency with state policies before it is deemed an exemption from the Indiana land disposal restrictions. 7.0 SUBSTANTIVE HAZARDOUS WASTE RULES

Rules 6 through 1264of Article 3.1 establish the substantive requirements which parallel and largely incorporate by reference Parts 261 through 266 and 268 of 40 C.F.R. The following discussion will be limited to exceptions to and alterations of the language in the federal rules of a substantive nature. Changes which are merely cosmetic, such as changing "administrator" to mean "SWMB," will not be addressed.

"329 I.A.C. 3.1-5. 59329I.A.C. 3.1-5-2. The board must determine that the petition is consistent with the state's solid waste policies. 60329I.A.C. 3.1-5-3. As under 40 C.F.R. 3 3.1-6. 61329I.A.C. 3.1-5-4.

260.22, the waste may still be a characteristicwaste under 329 I.A.C.

62329I.A.C. 3.1-5-5. 63329I.A.C. 3.1-6. 64329I.A.C. 3.1-6 through 329 I.A.C. 3.1-12.

INDIANA ENVIRONMENTAL LAW HANDBOOK 7.1

IDENTIFICATION AND LISTING OF HAZARDOUS WASTE Rule 665incorporates 40 C.F.R. Part 261 by reference. The only substantive exception

is that, notwithstanding 40 C.F.R. $ 261.6(~)(2),owners or operators of facilities that recycle recyclable materials without storing them before recycling are subject to 40 C.F.R. $$ 265.10 through 265.77.66

7.2 STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE Rule 767incorporates 40 C.F.R. Part 262 by reference with certain notable exceptions, Subpart B of Part 262 is deleted, and manifests are dealt with in sections 3 through 13 of the rule.68 There are also separate rules covering biennial rep~rting,~'additional reporting," and annual reports for exports,71which are slightly different than the federal counterparts.

7.2.1 MANIFESTS The board has adopted EPA Form 8700-22 and Form 8700-22A as the manifest and continuation sheet."

These forms must be used if Indiana is the consignment state or if a

foreign consignment state has no manifest form or a manifest form which is incompatible with the Indiana form.73 If the waste is destined for a foreign consignment state which has a form compatible with Indiana's, either may be used."

In Indiana there is

exemption from the

manifest requirements for generators of between 100 and 1000 kglmonth. A copy of the manifest must be submitted to IDEM within five working days after the transportation of hazardous waste to a TSDF, whether within Indiana or out of state.75 The use of the hazardous

65329I.A.C. 3.1-6. 66329I.A.C. 3.1-6-2(4). 67329I.A.C. 3.1-7.

68329I.A.C. 3.1-7-2(1). 69329I.A.C. 3.1-7-14. 70329 I.A.C. 3.1-7-15. 711d.

72329I.A.C. 3.1-7-3(a). 73329I.A.C. 3.1-7-4(b). 74~d. '329 I.A.C. 3.1-7-6(a)(4).

HAZARDOUS WASTE MANAGEMENT

waste manifest forms for waste excluded from regulation is prohibited?6 Sections 7 through 13 of the rulen provide line-by-line instructions for filling out the manifest by generators, transporters and TSDF owners/operators, together with the text of the manifest forms. 7.2.2 REPORTING REQUIREMENTS

The biennial report provisions78merely abbreviate 40 C.F.R. 5 262.41 by referring to the instructions on "forms provided by the Commissioner" in lieu of listing them. The provisions for additional reporting7' and annual reports for exporterss0closely track 40 C.F.R.

55 262.43 and 262.56. 7.3 STANDARDS APPLICABLE TO TRANSPORTERS

Rule 881incorporates by reference 40 C.F.R. Part 263, with very minor changes. The reference to exemptions for shipments from small quantity generators82is deleted because Indiana has no exceptions to its RCRA rules for wastes generated in amounts between 100 and 1000 kg in a calendar month. New section 383also imposes state notice requirements of a spill which are in addition to those in 40 C.F.R. 7.4

5 263.30.

FINAL PERMIT STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES (TSDFs) Rule 984incorporates by reference 40 C.F.R. Part 264 with mostly minor procedural

changes.

However, new section 385 makes revisions and substitutions to 40 C.F.R.

5 264.193(a) dealing with secondary containment requirements for tank systems. In addition, the financial assurance provisions of Subpart H of Part 264 are deleted and replaced with 329

76329 I.A.C. 3.1-7-7(g). n329 I.A.C. 3.1-7-7 through 7-13. 78329 I.A.C. 3.1-7-14. 79329I.A.C. 3.1-7-15. "329 I.A.C. 3.1-7-16. 81329I.A.C. 3.1-8.

8240C.F.R. 5 263.20@). 83329I.A.C. 3.1-8-3. 84329I.A.C. 3.1-9. 85329I.A.C. 3.1-9-3.

INDIANA ENVIRONMENTAL LAW HANDBOOK I.A.C. 3. 1-15.86 Finally, TSDF owners and operators must remember to send one copy of all

manifests received to IDEM within five working days of receipt.87 7.5 INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF TSDFs

Rule lo8' incorporates 40 C.F.R. Part 265 with a number of minor exceptions which change references form RCRA and federal rules to their Indiana equivalent, specify where reports are to be filed, and require manifests to be sent to IDEM.

Financial assurance

requirements are set forth in 329 I.A.C. 3.1-14 in lieu of Subpart H of Part 265,89 and the revisions to the tank requirements adopted for Part 264 under 329 I.A.C. 3. 1-9-390 are incorporated into Rule

Finally, the board has adopted a separate rule defining the

classifications of underground injection wells defined in 40 C.F.R. § 144.6 and referenced in 40 C.F.R. Ij 265.430(b)?2 There are no significant changes in the classifications. 7.6

STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND TYPES OF HAZARDOUS WASTE MANAGEMENT (HWM) FACILITIES Rule llg3incorporates by reference 40 C.F.R. Part 266, with the exception of Subpart

H of Part 266 which applies to hazardous wastes burned in boilers and furnaces. Because these

rules were promulgated on February 21, 1991,94they were not in 40 C.F.R. "revised as of July 1, 1990," but these rules will be incorporated into 329 I.A.C. 3.1-1 1 at a later date. The only change in Rule 11 is a provision which expands the prohibition against the use of used oil contaminated with dioxin or other hazardous waste for dust suppression or road treatment, found at 40 C.F.R. 8 266.23(b). The Indiana rule,95in addition to this prohibition, proscribes any land application of used oilg6except for treatment in accordance with a permit. 86329I.A.C.

3.1-9-2(8).

87329I.A.C. 3.1-9-2(5). "329 I.A.C.

3.1-10.

89329I.A.C. 3.1-10-2(13). 90~ee, text at footnote 85.

-

91329I.A.C. 3.1-10-2(16). 92329I.A.C. 3.1-10-3. 93329I.A.C. 3.1-11. "56 Fed. Reg. 7208. 95329I.A.C. 3.1-11-2. 96~efinedat 329 I.A.C. 3.1-4.

HAZARDOUS WASTE MANAGEMENT 7.7 LAND DISPOSAL RESTRICTIONS

Rule 1297 incorporates by reference Part 268 of 40 C.F.R. with certain notable exceptions. Because primacy for granting exemptions from the LDR is retained by EPA, petitions for case-by-case extensions of effective dates, petitions to allow land disposal of a prohibited waste, approvals of alternate treatment methods, and exemptions from treatment standards must continue to be directed to EPA.98 Accordingly, 40 C.F.R. 88 268.5, 268.6, 268.42@) and 268.44 are not inc~rporated.~~ Nevertheless, copies of such petitions must be sent to IDEM and a separate adoption of any exemption granted must be obtained from the board.loOThe remaining exceptions to the incorporation by reference are minor, conforming changes.lo' 8.0 STATE ADMINISTERED PERMIT PROGRAM

Rule 13'" establishes substantive and procedural requirements for state-issued RCRA permits. The state program largely incorporates by reference 40 C.F.R. Part 270,1°3 but includes additional state procedures for denying, issuing, modifying, revoking and reissuing, and terminating all final state permits other than emergency permits and permits by rule.'? 8.1 GENERAL APPLICATION REQUIREMENTS

The general application requirement^'^' closely track 40 C.F.R. 5 270.10. However, the dates by which compliance with newly applicable regulations is required under 40 C.F.R.

$8 270.10(e)(l) and 270.10(g)(l) have been slightly altered.lM Any claims of confidentiality must be made in accordance with 329 I.A.C. 3.1-2.1°7 All EPA-issued hazardous waste

'"329 I.A.C. 3.1-12. 98329I.A.C. 3.1-12-2(1). 99329 I.A.C. 3.1-12-2-(2). "'329 I.A.C. 3.1-12-2(3) and 329 I.A.C. 3.1-5-6. "'329 I.A.C. 3.1-12-2. lo2329 I.A.C. 3.1-13. lo3329 I.A.C. 3.1-13-1. lW329I.A.C. 3.1-13-2(2). lo5329I.A.C. 3.1-13-3.

- 329 I.A.C. 3.1-13-3(e)(1) and 329 I.A.C. 3.1-3(g)(l)(A). %ee, "'329 I.A.C. 3.1-13-4; see, paragraph 4.0 of this chapter, supra.

INDIANA ENVIRONMENTAL LAW HANDBOOK

management permits will be called in within 180 days after final approval of the Indiana program under 40 C.F.R. Part 271 and reissued as state permits.'08 8.2 MODIEICATION, REVOCATION AND REISSUANCE, AND TERMINATION Requirements applicable to these activitieslWlargely track 40 C.F.R. 8 124.5, and the procedures are subject to Ind. Code

5 13-7-10-5.1'0 When a permit is revoked and reissued,

the entire permit is reopened as if the permit had expired."'

A denial of a request to modify,

revoke and reissue, or terminate a permit must comply with and be subject to the rights of appeal in Ind. Code 8 4-21 .5."2

8.3 PROCEDURES Once a decision on a permit is made, IDEM must prepare either a draft permit to issue a final permit or a draft permit to deny a final permit.l13 Any draft permit must be accompanied by a fact sheet, be publicly noticed and made available for public comment, and be given an opportunity for a public hearing.l14 The fact sheet requirement^^'^ are adopted from 40 C.F.R. 8 124.8. Public notice must allow at least 45 days for public comment, and notice of a public hearing must be published 30 days before the hearing.l16 The methods for giving public noticen7 are identical to those in 40 C.F.R. 5 l24.lO(c).

Requirements

applicable to the content of the public notice1'' are taken directly from 40 C.F.R. 8 124.10(d). With regard to the determination of whether to hold a public hearing, the rules119incorporate all the requirements in 40 C.F.R.

5 124.12.

In addition, Indiana law120requires that a hearing

'329 I.A.C. 3.1-13-5. lW329I.A.C. 3.1-13-7. '"329 I.A.C. 3.1-13-7(c). ll11d.

112329I.A.C. 3.1-13-70. Ind. Code 5 4-21.5 is discussed in Chapter 11.

113329I.A.C. 3.1-13-8(a). 114329I.A.C. 3.1-13-8(c). 115329 I.A.C. 3.1-13-9. 'l6329 I.A.C. 3.1-13-lo@).

"'329 I.A.C. 3.1-13-10(c). "'329 I.A.C. 3.1-13-10(d). 119329I.A.C. 3.1-13-12(a). 12%d. Code 5 13-7-10-2@).

HAZARDOUS WASTE MANAGEMENT be held on the issuance of a new or renewed permit for a hazardous waste disposal facility upon request of the applicant, motion of the Commissioner or the filing of a petition signed by 100 adults who reside in the host county or own real property within one mile of the facility which is the subject of the permit. Following the public hearing and close of the public comment period, IDEM will render its final decision which must include a complete response to comments, including reference to any changes made from the draft permit as a result of Permits may be effective for a fixed term not to exceed five years.'22 If an ~ornrnents.'~~ existing permit expires, its conditions remain in force if the permittee has made timely application for a renewal and a new permit has not been issued through no fault of the permittee. 123

9.0

FINANCIAL ASSURANCE REQUIREMENTS FOR INTERIM STORAGE AND FINAL PERMIT FACILITIES Indiana had previously promulgated financial assurance requirements for closure and post-

closure costs and liability protection for interim status'24 and final permitted facilities.12' These rules have been transferred intact into new 329 I.A.C. 3.1-14 and 3.1-15 respectively. The substantive provisions of the rules are copied faithfully from Subpart H of Part 265 and Subpart H of Part 264 of 40 C.F.R. and provide for the availability of all the mechanisms provided under federal regulations. The mechanisms available for interim status facilities are closure trust fund,'26 surety bond,'"

letter of credit,128closure insurance,'29 financial

test,130 and use of multiple me~hanisrns.'~~ For final permitted facilities, the options are

l2'329 I.A.C.

3.1-13-13.

122329I.A.C. 3.1-13-15. 123329I.A.C. 3.1-13-16(a). 124329I.A.C. 3-22.

12'329 I.A.C. 3-47. '26329 I.A.D. 3.1-14-5 (closure); 329 I.A.C. '"329 I.A.C. 12'329 I.A.C. 129329I.A.C. 130329 I.A.C. 13'329 I.A.C.

3.1-14-15 (post-closure).

3.1-14-6 (closure); 329 I.A.C. 3.1-14-15 (post-closure). 3.1-14-7 (closure); 329 I.A.C. 3.1-14-17 (post-closure). 3.1-14-8 (closure); 329 I.A.C. 3.1-14-18 (post-closure).

3.1-14-9 (closure); 329 I.A.C. 3.1-14-19 (post-closure). 3.1-14-10 (closure); 329 I.A.C. 3.1-14-20 (post-closure).

INDIANA ENVIRONMENTAL LAW HANDBOOK closure trust fund,132 surety bond guaranteeing payment into a closure trust fund,133 surety bond guaranteeing performance of closure,134letter of credit,135closure insurance,136 t h e

financial test and corporate g~ara.ntee,l~~and multiple me~hanisrns.'~~Each of these mechanisms has associated do~umentationl~~ which like the federal system requires these instruments to use the precise language set forth in the regulation. It is important to make sure the Indiana form is used to ensure that your instrument complies with Indiana law.

Finally, the regulations contain requirements for liability

coverage140

specific endorsement language and other requirements.

132329I.A.C. 3.1-154(b) (closure); 329 I.A.C. 3.1-15-6(b) (post-closure). 133329I.A.C. 3.1-154(c) (closure); 329 I.A.C. 3.1-15-6(c) (post-closure). 134329I.A.C. 3.1-154(d) (closure); 329 I.A.C. 3.1-15-6(d) (post-closure). 13'329 I.A.C. 3.1-154(e) (closure); 329 I.A.C. 3.1-15-6(e) (post-closure). 13'329 I.A.C. 3.1-15-4(0 (closure); 329 I.A.C. 3.1-15-6(0 (post-closure). 137329I.A.C. 3.1-154(g) (closure); 329 I.A.C. 3.1-15-6(g) (post-closure). 13'329 I.A.C. 3.1-154(h) (closure); 329 I.A.C. 3.1-15-6@) (post-closure).

- e-g. 329 I.A.C. 3.1-14-7(b) and 3.1-14-29. 139~ee, 140329I.A.C. 3.1-14-24 (interim status); 329 I.A.C. 3.1-15-8 (final permit facility).

which contain

CHAPTER 7 HAZARDOUS SUBSTANCE AND PETROLEUM RESPONSE AUTHORITIES (INDIANA SUPERFUND) 1.0 INTRODUCTION As have most states, Indiana has adopted a so-called "mini-Superfund" statute, the Hazardous Substances Response Trust Fund Act,' to address releases of hazardous substances. In addition, Indiana has recently sought to address problems created by the CERCLA petroleum exclusion through enacting legislation to extend CERCLA-type response authority to petroleum releases from "petroleum facilities" other than underground storage tanks.2 These two statutory schemes will be addressed separately. 2.0 HAZARDOUS SUBSTANCES RESPONSE TRUST FUND 2.1 PURPOSES OF FUND The fund is designed to provide funds to: finance contracts or cooperative agreements between the state and U.S. EPA under CERCLA 5 104;3provide assistance to prevent releases of hazardous substances or control, contain, remove or dispose of any released hazardous substance; finance response actions by the state or by other parties in cases in which the response action has been approved by IDEM; pay expenses related to releases of regulated substances other than petroleum from underground storage tanks; and provide for and support household hazardous waste collection and disposal project^.^ 2.2 SOURCES OF FUNDS The hazardous substances response trust fund is authorized to receive funds from a number of sources. These include monies paid as reimbursement by responsible parties for state-incurred costs of response, fees and penalties paid by owners or operators of underground storage tanks containing hazardous substances, appropriations by the General Assembly, private and public gifts and donations, grants from U.S. EPA under RCRA or CERCLA and accrued

-

-

'Ind. Code 5 13-7-8.7. 21nd. Code 8 13-7-20.1. 342 U.S.C. 5 9604. 41nd. Code 13-7-8.7-2.

INDIANA ENVIRONMENTAL LAW HANDBOOK

intere~t.~ In addition, Indiana imposes a tax on the disposal of hazardous waste in the state,6 with 75% of this tax earmarked for the trust fund? 2.3 ACCESS TO INFORMATION AND PROPERTY

IDEM has been granted authority similar to that granted to U.S. EPA under CERCLA

5 104(e)8to obtain information regarding hazardous substances and to have access to records and real pr~perty.~ This authority applies for the purposes of assessing the need for corrective action under the state RCRA programlo as well as assessing the need for removal or remedial action."

Any person who stores, treats or disposes of hazardous substances must furnish

information relating to such hazardous substances and grant IDEM (or its designated agent) access to any records relating to the hazardous substance.12 However, for purposes of information or records, IDEM may not seek such information from persons who merely generate, transport or otherwise handle hazardous substances "unless necessary to ascertain facts not available at the site or facility where the hazardous substances are 10cated."'~ This limitation does not apply to the authority of IDEM to gain physical access to any establishment where hazardous substances are or have been generated, stored, treated, or disposed for purposes of inspection and taking of samples of substances, soil, water, etc.14 These inspections or sampling events must be commenced and completed with "reasonable promptness" and the owner or operator is permitted to obtain split samples, and has a right to receive copies of the results of all analyses.15

'Ind. Code 8 13-7-8.7-3. %d. Code

3 6-6-6.6.

71nd. Code 8 6-6-6.6-3and Ind. Code

*42U.S.C. 8 9604(e). 'Ind. Code 8 13-7-8.7-7. '%d. Code 8 13-7-8.5. "Ind. Code 8 13-7-8.7-7(a). 121nd. Code 8 13-7-8.7-7(a)(2). 131d. 141nd. Code

5 13-7-8.7-7(b).

151nd. Code 5 13-7-8.7-7(c).

13-7-8.7-3(a)(l).

INDIANA SUPERFUND 2.4 LIABILITY FOR COSTS AND DAMAGES

Indiana's statute merely incorporates CERCLA liability by reference by providing that any person liable under CERCLA

5 107(a)16is equally liable for costs of removal or remedial

action incurred by IDEM, consistent with the national contingency plan, for the costs of any health assessment or health effects study performed by IDEM pursuant to 42 U.S.C.

5 9604(i),

and for natural resource damage, injury or destruction." Until 1991, the only defenses were those found in 42 U.S.C. 5 9607(b).18 However, in that year the statute was amended to provide certain defenses to a person who is a "creditor" or a "fid~ciary."'~A secured creditor or a fiduciary is not liable for costs incurred at a facility unless the creditor or fiduciary exercised "actual and direct managerial control" over the use, generation, treatment, storage or disposal of a hazardous substance at the facility.20 In addition, even if a fiduciary is held liable, such liability is limited to the assets held by the fiduciary in the same estate or trust as the facility which gives rise to the liabilit~.~' 2.5 ORDERS OR ACTIONS TO COMPEL REMOVAL OR REMEDIAL ACTION

The statute permits IDEM to proceed in court to either compel a responsible person to undertake removal or remedial action, or to obtain an order to enter property to carry out its own removal or remedial action if the agency is unable to locate another responsible person who is willing and able to perform the response or who can be compelled to perform the response.22 In addition, if a responsible person can be found and is subject to compulsion, IDEM may issue an administrative order to compel a liable party to undertake removal or remedial action.23 However, these orders don't really have teeth because they are not self-executing and the treble damage provisions, discussed below, do not apply to a failure to obey an administrative order.

0 9607(a). 171nd. Code 5 13-7-8.7-8(c). 1642U.S.C.

181nd. Code $ 13-7-8.7-8(d).

"~efined in Ind. Code 0 13-7-8.7-8(a) and @). 2%d. Code 0 13-8-8.7-8-(e). 211nd. Code 5 13-8-8.7-8(f). 22~nd.Code 5 13-8-8.7-9(a). 23~nd.Code 5 13-8-8.7-9@).

INDIANA ENVIRONMENTAL LAW HANDBOOK To enforce such an order, the normal process of administrative and judicial review24must be followed.

2.6 COST RECOVERY AND PUNITIVE DAMAGES The statute grants IDEM the authority to file a civil suit for cost re~overy.~' In addition, treble damages and civil penalties26may be sought from any liable person who fails, without sufficient cause, to properly provide removal or remedial action pursuant to a court order under Ind. Code $ 13-7-8.7-9."

Such an action must be brought as a separate civil

action, and punitive damages may be assessed up to 300% of the total costs incurred "as a result of that person's failure to properly provide removal or remedial action upon the order of a and any such recovery is subject to an offset by the amount of any civil penalty imposed .2g

2.7 CONSENT AGREEMENTS IDEM is authorized to enter into administrative agreements with potentially responsible parties to perform removal or remedial actions, at the parties' own expense, if it determines that the action called for will be performed properly.30 Such agreements may provide that IDEM will reimburse the parties for certain costs (including interest) or perform a portion of the worl? provided IDEM has determined that there is either a reasonable likelihood of recovering the amount of the reimbursement or other costs to be incurred from non-participants or the agreement is, notwithstanding the lack of likelihood of such recovery, "nonetheless in the public interest."32 Any agreement must be by formal administrative order or a consent decree in an action under Ind. Code $ 13-7-8.7-9.33

2 4 ~ eChapter e 11. 2SJnd. Code 8 13-7-8.7-lO(a). 2 6 ~ n d eInd. r Code 8 13-7-13-1. nInd. Code

fi 13-7-8.7-lo@).

29~d. 3%d. Code 8 13-7-8.7-11.

311nd. Code 8 13-7-8.7-1l(c). 321nd. Code 5 13-7-8.7-11(d). 33~nd.Code 5 13-7-8.7-110.

INDIANA SUPERFUND 2.8 RESTRICTIVE COVENANTS

The statute gives IDEM the authority to impose restrictive covenants on any real property that is the site of an existing or former hazardous waste facility which is or was subject to regulation under RCRA; or on which a hazardous substance has been deposited, stored or disposed of and is or was on the CERCLIS list under 42 U.S.C.

5 9616, if more than an

insignificantly small amount of a hazardous substance remains on or beneath the property after closure or completion of a remedial action.34 If IDEM determines a restrictive covenant is necessary to protect the public health or welfare or the environment from unreasonable risk of future exposure to a hazardous substance, such covenant must be recorded, and must (a) describe, to the extent feasible, the identity, quantity, and location of every hazardous substance deposited, stored, disposed of or placed on the property and the extent to which it remains; and @) incorporate any condition or restriction necessary to assure that the future use of the property will not disturb the final cover, any liners, or any components of the containment system, or disturb any monitoring ~ystem.~'IDEM may exempt any proposed disturbance which is necessary to mitigate a threat to human health or the environment, or necessary to the proposed use of the property and will not increase any potential hazard.36 Restrictive covenants may be modified to reflect changes in conditions or advancements in science or technology if such will not increase the potential hazards to human health or the environment."

3.0 PETROLEUM RELEASES A 1991 statute introduced a mechanism for undertaking removal or remedial action with

regard to releases of petroleum at a "petroleum facility."38

3.1 PETROLEUM FACILITY A petroleum facility is defined as:

(1) A building, structure, installation, piece of equipment, pipe (including a pipe that runs into a sewer or publicly owned treatment facility), well, pit, pond,

"~nd. Code $ 13-7-8.7-12(a). 351nd. Code 8 13-7-8.7-12(c).

36~d. "Ind. Code 8 13-7-8.7-12(d). 38~nd.Code g 13-7-20.1.

INDIANA ENVIRONMENTAL LAW HANDBOOK lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or (2) A site or an area on which petroleum has been deposited, stored, disposed of, placed, or located.39

The term does not include consumer products in consumer use or an underground storage tank.40 3.2 PERSONS LIABLE The act applies to both "owners or operators" and "responsible persons." An "owner or operator" is defined as the person who owns or operates the facility at the time of a release or removal or remedial action.41 If title or control of a facility has been conveyed to a unit of state or local government because of bankruptcy, foreclosure, tax delinquency, abandonment or similar means, the term "owner or operator" includes both the unit of government and the person who owned, operated or otherwise controlled the facility immediately prior to the c~nveyance.~~ However, a unit of federal, state or local government will not be deemed an owner or operator if the acquisition was involuntary because of its function as sovereign.43 This exemption is lost if the governmental unit causes or contributes to the release.44 A "responsible person" is any person "who has caused a release at a petroleum facility."45 Because of subtle differences in the liability scheme, it is important to note that an owner or operator may be liable as a responsible person if it not only owned or operated the facility but also caused or contributed to the release. An owner or operator is responsible for the reasonable costs of any response or remedial action except where it can prove that the release was caused by an act of God or war, negligence on the part of the federal, state or local government, the act or omission of a third party, or a

391nd. Code 8 13-7-20.1-5(a). 4%d. Code Q 13-7-20.1-5@).

5 13-7-20.1-3(a)(1). 42~nd.Code 8 13-7-20.1-3(a)(2). 431nd. Code 5 l3-7-20.1-3@). 411nd. Code

441nd. Code 5 13-7-20.1-3(c). 451nd. Code 5 13-7-20.1-6.

INDIANA SUPERFUND

combination thereof.46 A responsible party is absolutely liable, without any enumerated defenses.47 An owner, operator or responsible person is entitled to all rights of the state to recover from another responsible person all or a part of the costs incurred or paid to the state in an action in the circuit or superior court of the county in which the release

In

an administrative action to recover costs, the administrative law judge must apportion costs "in proportion to each party's responsibility for a release."49 As under CERCLA, no indemnification, hold harmless, or similar agreement is effective to transfer liability from a liable person, but this restriction does not bar any such agreement, nor does it bar an action that a liable person may have by reason of subrogation, or otherwise, against any other person.50 3.3 INFORMATION AND ACCESS

In order to allow IDEM to take removal or remedial action, or assess the need for such action, IDEM or its designated representative may require an owner or operator or responsible person to: furnish information relating to the facility or its associated equipment or contents; test the facility or its equipment or contents; conduct tests of soil, air, surface or groundwater surrounding the facility; permit access to records that relate to the facility; and permit access for response, removal or remedial action.51 In addition, IDEM or its designated representative may enter a site where a facility is located, or where petroleum may be present because of a release from a facility, to inspect and obtain samples of petroleum, test potentially affected media, or perform removal or remedial 3.4 ORDERS FOR REMOVAL OR REMEDIAL ACTION

IDEM may issue unilateral orders to require an owner or operator or a responsible person to undertake removal or remedial action with regard to a petroleum release at a petroleum

%d.

Code § 13-7-20.1-9(a).

47~d.

481nd. Code 8 13-7-20.1-9(b). 491nd. Code 8 13-7-20.1-9(e). '%d.

Code 8 13-7-20.1-10.

%d.

Code 8 13-7-20.1-11(a).

521nd. Code 8 13-7-20.1-11@).

INDIANA ENVIRONMENTAL LAW HANDBOOK

facility.53 Such unilateral orders are subject to pre-enforcement administrative and judicial review and a failure to obey an order under this chapter does not expose the respondent to treble damages. IDEM may enter into an agreed order with the owner, operator or responsible person if it determines that such person will perform properly and pr~mptly.'~If IDEM and the owner or operator or responsible person fail to agree on the appropriate and necessary removal or remedial action, the dispute is to be resolved in an adjudicatory hearing."

Unless IDEM

determines that an emergency exists, it cannot undertake removal or remedial action unless the action is necessary to protect human health and the environment and no person can be found (within 90 days after the suspected or confirmed release is identified) who is an owner, operator or responsible person and is who capable of properly carrying out such a~tion.'~Any such remedial action may include an exposure assessment, the cost of which is a recoverable 3.5 LIABILITY OF LENDERS AND FIDUCIARIES

As under the state "Superfund" statute, a secured or unsecured creditor or a fiduciary is not liable with regard to a release at a petroleum facility unless the creditor or fiduciary has exercised "actual and direct managerial control over the petroleum facility,"58and fiduciary liability is limited to the extent of the assets in the same estate or trust as the petroleum fa~ility.'~ 4.0 ENVIRONMENTAL LIEN

The General Assembly also enacted an environmental lien provision in 199160which is applicable to costs relating to responses under the Hazardous Substance Response Trust Fund Act6' and the Petroleum Release

This is not a so-called "superlien" and is perfected

531nd. Code 8 13-7-20.1(8)(a). 54~d.

"~d. The hearing is held pursuant to Ind. Code 8 4-21.5. (See Chapter 11 at Section 3.0.) 561nd. Code 8 13-7-2O.l(8)(b). 571nd. Code 8 13-7-20.1(8)(d). 581nd. Code 8 13-7-20.1(14)(c).

591nd. Code 8 13-7-2O.l(14)(d). '%d.

Code 8 13-7-8.7-10.7.

%d.

Code $ 13-7-8.7.

6 2 ~ dCode . $ 13-7-20.1.

INDIANA SUPERFUND only upon proper notice and filing.63 Once the lien is satisfied, IDEM is to issue a "certificate of discharge" which must be filed where the lien was filed to effect a relea~e,~" and partial releases are ~ontemplated.~'A lien continues in effect until the earlier of full discharge and satisfaction or the expiration of 10 years from the date of creation of the lien (unless a foreclosure action is pending) .66

63hd. Code 5

13-7-8.7-10.7(b),(c) and (d).

%d.

Code § 13-7-8.7-10.7(e).

%d.

Code $ 13-7-8.7-10.7(g).

661nd. Code $ 13-7-8.7-10.7@).

CHAPTER 8 UNDERGROUND STORAGE TANKS 1.0 INTRODUCTION This chapter covers the regulation of underground storage tanks ("USTs") in Indiana. Although Indiana has a statute governing USTs,' to date no regulations have been adopted. The federal regulations are therefore in effect and should be consulted. Because the scope of this handbook is limited, the federal regulations are not discussed in this chapter.

2.0 INDIANA UNDERGROUND STORAGE TANK STATUTE 2.1 D E m T I O N OF AN UNDERGROUND STORAGE TANK Indiana law defines a UST as one tank or combination of tanks, including underground pipes connected to the tank or combination of tanks: 1) used to contain an accumulation of regulated substances; and 2) the volume of which, including the volume of the underground connected pipes, is 10% or more beneath the surface of the g r ~ u n d .A ~ number of tanks are statutorily exempted from this definiti~n.~ These exemptions are identical to those contained in the federal UST regulation^.^ Thus, interpretations of these exemptions under the federal regulations are equally applicable to the Indiana statute.'

'Ind. Code 8 13-7-20-1 et seq. 21nd. Code 5 13-7-20-11(a). 31nd. Code 8 13-7-20-11(b). 440 C.F.R. 5 280.2. These exemptions include: farm or residential tanks with a capacity of 1,100 gallons or less used for storing motor fuel for non-commercial purposes; tanks for storing heating oil for a consumptive use on the premises; septic tanks; pipeline facilities including gathering lines regulated under the National Gas Pipeline Safety Act of 1968 (49 U.S.C. 5 1671 et seq.), the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. 5 2001 et seq.), or interstate pipeline facilities regulated under comparable state laws; surface impoundments; storm water or wastewater collection systems; flow-through process tanks; liquid traps or associated gathering lines directly related to oil or gas production in gathering operations; storage tanks situated in an underground area such as a basement, cellar, mineworking rift, shaft or tunnel, if the storage tank is situated on or above the surface of the floor. '40 C.F.R. 5 280.12. Under the federal regulations, a farm tank is defined as a tank located on land devoted to the production of crops or raising of animals. In addition to the typical farm, this definition includes fish hatcheries, range land and nurseries. It does not include animal laboratories, timber land, pesticide aviation operations, retail garden stores, golf courses or other areas devoted to recreational or aesthetic activities. A residential tank is one located on land used for dwelling and does not include dormitories or other multiple-occupancy residences. The exemption for heating oil tanks includes those used to store one of seven grades of oil used for heating equipment, boilers and furnaces, but does not incIude diesel fuel or kerosene. This exemption applies to residential, commercial and industrial facilities storing heating oil for consumptive use on the premises.

UNDERGROUND STORAGE TANKS 2.2 UST REGISTRATION

The owner of an underground storage tank that has not been closed must pay an annual registration fee of $90.00 for each underground petroleum storage tank, defined by the statute as an underground storage tank that is used to contain petroleum, or $45.00 for each underground storage tank containing regulated substances other than petroleum. If an owner's underground storage tank consists of a combination of tanks, a separate registration fee must be paid for each tank. The schedule for payment of these fees is established by the Department of State Re~enue.~ All fees paid for underground storage tanks containing regulated substances other than petroleum are deposited in the Hazardous Substances Response Trust ~ u n d ? The registration fees paid for underground petroleum storage tanks are split equally between the Underground Petroleum Storage Tank Trust Fund8 and the Underground Petroleum Storage Tank Excess Liability Fund.g In addition to the fees set forth above, until January 1, 1994, each owner of a UST must pay a fee of $200.00 per tank to fund the excess liability fund.'' Each person who pays a UST registration fee receives a receipt from the Department of State Revenue which must be maintained at the place of business where the underground storage tank is located. This receipt must be produced for inspection at the request of any authorized representative of IDEM or the State Fire Marshal." Thirty days before payment of a fee is due, the Department of State Revenue will attempt to notify each owner of a UST who has submitted notification to IDEM of these registration fee requirements.12 An owner of a UST who fails to pay the required fee when due will be assessed a penalty of no more than $50.00 per UST for each day of delinquency. Any penalties assessed against

an owner of an underground petroleum storage tank shall be evenly divided between the petroleum trust fund and the excess liability fund. Penalties assessed and collected from owners %d. Code 8 13-7-20-32(a). 71nd. Code Q 13-7-20-32(c)(2). The Hazardous Substances Response Trust Fund is established by Ind. Code Q 13-78.7-2. *Established by Ind. Code Q 13-7-20-30. (See paragraph 2.9, infa.) 'Established by Ind. Code Q 13-7-20-31. (See paragraph 2.8, infra.) '%d.

Code 5 13-7-20-41.

"hd. Code § 13-7-2032(d). 121nd. Code 8 13-7-20-32(e).

INDIANA ENVIRONMENTAL LAW HANDBOOK of USTs used to contain regulated substances other than petroleum shall be deposited in the hazardous substances fund. l3 2.3 TECHNICAL REQUIREMENTS

To date, Indiana has promulgated no regulations regarding technical requirements for new or existing UST systems. It is anticipated that Indiana's regulations will be substantially similar to the federal regulations.14 Indiana has, however, provided for certification of persons involved in UST installation, testing, retrofitting and removal.15 Under the UST statute, the State Fire Marshal has adopted rules governing this certification program,16 and no one may install, test, retrofit or remove a UST unless they have been certified.17 2.4 FINANCIAL RESPONSIBILITY REQUIREMENTS

The Indiana Solid Waste Management Board is mandated to adopt rules concerning requirements for maintaining evidence of financial respon~ibility.'~To date, no such rules have been promulgated by the board. 2.4.1 PER OCCURRENCE AND AGGREGATE AMOUNTS

To date, Indiana has promulgated no regulations concerning per occurrence or aggregate amounts of financial responsibility. The statute does, however, require that the minimum per occurrence amount must be at least one million dollars, with an appropriate aggregate amount.19 These minimum amounts are not applicable to underground petroleum storage tanks that are not located at facilities engaged in the production, refining or marketing of petroleum and not used to handle substantial quantities of petroleum.20 It is anticipated that Indiana's regulations, when promulgated, will be substantially similar to the federal regulation^.^^

131nd. Code 3 13-7-20-32(f).

1440 C.F.R. Part 280. lSInd. Code $ 13-7-20-13.1.

16675I.A.C.

8 12-12,

17hd. Code 8 13-7-20-13.3.

5 13-7-20-13(6). 191nd. Code 8 13-7-20-IS(@. 2%d. Code 8 13-7-20-IS@). 2140 C.F.R. $8 280.90 et seq. 18hd. Code

UNDERGROUND STORAGE TANKS 2.4.2 METHODS OF ESTABLISHING FINANCIAL RESPONSIBILITY

An ownerloperator may establish the statutorily required financial responsibility by one or more of the following methods:

insurance, guarantee, surety bond, letter of credit,

qualification of a self-insurer, or any other method satisfactory to IDEM and the EPA.22 Under the similar federal regulations, financial responsibility may also be demonstrated by an indemnity contract, risk retention group coverage, or a fully-funded trust fund.23 2.4.3 SUSPENSION OF ENFORCEMENT

IDEM, either on its own or upon application of any owner/operator, may suspend enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks if IDEM determines that: 1) methods of financial responsibility satisfying the requirements of the statute are not generally available for underground storage tanks in that class or category, and 2) steps are being taken to form a risk retention group for that class or category or to establish a fund to be submitted as evidence of financial re~ponsibility.~~ A suspension of enforcement by IDEM under this provision may not exceed 180 days, although IDEM is authorized to suspend enforcement for additional successive periods of 180 days if it determines that substantial progress has been made in establishing a risk retention group, or that the owners or operators of underground storage tanks in the class or category demonstrate that the formation of a risk retention group is not possible and that the state is unable or unwilling to establish the required fund.2s A determination by IDEM to suspend the enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks is not effective until EPA has made a similar determination with respect to the same class or category of underground storage tanks.26

22hd. Code 8 13-7-20-14.

2340C.F.R. $8 280.95-280.103. '%d. Code 5 13-7-20-16(a). "hd. Code 5 13-7-20-16(b). "hd. Code 3 13-7-20-16(c).

INDIANA ENVIRONMENTAL LAW HANDBOOK 2.5 CORRECTIVE ACTION

Under the Indiana statute, IDEM may enter an order requiring an owner or operator of a UST system to perform corrective action when a release has occurred or it may do the work itself."

A release is defined by the statute as any spilling, leaking, emitting, discharging,

escaping, leaching or disposing from an underground storage tank into groundwater, surface water, subsurface soils or surface soils.28 An owner is any person who owns an underground storage tank that was in use on November 8, 1984, or brought into use after that date, or the last person who owned an underground storage tank in use before November 8, 1984, but no longer in use on November 8, 1984.29 An owner does not include any person who, without participating in the management of an underground storage tank or otherwise not engaged in petroleum production, refining and marketing, holds indicia of ownership primarily to protect the owner's security interest in the tank.30 An operator is defined as any person in control of or having responsibility for the daily operation of an underground storage tank.31 Under the corrective action statute, IDEM may issue an order to require the owner or operator of an underground storage tank to undertake corrective action with respect to the release of a regulated substance. If IDEM determines that the corrective action will be done properly and promptly by the owner or operator of the underground storage tank from which the release occurred, IDEM may enter into an agreed order to implement .the necessary corrective action.32 The statute also authorizes IDEM to undertake corrective action with respect to the release of any regulated substance into the environment from an underground storage tank if that action is necessary to protect human health and the environment and no person can be found within 90 days who is an ownerloperator of an underground storage tank subject to the rules concerning corrective action capable of properly carrying out corrective action, or the owner or operator of the underground storage,tankhas failed or refused to comply with an order of IDEM

271nd. Code

3 13-7-20-19.

281nd. Code $ 13-7-20-9. 291nd. Code 6 13-7-20-4.

3%d. Code 8 13-7-20-24. 311nd. Code

6 13-7-20-3.

321nd. Code 8 13-7-20-19(a).

UNDERGROUND STORAGE TANKS

to take corrective

Further preconditions are that the existing situation requires prompt

action by IDEM to protect human health and the environment, the cost of corrective action at the site of an underground storage tank exceeds the amount of financial responsibility required under the statute and, considering the cause or category of underground storage tank from which the release occurred, expenditures from the special funds are necessary to insure an effective corrective action. An ownerloperator of an underground storage tank is liable to the state for the actual costs of any corrective action taken unless the ownerloperator can prove the release was caused solely by an act of God, an act of war, negligence on the part of the state or the United States Government, an act or omission of a third party, or any combination of these.34 If an ownerloperator of an underground storage tank alleges that a release from the tank was caused solely by an act or omission of a third party, the ownerloperator must still pay to the state the amount of the costs of a corrective action. The owner or operator is then entitled by subrogation to all the rights of the state to recover from the third party the costs of the corrective action.35 In addition to allowing owners and operators to recover monies paid to the state, in 1991 the General Assembly amended the corrective action statute to allow owners and operators who undertake voluntary corrective action to receive contribution from the person who owned or operated the tank at the time the release occurred.36 If a party is successful in receiving contribution, that party is also entitled to receive reasonable attorney's fees and court costs.37 Any funds recovered by the state in connection with any corrective action undertaken with respect to a release of petroleum shall be deposited in the petroleum trust fund. Funds recovered by the state in connection with the corrective action undertaken with respect to a release of a regulated substance shall be deposited in the hazardous substances fund.38 IDEM is authorized to use money in the petroleum trust fund to pay costs incurred for corrective action

33Jnd. Code 5 13-7-20-19@).

%d.

Code 5 13-7-20-21(a).

35Jnd. Code 5 13-7-20-21@). 363;nd. Code § 13-7-20-21@)(2);see also lie Pantry v. Stop-n-Go Foods, Znc., 777 F . Supp. 713 (S.D. Jnd. 1991). 37~d.

381nd. Code 5 13-7-20-21(c).

INDIANA ENVIRONMENTAL LAW HANDBOOK conducted under cooperative agreements entered into between Indiana and the EPA, for costs incurred by the state for corrective actions, for expenses incurred by the state in recovering the costs of corrective action, and for administrative expenses and personnel expenses incurred by the state in carrying out the statute. IDEM may use the money in the Hazardous Substances Fund to pay for expenses incurred by the state for corrective action regarding underground storage tanks used to contain regulated substances other than petroleum, for expenses incurred by the state in recovering the costs of corrective actions concerning underground storage tanks, for administrative expenses and for personnel expenses incurred by the state in carrying out the statute.39 In addition to the corrective action requirements, releases from USTs are also subject to the Indiana Spill Reporting Regulation. This regulation is discussed in detail in Chapter 3. 2.6 RECORD KEEPING AND INSPECTION

An ownerloperator of an underground storage tank must maintain its receipt from IDEM indicating payment of the annual registration fee at the place of business where the underground storage tank is located and must produce the receipt for inspection at the request of any authorized representative of IDEM or the State Fire Marshal.40 In addition to this requirement, an ownerloperator of an underground storage tank, upon request of any officer, employee or designated representative of IDEM, must furnish information relating to the underground storage tank or its associated equipment or contents; must conduct monitoring or testing of the underground storage tank; must conduct monitoring or testing of soils, air, surface water, or groundwater surrounding the underground storage tank if tank testing (using methods that are applicable to but not in excess of federal standards) confirms a release of a regulated substance, or if other evidence gives cause for reasonable suspicion that a release has occurred; must permit

an officer, employee or designated IDEM representative to have access to and to copy all records relating to the underground storage tank at reasonable times; and must permit the officer, employee or designated representative to have access for corrective a~tion.~'This

39~nd.Code 5 13-7-20-20. 4%d. Code 8 13-7-20-32(d). 41~nd.Code

3 13-7-20-28(a).

UNDERGROUND STORAGE TANKS section also authorizes any officer, employee or designated representative of IDEM to enter at reasonable times any establishment or other place where an underground storage tank is located or where a regulated substance may be present due to a release from an underground storage tank in order to inspect and obtain samples of any regulated substances contained in the underground storage tank; to conduct monitoring or testing of the underground storage tank, the surrounding soils, air, surface water or groundwater; and to take corrective action.42 2.7 FINES AND PENALTIES

As discussed above, an owner of an underground storage tank who fails to pay the annual registration fee when due will be assessed a penalty of no more than fifty dollars ($50.00) per underground storage tank for each day that passes after the fee becomes due and before the fee is paid.43 In addition, a person who violates a rule adopted under the statute by knowingly failing to give a required notification or by submitting false information is subject to a civil penalty of not more than $10,000.00 for each underground storage tank for which a required notification is not given or for which false information is s ~ b m i t t e d .A~ person who violates a requirement or standard set forth in the statute or a rule adopted under the statute, other than a violation discussed above, is subject to a civil penalty of not more than $10,000.00 per underground storage tank for each day of violation.45 Finally, a person who fails to comply with an order issued by IDEM under the statute after the order becomes effective is subject to a civil penalty of not more than $25,000.00 per day of continued non-c~mpliance."~ 2.8

UNDERGROUND PETROLEUM STORAGE TANK TRUST FUND AND UNDERGROUND PETROLEUM STORAGE TANK EXCESS LIABILITY FUND The Indiana Underground Storage Tank Act establishes an Underground Petroleum

Storage Tank Trust Fund47 and an Underground Petroleum Storage Tank Excess Liability

8 43~nd.Code 8 %d. Code 8 451nd. Code 8 46~nd.Code 5 471nd. Code 5 421nd. Code

13-7-20-28@). 13-7-20-32(f). 13-7-20-27(a). 13-7-20-27@). 13-7-20-27(c). 13-7-20-30.

INDIANA ENVIRONMENTAL LAW HANDBOOK Fund.48 A Hazardous Substances Response Trust Fund is established under Ind. Code

5 13-7-8.7-2. For a comprehensive discussion of the Hazardous Substances Fund, see Chapter 7. As set forth in the statute, funding for the Underground Petroleum Storage Tank Trust Fund comes from grants made by EPA to the state under cooperative agreements under Section 9003(h)(7) of the Federal Solid Waste Disposal Act;49costs recovered by the state under Ind. Code 8 13-7-20-21 in connection with any corrective action undertaken with respect to a release of petroleum; costs recovered by the state in connection with enforcement of the statute with respect to any release of petroleum; appropriations made by the General Assembly; gifts and donations intended for deposit in the Fund; penalties imposed under Ind. Code 8 13-7-20-26 and Ind. Code $ 13-7-20-27; 60% of the penalties imposed under Ind. Code 8 13-7-20-32 against owners and operators of underground petroleum storage tanks; and from revenue from the underground petroleum storage tank registration fee under Ind. Code $ 13-7-20-32(~)(1).'~ Funds in the Underground Petroleum Storage Tank Trust Fund may be used to pay costs incurred for corrective action conducted under cooperative agreements entered into between the state and EPA, for expenses incurred by the state for corrective actions undertaken under Ind. Code $ 13-7-20-19, for expenses incurred by the state in recovering costs of corrective actions, and for administrative expenses incurred by the state carrying out the statute." The Underground Petroleum Storage Tank Excess Liability Fund was established to assist owners and operators of underground petroleum storage tanks in establishing evidence of financial responsibility, excluding liability to third parties, and to provide a source of money to satisfy liability for corrective action incurred by owners and operators of underground petroleum storage tanks.52 To the extent that money is available in the excess liability fund, IDEM is authorized to use that money for the payment of a part of the liability of owners and operators of underground petroleum storage tanks, excluding liability to third parties, arising out of 481nd. Code 5 13-7-20-31.

4942U.S.C. 8 6991&)(7).

'%d.

Code Q 13-7-20-30.

"Ind. Code fi 13-7-20-20(a). 52~nd.code fi 13-7-20-3i(a).

UNDERGROUND STORAGE TANKS

corrective action involving releases of petr~leum.'~The money from this excess liability fund may be used for this purpose only if all annual registration fees that are due with respect to the tank are timely paid and other specific requirements are met.54

The part of the liability of an ownerloperator of an underground petroleum storage tank which may be paid from the excess liability fund is determined by a two-step formula. If the total amount of liability exceeds $1,000,000.00, the excess liability fund may pay the amount by which the liability exceeds $1,000,000.00, less $100,000.00. In short, to the extent the liability exceeds $1,000,000.00, the ownerloperator must pay the first $100,000.00 of that excess amount, then the Excess Liability Fund will pay the rest. If the total liability does not exceed $1,000,000.00, the Excess Liability Fund will pay for all but the first $100,000.00 of the total amount of the liabilit~.~' Although the statute provides that IDEM may not discriminate against any ownerloperator of an underground petroleum storage tank in the payment of claims under this section, this section does not provide an ownerloperator with any enforceable right to the payment of a claim.56

'3~nd. Code § 13-7-20-33(a). 541nd. Code § 13-7-20-33(d).

"hd. Code 8 13-7-20-33(b). "Ind. Code 8 13-7-20-33(g).

CHAPTER 9 EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW 1.0 INTRODUCTION

This chapter discusses the reporting requirements established by the Emergency Planning and Community Right-to-Know Act of 1986, commonly known as Title I11 of the Superfund Amendments and Reauthorization Act ("SARA"),' as that program is administered in Indiana. This chapter will discuss the following aspects of this program: 1. 2. 3. 4.

Emergency planning; Emergency notification; Community Right-to-Know reporting; and Toxic Chemical Release Reporting.

The purpose of Title I11 is to protect public health and the environment, to educate and prepare the public and local governments for potential chemical hazards that are present in the community, and to encourage and support emergency planning efforts at both the state and local levels. Indiana has not codified its own emergency planning program, but has instead implemented the federal statutory and regulatory program as described below. 2.0

ESTABLISHMENT OF STATE COMMISSIONS, PLANNING DISTRICTS, AND LOCAL COMMITTEES

2.1

INDIANA EMERGENCY RESPONSE COMMISSION

Under Section 301 of Title III,42 U.S.C.

5 11001, the governor of each state is required

to establish an emergency response commission. In April of 1987, the Indiana Emergency Response Commission ("IERC") was established by Executive Order 4-87. The IERC is comprised of 13 members. Three members represent industry, three represent local government, and three represent the public at large.

The remaining four members consist of the

Commissioner of the IERC and representatives from the State Fire Marshal's Office, the Indiana State Police and IDEM. The duties of the IERC are as follows:

1.

Designate local emergency planning districts within Indiana;

'42 U.S.C. $ 11001 et seq.

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW

Appoint a local emergency planning committee ("LEPC") to serve each district; Coordinate and supervise the activities of the local committees; Coordinate proposals for and distribution of training grant funds; Annually review local emergency response plans and make any necessary changes; Notify the Environmental Protection Agency of Indiana facilities subject to the requirements of Title 111; Establish procedures for reviewing and processing public requests for information; At the request of the state or other party, obtain further information from facilities about a particular chemical or facility; and Request information from EPA on the health effects of chemicals that EPA has deemed to be "trade secret," and insure that this information is available to the p ~ b l i c . ~ Reports and notifications required under Title I11 are submitted to the IERC. These include Material Safety Data Sheets ("MSDSs") or lists of MSDS chemical^,^ emergency and hazardous chemical inventory forms,4 and notice of releases.' The IERC's primary purpose is to coordinate Title 111 information, and assist in informing the public of chemical risks. The IERC also works closely with the LEPCs to help with their needs and carry out their programs. Finally, the IERC utilizes its expertise and knowledge to assist facilities in meeting their responsibilities under Title 111.

242U.S.C. 342U.S.C. 442 U.S.C. '42 U.S.C.

5 5 3 0

11001(a)-(d); 42 U.S.C. 5 11002(d); and 42 U.S.C. 5 11003(e). 11021(a)(l). 11022(a)(l). 11004(b)(l).

INDIANA ENVIRONMENTAL LAW HANDBOOK 2.2 PLANNING DISTRICTS

The IERC has designated each of Indiana's 92 counties as emergency planning districts. These planning districts are designed to facilitate preparation and implementation of emergency plans. '

2.3 LOCAL EMERGENCY PLANNING COMMITTEES

Members of the local emergency planning committees ("LEPCs") in each of Indiana's

92 counties are appointed by IERC.

Membership of the LEPCs includes the following

categories of persons: 1.

Elected state and local officials;

2.

Law enforcement;

3.

Civil defense, fire fighting, first aid, health, local environmental and transportation agencies, and hospitals;

4.

Broadcast and print media;

5.

Community interest groups; and

6.

Representatives of facilities subject to Title I11 requirement^.^

The primary function of LEPCs is to develop an emergency plan to prepare for and respond to chemical emergen~ies.~The planning effort focuses primarily on EPA's list of extremely hazardous substances ("EHS"). Each year, the emergency plan must be reviewed and updated. LEPC members are required to be familiar with factors that affect public safety, the environment, and the economy of the community, as such expertise is crucial in developing an emergency plan. LEPCs also receive emergency and hazardous chemical inventory information submitted by local facilitie~.~This information then becomes available to the public upon req~est.~

642 U.S.C. 8 11001(c). '42 U.S.C. 8 1lOO3(a) et seq.

'42 U.S.C. 3 11022(a)(l). '42 U.S.C. 3 11022(e)(3).

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW LEPCs have the power to request additional information from facilities, either for their own purposes or on behalf of others.''

3.0 EMERGENCY PLANNING NOTIFICATION The ownerloperator of any facility subject to the requirements of Title I11 must notify the IERC that it is subject to those requirements. Any facility which later becomes subject to these requirements must notify the IERC and LEPC within 60 days after the date of becoming subject to Title 111. The IERC in turn notifies EPA of facilities having substances on the EHS list.''

4.0 EMERGENCY RESPONSE PLANS As discussed previously, Title I11 requires LEPCs to develop an emergency plan. An emergency plan must include the following: 1.

Identification of facilities subject to emergency planning requirements, routes used in transporting hazardous substances, and additional facilities which might contribute to an emergency, i.e., a natural gas facility;

2.

Methods and procedures to be followed by facility ownerloperators and emergency and medical personnel in the case of a chemical accident;

3.

Establishment of ways to notify the public, coordinators and responders about actions to be taken in the case of an emergency;

4.

Methods in determining how a release occurred in an area and the population that is affected by such release;

5.

A list of equipment or facilities that may be used in the cise of a release, and a list of the people who are responsible for the equipment or facilities; and

6.

Schedules and plans for testing of the emergency plan.

Once the LEPC has developed q.n emergency plan, the IERC must then review it. The plan is subject to public comment, either through public meetings or newspaper announcements. The plan must then be periodically tested by conducting emergency drills.12

"42 U.S.C. 5 11022(e)(l). "42 U.S.C. # 11002(c)-(d). 1242 U.S.C. 5 11003@)-(e).

INDIANA ENVIRONMENTAL LAW HANDBOOK 5.0 SUBMISSION OF MATERIAL SAFETY DATA SHEETS

Subject facilities are required to submit Material Safety Data Sheets ("MSDSs") or lists of hazardous chemicals for which there are MSDSs to the IERC, the LEPC, and the local fire department. Reporting is applicable to quantities present in excess of the general 10,000 pound threshold or, for substances which are on the EHS list, in excess of 500 pounds (55 gallons), or the threshold planning quantity, whichever is less. l3 MSDSs were initially required to be submitted by October 17, 1987 (September 24, 1988, for non-manufacturers; April 30, 1989, for the construction industry). Facilities must additionally submit a list or MSDS three months after a facility is required to prepare or have available an MSDS regarding a hazardous chemical. A revised MSDS must be submitted within three months of the discovery of a new subject hazardous chemical. In Indiana, MSDSs should be submitted to: Mr. Philip Powers INDIANA EMERGENCY RESPONSE COMMISSION 5500 West Bradbury Indianapolis, Indiana 46241 (317) 243-5176 6.0 HAZARDOUS CHEMICAL INVENTORY FORMS

Section 312 of Title I11 requires a covered facility to submit an emergency and hazardous chemical inventory form by March 1of each year. This form includes information on categories of hazardous substances which were present at the facility during the preceding year which are in excess of thresholds established by EPA. The form should be submitted to: Mr. Philip Powers INDIANA EMERGENCY RESPONSE COMMISSION 5500 West Bradbury Indianapolis, Indiana 46241 (3 17) 243-5 176 The plan must also be submitted to the appropriate LEPC and to the fire department with jurisdiction over the facility.

--

1342U.S.C. 5 11021.

There is a $100.00 fee for $ 312 chemical inventory

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW

submission^'^ involving up to one million pounds of reported chemicals. For reports of more than one million pounds, a $200.00 fee is required. The Tier I form contains general information as to the amount and general location of hazardous chemicals present at the facility, aggregated by category. Upon specific request, the facility must supply more detailed Tier I1 information on specific hazardous chemicals. The facility may elect to initially submit a Tier I1 form in lieu of a Tier I form.'' 7.0 TOXIC CHEMICAL RELEASE REPORTING

Section 313 of Title 111requires facilities in SIC codes 20 through 39 which manufacture, import, process or otherwise use any of the specified toxic release inventory ("TRY) chemicals in excess of established thresholds to report the amount released to the environment in the preceding calendar year by July 1 of each year. These reports are known as Form R reports.16 The threshold limits are established by law. Form R reports should be submitted to: Title 111 Reporting Center U. S. ENVIRONMENTAL PROTECTION AGENCY P.O.Box 23779 Washington, D. C. 20026-3779 and Philip Powers, Director INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT Emergency Response Branch 5500 West Bradbury Avenue Indianapolis, Indiana 46241 Tel: (317) 243-5 176

141990H.B. 1189, effective January 1, 1991. "42 U.S.C. 5 11022. 1642U.S.C. 5 11023.

CHAPTER 10 ENVIRONMENTAL CONSIDERATIONS IN REAL ESTATE TRANSACTIONS 1.0 INTRODUCTION

In almost all respects, Indiana law with regard to environmental concerns in real estate transactions follows federal and general common law. There are, however, two statutory distinctions and one recent case which set Indiana apart. These unique situations are discussed below. 2.0 INDIANA RESPONSIBLE.PROPERTYTRANSFER LAW

The Indiana Responsible Property Transfer Law ("IRPTL") was enacted by the Indiana General Assembly in 1989 and became effective January 1, 1990.' IRPTL is a transaction triggered law closely modeled after the Illinois Responsible Property Transfer Act of 19882and, like the Illinois law, imposes a burden on private property owners to disclose environmental "defects. " Unlike the first of the property transfer laws, the New Jersey Environmental Cleanup Responsibility Act,3 IRPTL does not require remediation, only disclosure. 2.1 APPLICABILITY 2.1.1 TYPES OF PROPERTY

IRPTL applies to industrial or commercial property which meets one of three ~riteria.~ First, IRPTL applies to real property containing a facility subject to the reporting requirements of Section 312 of the Emergency Planning and Community Right to Know Act of 1986 ("EPCRA"), 42 U.S.C. 8 l10ZL5 It is important to note that IRPTL applies to all companies subject to the EPCRA reporting requirements, not only those in compliance with them. IRPTL also applies to property which is the site of one or more underground storage tanks for which notification is required under federal and state law.6 An underground storage tank is defined by federal and state law as one or a combination of tanks (including any

'Ind. Code $ 13-7-22.5-1et seq. 2111. Rev. Stat. ch. 30, para. 901 et seq. 3 ~ . Rev. ~ . Stat. $ 13. 41nd. Code $ 13-7-22.5-6. 'Ind. Code 8 13-7-22.5-6(1). 'hd. Code $

13-7-22.5-6(2).

ENVIRONMENTAL CONSIDERATIONS IN REAL ESTATE TRANSACTIONS

underground piping) used to contain regulated substances the volume of which is 10% or more beneath the surface of the grounds7 Among tanks not included within this definition are farm or residential motor fuel tanks under 1100 gallons, heating oil tanks used for consumptive use on the premises, storm water collection systems, septic tanks and storage tanks in basements or 'cellars which are on or above the surface of the basement or cellar.' Again, it is important to remember that IRPTL applies to property subject to the underground storage tank notification requirements and not only to property for which such notification has been made. In Indiana, it is estimated that there are 34,000 sites subject to the notification requirements.

Finally, IRPTL applies to property listed on the Comprehensive Environmental Response Compensation and Liability Information System ("CERCLIS") list.g The properties on the CERCLIS list are known or suspected contamination sites. There are more than 1200 Indiana sites listed. The CERCLIS list is available from IDEM. IRPTL specifically exempts from the definition of property real estate that has been subject to bonding or other financial assurances which have been released by the appropriate government agency after compliance with state law.'' 2.1.2 TYPES OF TRANSFERS IRPTL covers only certain types of property transfers." Those transfers subject to the requirements of IRPTL are: (1)

a deed or other instrument of conveyance of fee title to property;

a lease whose term, if all options were exercised, would be more than 40 (2) Ya.rs; (3)

an assignment of more than 25 % of the beneficial interest in a land trust;

(4)

a collateral assignment of a beneficial interest in a land trust;

(5)

an installment contract for the sale of property;

742 U.S.C. 8 6911(1); Ind. Code Q 13-7-20-11(a). '42 U.S.C. 8 6911(1); Ind. Code Q 13-7-2-11@). 'Ind. Code Q 13-7-22.56(3). '%d. Code 8 13-7-22.56(3). "1nd. Code 8 13-7-22.5-7.

(6)

a mortgage or trust deed; and

(7)

a lease of any duration that includes an option to purchase.12

Transfers which are specifically not covered by IRPTL include: (1) a deed or trust document which, without additional consideration, confirms, corrects, modifies or supplements a deed or trust document that was previously recorded; a deed or trust document that, without additional consideration, changes (2) title to property without changing beneficial interest; a tax deed or a deed from a county transferring property the county (3) received under Ind. Code 8 6-1.1-25-5.5;

an instrument of release of an interest in property that is security for a (4) debt or other obligation; (5)

a deed of partition;

a conveyance occurring as a result of the foreclosure of a mortgage or (6) other lien on real property; (7)

an easement;

(8)

a conveyance of an interest in minerals, gas or oil (including a lease);

a conveyance by operation of law upon the death of a joint tenant with (9) right of survivorship; (10)

an inheritance or devise;

(11)

a deed in lieu of foreclosure;

(12) a Uniform Commercial Code sale or other foreclosure of a collateral assignment of a beneficial interest in a land trust; (13) a deed that conveys fee title under an installment contract for the sale of property; and

121nd. Code 3 13-7-22.5-7(a).

ENVIRONMENTAL CONSIDERATIONS IN REAL ESTATE TRANSACTIONS (14) a deed that conveys fee title under the exercise of an option to purchase contained in a lease of property.13

2.2 DISCLOSURE REQUIREMENT

Once it has been determined that the transaction involves property subject to IRPTL and a transfer as defined by the statute, the transferor must make the required disclosures.14 These disclosures must be made on the form set out in the statute." Generally, the disclosure form seeks information about what activities the transferor has conducted on the property during its period of ownership. The disclosure required by IRPTL does not impose an obligation on the transferor to investigate past uses of the property. The disclosure form seeks general property identification information as well as information concerning the transferor's hazardous waste treatment, storage or handling activities, and information concerning generation or manufacture of hazardous substances. The form also inquires about whether the property has ever been, among other things, the site of a landfill, surface impoundment, waste pile, incinerator, wastewater treatment unit, or transfer station; whether the transferor has ever held a permit from the EPA or IDEM or conducted unpermitted activities; whether there have been environmental releases during the transferor's ownership; and whether there have been any federal or state actions taken because of a release on the property. The disclosure form also asks the transferor to describe any environmental defects which exist on the property. The statute defines an "environmental defect" as an environmentally related commission, omission, activity or condition that (1) constitutes a material violation of an environmental statute, regulation or ordinance; (2) would require remedial activity under an environmental statute, regulation or ordinance; (3) presents a substantial endangerment to the public health, welfare or the environment; (4) would have a material adverse effect on the

131nd. Code 3 13-7-22.5-7@). l 4 ~ hstatute e defines a transferor as a seller, grantor, mortgagor or lessor of real property, an assignor of an interest of more th& 25% in a land trust or in the case of a transfer by a trustee of a land trust, the owner of the beneficial interest of the land trust. The definition also includes a prospective transferor. %d. Code 8 13-7-22.5-15.

INDIANA ENVIRONMENTAL LAW HANDBOOK

market value of the property or of abutting property; or (5) would prevent or materially interfere with another party's ability to obtain a permit or license to operate a facility on the property.16 2.3 DELIVERY OF DISCLOSURE DOCUMENT The transferor must provide the disclosure form to the transferee and to any lender involved in the transaction at least 30 days before the transfer.17 This 30-day deadline can be waived in writing by all of the parties to the transaction.18 The waiver must specifically indicate that the parties are aware of the purpose and intent of the disclosure document. If a waiver is obtained, the transferor must deliver the disclosure document to each of the other parties to the transaction on or before the date on which the transfer of property is to become final. l9 If the transferor fails to deliver the disclosure document 30 days before the transfer takes place and no waiver has been obtained, the transferee or its lender may demand the disclosure document from the transferor. A party who makes such a demand may void its obligation to accept the transfer of the property or to finance the transfer if the disclosure document is not received within ten days or if, when the disclosure document is received, it reveals a previously unknown environmental defect.20 Similarly, even if a waiver has been obtained, if a transferor or lender does not receive the disclosure document before the closing, either party can make a demand for the disclosure document. If the document is not received within ten days of the demand, or if when received the document reveals a previously unknown environmental defect, the transferor or lender may void its obligation to complete the tran~fer.~' A party to a transfer of property may not, however, void its obligation to accept the transfer of the property or to finance the transfer after the transfer of property has taken place.22 Once a property transfer subject to IRPTL has taken place, the transferor or transferee must record the disclosure document in the office of the recorder of the county in which the '%d. Code 5 13-7-22.5-1.5. 17hd. Code 5 13-7-22.5-10(a). lglnd. Code 13-7-22.5-lo@). 191d. 201d.; Ind. Code 3 13-7-22.5-11. 211nd. Code 5 13-7-22.5-13. 22~nd.Code Q 13-7-22.5-14.

ENVIRONMENTAL CONSIDERATIONS IN REAL ESTATE TRANSACTIONS

property is located within 30 days after the effective date of the transfer.23 In addition, the transferor must file a copy of the disclosure document with IDEM within 30 days after the transfer.24 Thus, the disclosure document becomes one of the title documents for the subject property once it has been recorded. However, IRPTL provides that if a disclosure document which has been recorded reports the existence of an environmental defect on the property, a person who has a financial interest in the property may record in the same recorder's office in which the disclosure document is recorded a separate document that reports that the environmental defect has been eliminated from the property.25 This "cure" document must be certified by a professional engineer registered under Indiana law who does not have a financial interest in the property.26 IRPTL imposes civil and criminal penalties for failure to comply with its requirements. The failure to deliver the disclosure documents is a Class B infraction subject to up to a $1000 fine.n The failure to properly record the disclosure document is a Class A infraction subject to up to a $10,000 fine.28 Making a false statement in the disclosure document is also a Class A infraction subject to up to a $10,000 fine for each day the false statement remains

uncorrecte~l.~~ IRPTL also authorizes a civil action by one party to the transfer against another party to recover consequential damages, costs and attorney's fees, for a violation of the statute.30 3.0 LIABILITY EXEMPTIONS FOR FIDUCIARIES Although not directly aimed at real estate transfers, Indiana's recently adopted exemptions from state Superfund liability for fiduciarie~~~ may affect the willingness of lenders to fund real property transactions. These exemptions are discussed in more detail in Chapter 7.32 Briefly, 231nd. Code 8 13-7-22.5-16(a)(1). ?nd. Code 8 13-7-22.5-16(a)(2). 251nd. Code 8 13-7-22.5-22. 26~d. ?nd. Code 8 13-7-22.5-17. 28~nd.Code 8 13-7-22.5-19. 2gInd. Code 8 13-7-22.5-18. 3%nd. Code 8 13-7-22.5-21. 311nd. Code 5 13-7-8.7-8. 3 2 ~ eChapter e 7, footnotes 19 through 21.

INDIANA ENVIRONMENTAL LAW HANDBOOK these sections provide protection to secured creditors or fiduciaries unless they exercised "actual and direct managerial control" over hazardous substances at a facility.33 In addition, any liability which is incurred is limited to the assets held by the fiduciary in the same estate or trust as the facility which gives rise to the liability.% 4.0 THE PANTRY, ZNC.

V. STOP-N-GO FOODS, INC.

In October 1991, Judge Tinder, Federal District Judge for the Southern District of ' holding that the seller of a Indiana, decided R e Pantry, Inc. v. Stop-N-Go Foods, ~ n c . ~In chain of gas station/convenience stores breached the environmental warranties made to buyer, Judge Tinder reached several conclusions significant to property transfers in Indiana. First, Judge Tinder ruled that the seller was liable for remediation of property conditions because the existence of those conditions violated the warranties in the purchase and sale agreement.36 Second, in reaching his decision Judge Tinder concluded that Indiana's underground storage tank law applies retroactively, thus allowing the purchaser to correct a site contaminated by a pre-enactment release and to seek contribution from the owner of the site at the time of the release.37 Finally, Judge Tinder stated that unpublished administrative memoranda and guidelines are not "of legal effect."38 Obviously, the ramifications of these conclusions have yet to be felt in Indiana.

331nd. Code Q 13-8-8.7-8(e). %Ind. Code Q 13-8-8.7-8(f). 35777F. Supp. 713 (S.D.Ind. 36~d.at 722-723. 37~d. at 721. 381d. at 731.

1991).

CHAPTER 11 INDIANA ADMINISTRATIVE PROCEDURE 1.0 INTRODUCTION

Although the substantive concerns of the various state environmental agencies differ greatly, procedural uniformity is bestowed upon the agencies by virtue of articles in the Indiana Code on administrative orders and procedures1 and administrative rules and procedure^.^ These articles govern the adjudicatory and rulemaking processes of nearly all officers, boards, commissions, department divisions, bureaus and other agencies with executive power in the state of Indiana,3except to the extent a statute provides otherwise. 2.o APPLICABILITY The articles on orders and rules create minimum procedural rights and impose minimum procedural d ~ t i e s .Unless ~ precluded by law, one may waive any right, but in no case may one waive a procedural duty."or

example, a person can agree to forego a hearing but may not

agree to extend the deadline for appeal. 2.1 AGENCY ADJUDICATION

Administrative adjudication typically involves an order, which is an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific person^.^ Such quasi-judicial functions of an agency are governed by the provisions of the "Orders Article" of Ind. Code 8 4-21.5. The Orders Article contains provisions which apply to parts of trial-like proceedings such as service of process, notice, final orders, and review. Administrative proceedings of the Department of Natural Resources are governed by portions of the Indiana Administrative Code in addition to the Orders Arti~le.~ 'Ind. Code $8 4-21.5-1-1 to 4-21.5-6-7 (effective July 1, 1987) (formerly Ind. Code $8 4-22-1-1 to -10, known commonly as the Administrative Adjudication Act). 21nd. Code $8 4-22-2-3 to -37. 31nd. Code $8 4-21.4-1-3; 4-22-2-3.

$9 4-21-5-2-1; 'Ind. Code $0 4-21.5-2-2; %d. Code 8 4-21.5-1-9.

4hd. Code

4-22-2-14. 4-22-2-14.

7310 I.A.C. 0.5-1-1 to -19. This section controls if an administrative law judge is appointed but merely guides an action heard by the ultimate authority of the agency.

INDIANA ENVIRONMENTAL LAW HANDBOOK The extent of the individual agency's quasi-judicial power is determined by statute. For example, the Commissioner of the Department of Environmental Management may issue orders and make determination^.^ However, the enabling statutes of the Air Pollution Control B ~ a r d , ~ the Water Pollution Control Board1' and the Solid Waste Management Board" provide authorization for the boards to review orders and determinations and for the commissioner of each board to appoint administrative law judges to conduct review proceedings and enter into agreed orders.

2.2 AGENCY RULEMAKING The procedure regarding the addition, amendment, or repeal of a rule by an agency is controlled by Article 22 of Title 4 of the Indiana Code (the "Rules Article"). The primary provisions of the Rules Article cover notice of, hearings on, and adoption and approval of agency rules. As with adjudicatory powers, the nature and extent of an agency's quasi-legislative power is determined by statute. For example, the Air, Water, and Solid Waste boards may adopt, repeal, rescind or amend rules and standards.12

The Department of Environmental

Management, on the other hand, is authorized only to propose such rulemaking action to the boards.13

2.3 EXEMPTED AGENCY ACTIONS The legislature has exempted certain agency actions from the coverage of the Orders Article. Among agency actions exempted from the Orders Article are actions related to internal policy, a decision concerning a grant or loan,14 and a decision whether or not to initiate an

'hd. Code 8 13-7-5-2.

'hd. Code 8 13-1-1-40.

Code 8 "Ind. Code 8 %d.

13-1-3-4(c). 13-1-12-8(a)(2),(c).

121nd. Code 8 13-7-7-l(a). 131d. 14hd. Code

3 4-21.5-2-50 (the Environmental Management Board is specifically mentioned).

INDIANA ADMINISTRATIVE PROCEDURE

inspection or investigation or the conduct of an inspection or investigation.15 In addition, the determination of internal policies need not conform to the Rules Article.16 3.0 ADJUDICATION

An agency engages in adjudication every time it issues an order. The agency issuing an order must provide proper notice and opportunity to be heard to specified persons for the order or determination to be valid. l7 3.1 NOTICE

Notice, service and filings with the ultimate authority may be made by United States mail or personal service.18 This contrasts with the old statute which required such documents to be delivered by registered or certified mail.19 In rejecting the holding of a case which held that notice served upon an attorney is not notice to the client,20the act provides for service upon the individual or a repre~entative.~'If necessary, service by publication is permissible but must contain a statement advising how one may receive written notice.22 The time for service or any other specific time period under the act is determined pursuant to a provision which is nearly identical to Trial Rule 6(a) of the Indiana Rules of Trial Pr0cedure,2~and provides for intervening weekends and holidays, periods of less than seven days, and service by mail. The notice provisions vary according to the anticipated impact of the type of agency action. Notices regarding individual license determinations, personnel decisions, and safety orders must be sent to each person to whom the order is specifically addressed and to whom a law requires notice be given.24 In situations where the agency action is likely to arouse public

lSInd. Code $ 4-21.5-2-5.

161nd. Code $ 4-22-2-13(b). 171nd. Code

$5 4-21.5-3-3 to -6.

181nd.Code $ 4-21.5-3-l(a),

(b).

lgInd. Code $ 4-22-1-6 (1982) (repealed, effective July 1, 1987).

20~olar Sources, Inc. v. Air Pollution Control Board, 409 N.E.2d 1136, (hd. App. 1980). 211nd. Code 8 4-21.5-3-l(c). 221nd. Code 5

4-21.5-3-l(d),(e).

231nd. Code 5 4-21.5-3-2.

%d.

Code 55 4-21.5-3-4(a), (b), -6(a), (b).

INDIANA ENVIRONMENTAL LAW HANDBOOK

concern and have wide impact, as with many environmental actions, notice must also be given to those so requesting, those with a substantial and direct proprietary interest in the subject matter of the order, and those whose absence from the proceedings would deny another party complete relief.25 The notice concerning an order must contain a brief description of the order, a brief explanation of the procedures for and limitations on review and other information required by law.26 When applicable, notice of any pre-hearing conference, preliminary hearing, hearing, stay or final order must be issued." The effective date of an order varies by the type of proceeding. An order concerning an individual license or a personnel decision is effective when served.28 A decision of the Commissioner of the Indiana Environmental Management Board regarding a permit is also effective imrnediatel~.~~ Other orders are effective 15 days, or longer, after the order is served, if there is no request for review.30 Upon motion, a hearing may be held to determine if the order should be staye~i.~' 3.2 ADMINISTRATIVE REVIEW A person to whom an order is directed, who is aggrieved or adversely affected by the

order or who is otherwise entitled to review, may petition the ultimate authority of the agency for review of the order within 15 days after receipt of notice.32 When the petition for review is granted, an administrative law judge ("ALJ") is assigned to the case and the review process begins.33

2SInd. Code $ 4-21.5-3-5@)(4), 46). 261nd. Code $$ 4-215-3-4(c), -5(c), -6(c). 271nd. Code $ 4-21.5-3-5(d). 281nd. Code $ 4-21.5-3-4(d). 2gInd. Code 8 13-7-10-2.5@). 3%d. Code $ 4-21.5-3-50.

311nd. Code 55

4-21.5-3-4(e), -5(h), -6(e).

32~nd.Code 5 4-21.5-3-4-7(a)(2) (1988). A longer period may be set by statute. 33~nd.Code 5 4-21.5-3-7(d).

INDIANA ADMINISTRATIVE PROCEDURE

3.2.1 PRE-HEARING CONFERENCE

The ALJ may, subject to the agency's rules, and must, upon motion of the parties, conduct a pre-hearing conference.% Notice of the date and time of the hearing containing specific preliminary information must be sent to parties to the proceeding, those who request notice, and others entitled to notice by law.3s To expedite matters, the ALJ may hold part or all of the pre-hearing conference by electronic means such as telephone or television if feasible.36 The pre-hearing conference shall deal with matters which will promote the orderly and prompt conduct of the hearing. Such matters may include, but are not limited to, resolution and clarification of issues, exploration of settlement, stipulations, preliminary rulings on witnesses and evidence, and ordering of the presentation of the case.37 The ALJ will issue a pre-hearing order containing resolved issues which is binding during the hearing. 3.2.2 PREHEARING PROCEDURE The ALJ must set the time and place for the hearing and give reasonable notice to all parties and petitioners for inte~ention.~'The notice must include a copy of any pre-hearing orders and contain specific information regarding the parties, the hearing, the issues and

procedure^.^^ The ALJ may notify non-parties, but such notice need not be as detailed as that given to parties.40 Prior to the start of the hearing, the ALJ may grant petitions for intervention if the petition is submitted in writing and the petitioner has a right to intervene or is aggrieved or

?nd.

Code Q 4-21.5-3-18(a).

3SInd. Code Q

4-21.5-3-18(c), (d).

361nd. Code Q 4-21.5-3-19@). 37~nd.Code Q 4-21.5-3-19(c). 38~nd.Code Q 4-21.5-3-20(a). 39~nd.Code § 4-21.5-3-20-(b), (c). 40~nd.Code 8 4-21.5-3-2O(t).

INDIANA ENVIRONMENTAL LAW HANDBOOK adversely affected by the order.41 After the hearing has begun, intervention may be allowed if justice permits.42 The AW may issue, at the request of a party or the agency, subpoenas, discovery orders and protective orders in accord with the rules of civil pr0cedu1-e.~~ 3.2.3 SUMMARY JUDGMENT, DEFAULT, DISMISSAL

A provision for summary judgment4" is new to the Orders Article, although the rules for the Department of Natural Resources provided for summary proceedings prior to the Code re~ision.~'At any time after the matter is assigned to an ALJ, a party may move for summary judgment as to all or any part of the issues.46 The motion must be supported with affidavits or other evidence, set forth specific facts showing there is no genuine issue in dispute, and be served at least five days prior to the

Judgment shall be rendered immediately if, in

light of all the evidence, no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law.48 The ALJ may grant a partial order, but such order The adverse is not final and the ALJ must designate which issues or claims are undi~puted.~~ party in a summary proceeding must not rely solely upon the allegations or denials in the pleading in response to the motion for summary judgment." A party who fails to take action in an administrative proceeding will be subject to an order of default or dismissal. The ALJ may serve notice of a default or dismissal order if a party.fails to file a responsive pleading, attend or participate in any stage of the proceeding or take action for a period of 60 days if required to do so by law."

411nd. Code Q 4-21.5-3-21(a).

421nd. Code 5 4-21.5-3-21(c). 431nd. Code Q 4-21.5-3-22. '%d.

Code Q 4-21.5-3-23.

45310I.A.C. 0.5-1-11. 46~nd.Code $ 4-21.5-3-23(a).

47~d., 8 4-21.5-3-23@). 4 8 ~ .

49~d. 'OI~.

%d.

Code 5 4-21.S-3-24(a).

The party facing dismissal

INDIANA ADMINISTRATIVE PROCEDURE

may request the order be set aside within seven days after the notice, but during that period the ALJ may continue the pro~eeding.~~ If the party fails to take action or the ALJ does not find merit in the party's explanation of delay, the ALJ shall issue the order of default or dismissal.53 After issuing the default order, the ALJ may wind up the proceedings in a summary manner.M 3.2.4 HEARING PROCEDURE If a hearing is necessary, it shall proceed in conformity with any pretrial orders and in

an informal manner without recourse to technical common rules of evidence." The parties shall have the opportunity to respond, present evidence and argument, conduct crossexamination, and submit rebuttal evidence, subject to limitations which the ALJ may impose.56 If non-parties are afforded the opportunity to present evidence, the AW shall allow the parties -

to comment on that e~idence.'~ The hearing shall be recorded at the agency's expense.58 The agency is not required to prepare a transcript, although a party may, at its own expense, prepare a transcript or recording.5g While the hearing procedure is informal, the ALJ may sustain objections to the admission of irrelevant, immaterial, unduly repetitious or otherwise excludable evidence or may exclude such evidence on his own.60 Testimony shall be given under oath or affirmation administered by the ALJ.61 The ALJ may admit hearsay evidence in an administrative hearing. If not objected to, the hearsay evidence may form the basis of an order.62 If, however, a party

521nd. Code $ 4-21.5-3-25(b). "Ind. Code Q 4-21.5-3-25(c). %d.

Code Q 4-21.5-3-25(d).

%d.

Code Q 4-21.5-3-25(b).

'%d. Code Q 4-21.5-3-25(c), (d) (1988). The AIJ may limit a party to certain issues, limit the party's use of discovery, cross-examination and other procedures and require parties to combine their presentations. Id. 571nd. Code Q 4-21.5-3-250. 581nd. Code $ 4-21.5-3-25(g).

59~d. '%d. Code $ 4-21.5-3-26(a). %d. Code 65 4-21.5-3-26(b), 4-21.5-3-25(e). 621nd. Code 3 4-21.5-3-26(a).

INDIANA ENVIRONMENTAL LAW HANDBOOK

objects to the hearsay evidence and no exception exists, the resulting order cannot be based solely on hearsay but must be corroborated by other evidence.63 The AIJ may take judicial notice of certain facts, provided the parties are notifred and given an opportunity to contest such facts. Specifically, official notice may be taken of the record of other agency proceedings, of technical or scientific matters within the agency's area of expertise, of federal or agency promulgated standards, and of any fact that could be judicially noticed by a court.64

3.3 ORDERS 3.3.1 RECOMMENDED ORDER Because an AW is not the ultimate or final authority for the various environmental boards, the order issued by the ALJ is not final, but recommended. Such an order must contain separately stated findings of ultimate and underlying basic facts and must outline the available procedures for administrative review.6s The ALJ's order must be issued in writing to the parties and the ultimate authority for the agency within 90 days, unless such period is altered by agreement or for good cause.66 The ultimate authority's final order must also comply with the applicable requirements of the recommended order.

3.3.2 FINAL ORDERS The board or its designee must conduct proceedings to issue a final order.67 The board or its designee must afford each side an opportunity to present briefs and may allow oral argument, preparation of transcripts at the agency's expense, presentation of additional evidence and participation by non-parties.68 The board must issue a final order which affirms, modifies, or dissolves the ALJ's order.69 The final order must identify the differences from the ALJ's order, include findings 63~d.,Capital Improvement Board of Managers v. Public Service Comrmmrmssion, 375 N.E.2d 1978) (decided under old version of the Administrative Adjudication Act). 6Qhd.Code 8 4-21.5-3-260. ''hd. Code 8 4-21.5-3-27(b). 66hd. Code $ 4-21.5-3-27(f). 67hd. Code 8 4-21.5-3-28(b).

Code 8 4-21.5-3-28(e). 69hd. Code 8 4-21.5-3-29(b). %d.

616, 624 (Ind.

App.

INDIANA ADMINTSTRATWE PROCEDURE

of fact, and describe the available review process.70 The final order shall be issued, unless agreed otherwise, within 60 days of the recommended order, receipt of briefs, or close of oral arguments.'l 3.3.3 MODIFICATION OF FINAL ORDER

Within certain time limits, an agency may modify a final order or stay the order in whole or partVn The board or its designee may grant a petition for limited rehearing if the petitioner is not in default and pertinent new evidence is discovered which could not have been obtained earlier.73 3.3.4 INSPECTION, PRECEDENTIAL EFFECT, RECORDS

The agency shall make all final orders available for public inspection and copying, but shall delete details which identify the parties."

Once the order has been indexed and made

available for public inspection, the agency may rely upon the order as precedent to the detriment of any person.'" The agency shall also maintain an official record of each proceeding. The record consists of specific items pertinent to the case such as notices, orders, pleadings, evidence, staff memoranda and other matters placed on the record.76 4.0 RULEMAKING

In addition to its quasi-judicial functions, an agency has the legislative-like power to promulgate rules related to the agency's area of expertise. "Rule" means the whole or any part of an agency statement of general applicability that has or is designed to have the effect of law and that implements, interprets or prescribes law, policy or the organization, procedure or

'%d.

Code 5 4-21.5-3-28(g).

711nd. Code 5 4-21.5-3-290. %d.

Code 5 4-21.5-3-31.

l31d. 74hd. Code 5 4-21.5-3-32(,). 75~nd.Code Q 4-21.5-3-32(b). 76~nd.Code 8 4-21.5-3-33.

INDIANA ENVIRONMENTAL LAW HANDBOOK

practice requirements of an a g e n ~ y .Rulemaking ~ authority may be delegated by the agency to a staff member, agent or other entity with the statutory power to adopt rules for the agen~y.7~ 4.1 NOTICE

An agency considering the adoption of a new rule must format the rule according to statute and may consult the Attorney General in doing so.79 The agency has the option of soliciting comments from the public through conferences or in writing; however, failure to seek comments does not invalidate a subsequently adopted rule.80 Unlike the non-mandatory solicitation of comments, notice to the public of an agency's intention to adopt a rule is a prerequisite to proper adoption of the rule. Notice of a public hearing shall be published in a general circulation newspaper and notice of the hearing and a full text of the proposed rule shall be published in the Indiana Regi~ter.~'In either case, the notice must contain the exact date, time and place of the hearing, a general description of the subject matter of the rule and an explanation of how the rule may be inspected, but insufficient notice is not grounds for in~alidation.~~ The agency has one year from the date the proposed rule is published in the Indiana Register to complete the rulemaking process.83 4.2 PUBLIC HEARINGS

On the specified date, the agency must hold a hearing in an informal manner which allows adequate opportunity for comment.84 The individual or group with authority to adopt the rule shall fully consider comments received at the public hearing and may consider other information as well.85 Attendance at the hearing or review of a written record or summary of the public hearing is sufficient to condtitute full c~nsideration.~~

nInd. Code 8 4-22-2-3@).

781nd. Code 5 4-22-2-15. 791nd. Code $8 4-22-2-20, -22. 8%d. Code 8 4-22-2-23.

"Ind. Code Q

4-22-2-24(b),(c).

821nd. Code 8 4-22-2-24(d). 831nd. Code 8 4-22-2-25. %d.

Code 8 4-22-2-26.

851nd. Code 8 4-22-2-27. 86~d.

INDIANA ADMINISTRATIVE PROCEDURE

4.3 ADOPTION, APPROVAL AND FILING OF RULES

Following the public hearing, the agency may adopt an identical, consolidated, edited or revised version of the published rule.87 The adopted rule may not, however, substantially differ .from the published version of the rule.88 After adoption of the rule, the Attorney General must review it for consistency with the published version. The Attorney General must disapprove the rule if it is adopted without statutory authority, without compliance with proper proceedings, or in violation of law, and may return a rule to the agency if the rule does not comply with applicable standards.89 If the Attorney General neither approves nor disapproves the rule within 45 days, the rule is deemed approved. After the approval of the Attorney General is obtained, the agency submits the rule to the Governor for approval.91 The Governor may approve or disapprove with or without cause and has 15 days, or 30 days if requested, to do so.92 If no action is taken within the allowed period, the agency may submit the rule to the Secretary of State for filing without the Governor's approval.93 The effective date of the rule is the latest of the date in the statute delegating authority for the rule; the date 30 days from the filing of the rule; the stated effective date; or the date of full compliance with legal req~irements.~" 5.0 JUDICIAL REVIEW

Chapter 5 of the Orders Article establishes the exclusive means for judicial review of an agency order."

A person seeking review of all or part of an order, the failure to issue an

87hd. Code $ 4-22-2-29.

88~d. 891nd. Code 88 4-22-2-31 to -32. 9%d. Code 8 4-22-2-32(f). ' h d . Code 8 4-22-2-33. 921nd. Code 8 4-22-2-34.

931d. %d.

Code 5 4-22-2-36.

9 5 ~ dCode .

5 4-21.5-5-1.

INDIANA ENVIRONMENTAL LAW HANDBOOK

order, or the performance or failure to perform any other duty, function or activityg6must meet every requirement of the act to obtain such review.

5.1 REQUlREMENTS FOR REVIEW Judicial review is initiated by the filing of a petition for review in the appropriate court.97 If the petitioner is asking for reconsideration of a final order, he must meet the requirements concerning standing, exhaustion of administrative remedies, time limitations for filing and any other requirements set by law.98 If the challenged order is not a final order, the petitioner must make a showing that he will suffer immediate and irreparable harm and that no adequate remedy exists at law."

5.1.1 STANDING Persons who have standing to obtain judicial review include a person to whom the agency action was specifically directed, a person who was a party to the agency proceedings that led to the agency action, and a person eligible for standing under a law applicable to the agency action.'''

A person otherwise aggrieved or adversely affected by the agency action may have

standing if the agency action has prejudiced or is likely to prejudice that person's interests, if the person was eligible for but failed to receive proper notice or was denied his right to intervene, if the person's interests should have been considered by the agency, and if the relief sought would likely redress the prejudice suffered.lo1 In essence, the statute enumerates the traditional injury-in-fact standards for standing.

5.1.2 EXHAUSTION The person seeking review of an agency action must seek every available avenue to redress his concerns at the agency level before resorting to the courts. A person may file a petition for review of an agency action only after exhausting all administrative remedies available

961nd. Code 5 4-21.5-1-4 (1988) (definition of "agency action").

%d. Code 5 4-21.5-1-5-2(a) (1988). State courts have authority to review quasi-legislative actions of administrative agencies in the enactment of regulations as well. Indiana Environmental Management Board v. IndianaKentucky Electric Corp., 393 N.E.2d 213,221 (Ind. App. 1979). "Ind. Code 5 4-21.5-5-2(b). "Ind. Code 5 4-21.5-5-2(c). '%d. Code 5 4-21.5-5-3(a). 'O1lnd. Code 8 4-2l.S-S-3@).

INDIANA ADMINISTRATIVE PROCEDURE

with the agency or other agencies.lo2 The purposes served by the exhaustion doctrine include the avoidance of collateral, dilatory action, the assurance of efficient, uninterrupted progression of administrative proceedings and the effective application of judicial review.lo3 The doctrine also allows the agency to correct its own errors, exercise its expertise and develop an adequate record for review. '04 A person otherwise qualified to obtain review may waive such right by dilatory action. A person who fails to timely object to an order or timely petition for review of an article or who

is in default has waived his right to judicial review.los 5.1.3 EILING REQUIREMENTS A properly filed petition is another requirement for judicial review. A petition must be

verified,lMfiled within 30 days after the date notice of review was served,lo7and contain certain specific information.lo8 In addition to the petition, the person seeking review must file the agency record for review with the court within 30 days.lW Extensions for good cause are available, but failure to file the record within the applicable time is grounds for dismissal.110 A petitioner for review must serve a copy of the petition upon the board, the Attorney General and each party to the proceeding."'

The rules concerning civil actions in the courts

govern service and notice related to judicial review of administrative proceedings.112

lo21nd. Code 5 4-21.5-5-4(a). 103~niroyal, Inc. v. Marshall, 579 F.2d 1060, (7th Cir. 1978).

'OQ1d. lo51nd. Code Q 4-21.5-5-4@).

lMseeIndiana State Personnel Board v. Parkmun, 245 N.E.2d 153, 156 (Ind. 1969). '%d.

Code 5 4-21.5-5-5.

lo8Ind. Code 5 4-21.5-5-7. logInd. Code 5 4-21.5-5-13(a).

"%d.

Code Q 4-21.5-5-13@).

"'1nd.

Code Q 4-21.5-5-8(a).

l121nd. Code Q 4-21-5-5-8@).

INDIANA ENVIRONMENTAL LAW HANDBOOK 5.2 SCOPE OFREVIEW

Once the agency action is properly before the court, the court follows appellate process. Thus, a person may obtain judicial review of an issue not raised before the agency, but only to the extent the issue concerns whether a person entitled to notice was notified or whether the interests of justice would be served by a judicial resolution of an issue arising from a recent change in controlling law. 113 Review of disputed issues of fact must be confined to the agency record.ll4 The court may not try the case de novo or substitute its judgment for that of the agency.'''

Deference

to the agency's findings prevents the court from interfering with the exercise of the agency's expertise merely because the court itself might have drawn a different Although functioning as an appellate court, the reviewing court may, in limited circumstances, receive evidence in addition to that in the record. The court may consider evidence which could not have been discovered prior to review and which relates to the validity of the agency action to the extent it challenges the constitutionality of the decision making body or the unlawfulness of the decision process.l17 Otherwise, if the agency record is inadequate, improperly excludes evidence or is affected by a change of law, the reviewing court may remand the matter to the agency with instructions to conduct further fact finding."'

5.3 STANDARDS OF REVIEW The burden of demonstrating the invalidity of an agency action is on the party to the judicial review proceeding asserting invalidity.llg Validity shall be determined within the confines of specified standards. Thus, a reviewing court will set aside an agency action if the petitioner shows that the agency action is arbitrary, capricious, an abuse of discretion or

l13Jnd. Code

5 4-21.5-5-10.

'l4hd. Code $ 4-21.5-5-11. ll5~d.

116~anison-~ashington Community Sch. v. "'Jnd.

Code 5 4-21.5-5-12(a).

"'Ind.

Code 5 421.5-5-12(b).

llgInd. Code 5 4-21.5-5-14(a).

Bales, 450 N.E.2d 559, 565 &d.

App. 1983).

INDIANA ADMINISTRATIVE PROCEDURE

otherwise not in accordance with law.120

Likewise, an action which is contrary to

constitutional right, power, privilege or immunity or in excess of statutory jurisdiction, authority or limitations or short of statutory right is invalid.121 The court will also grant relief upon a demonstration that the action was without observance of procedure required by law.122 Finally, the court will invalidate an action unsupported by substantial evidence.'23 Substantial evidence requires something more than a scintilla and something less than preponderance of the evidence.124 If the reviewing court finds that the petitioner has been prejudiced under one of the

standards of review, the court may set aside the agency action and remand the case to the agency for further proceedings or compel agency action that has been unreasonably delayed or unlawfully withheld.12' Decisions on petitions for review of agency action are appealable in accordance with the rules governing civil appeals from the court.126 6.0 CIVIL ENFORCEMENT Final orders of an administrative agency have the force of law and may be enforced in the civil courts.ln In addition, civil courts may enforce subpoenas, discovery orders and protective orders issued by an ALJ.12' Enforcement of a final order may be sought by the agency or the Attorney General and, if no action is taken by either entity, by a party to the proceedings in which the order was issued.129 Relief granted in a civil enforcement action includes issuance of an injunction, restraining order or the requested order, but does not, unless expressly provided, include monetary payment. 130 5 4-21.5-5-14(d)(1). 5 4-21.5-5-14(d)(2), (3). 1221nd. Code 5 4-21.5-5-14(d)(4). 1231nd. Code 5 4-21.5-5-14(d)(5). 12%d. Code

1211nd. Code

'24~tate ex re]. Department of Natural Resources v. Lehrnan, 378 N.E.2d 31, 36 (Ind. App. 1978).

12'Ind. Code 5 4-21.5-5-15.

5 4-21.5-5-16. lnhd. Code 5 4-21.5-6-1. 12'Ind. Code 5 4-21.5-6-2. 12%d. Code

'291nd. Code 5 4-21.5-6-3. 13%d. Code

8 4-21.5-6-3@),-6.

INDIANA ENVIRONMENTAL LAW HANDBOOK 7.0 CONCLUSION

Any person dealing with a state agency must be aware of the procedural regulations and limitations imposed upon such dealings by the Indiana Code. While the agency and the citizen may view some of the requirements as burdensome, the administrative procedure provisions of the Code provide a level playing field for all involved in the administrative arena.

CHAPTER 12 INDIANA ENVIRONMENTAL TORT LAW

Aside from statutory remedies, relief in environmental cases may be available under various common law doctrines. This chapter discusses a few of those doctrines. 1.0 NUISANCE

Nuisance actions in Indiana are governed by the Indiana Nuisance Act.' As defined by that statute, a nuisance is "[wlhatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property. "2 When a nuisance is found, the statute authorizes courts to abate or enjoin the nuisance and to award darn age^.^ The Nuisance Act codifies Indiana's common law of nuisances4 Under both common law and the Indiana Nuisance Act the definition of "nuisance" is very broad.'

It is clear,

however, that Indiana courts will enjoin activities and will award damages when the activities unreasonably interfere with the use and enjoyment of property by causing p~llution.~ At common law there are two types of nuisance: public and private. A private nuisance is one which affects a limited number of individuals or which affects the plaintiff ~niquely.~ A public nuisance, on the other hand, affects a large number of persons ~imilarly.~Only the

state can prosecute an action for a public nuisance; an individual cannot sue unless he or she can show some specific injury different in kind or degree from that suffered by the public generally.

'Ind. Code 8 34-1-52-1 to -4. 2 ~ n dCode . 8 34-1-52-1. 31nd. Code 8 34-1-52-3. 4~avoustv. Mitchell, 146 Ind. App. 536,257 N.E. 2d 332 (1970). 5 ~ e a g eand r Sullivan, Inc. v. Oweill, 163 Ind. App. 466, 324 N.E.2d 846 (1975). 'see, e.g., Sherk v. Indiana Waste Systems, 495 N.E.2d 815 (Ind. Ct. App. 1986). 7 ~ e a g eand r Sullivan, Inc. v. OWeill, 163 Ind. App. 466,324 N.E.2d 846 (1975). 8~eresfordv. Starkey, 563 N.E.2d 116 (Ind. Ct. App. 1990). of Rome City v. King, 450 N.E.2d 7 2 (Ind. Ct. App. 1983).

own

INDIANA ENVIRONMENTAL LAW HANDBOOK

The distinction between public and private nuisance is not found in the Indiana Nuisance Act. However, because the act merely codifies common law, the difference sur~ives.'~Thus, a private party cannot bring a nuisance action where the nuisance is public. Because pollution damage often affects large numbers of persons in the same way, this distinction may provide an important defense.'' Even with a "group injury," however, if the plaintiffs succeed in showing a unique injury a nuisance action may succeed.12 Furthermore, nuisance liability is strict, meaning that neither the lawfulness of the offending activity nor the lack of negligence in carrying it out are defenses.13 2.0 TRESPASS

In Indiana, every unauthorized entry on the land of another is a trespass.14 Thus, as with nuisance, trespass is a form of strict liability and the plaintiff need only prove that the defendant caused some physical trespass.15 Depositing pollutants on another's land may be a trespass, even if the activity giving rise to the pollution was not conducted negligently.16 3.0 WASTE

Under Indiana law, actions for waste are governed by statute.17 As defined by the courts, "waste" is "the destruction, misuse, alteration, or neglect of the premises by one lawfully in possession to the prejudice of an estate or interest therein of another. "18 Therefore, to bring

an action for waste requires a relationship such as that of landlordltenant, remaindermanllife tenant or mortgagorlmortgagee so as to provide the requisite interests in the property.

1°~owrerv. Ashland Oil & Refining Co., 518 F.2d 659 (7th Cir. 1975); Davoust v. Mitchell, 146 Ind. App. 536, 257 N.E.2d 332 (1970). "see, e.g., Nut? Glue Co. v. Thrash, 76 Ind. App. 381, 132 N.E. 311 (1921) (plaintiffs had no cause of action in nuisance for factory odors where plaintiffs failed to show any injury, different from the community generally); West Muncie Strawboard Co. v. Slack, 164 Ind. 21,72 N.E. 879 (1904) (discharge of chemicals into creek constituted public nuisance). 12see, e.g., Town of Rome City v. King, 450 N.E.2d 72 (Ind. Ct. App. 1983). 13sherk v. Indiana Waste System, 495 N.E.2d 815 (Ind. Ct. App. 1986). 14~vanr v. State, 493 N.E.2d 806 (Ind. Ct. App.), rev'd on other grouncis 495 N.E.2d 739 (Tnd. 1986). 151d.; see also Conner v. WoodJill, 126 Ind. 185, 25 N.E. 876 (1890).

%ee, e.g., City of Bloomington v. Westinghouse Electric Cop., '891 F.2d 611 (7th Cir. 1989). 171nd. Code $ 34-1-50-1 through 2. 18~inleyv. Chain, 176 Ind. App. 66, 374 N.E.2d 67 (1978).

INDIANA ENVIRONMENTAL TORT LAW

In the pollution context, the most likely application of the common law of waste is in the landlordhenant context. In that setting, if a tenant "misuses" the property by contaminating it the landlord may well have a claim of waste against that tenant. 4.0 NEGLIGENCE

The negligent handling, storage or disposal of toxic substances that proximately causes injury to another or to another's property is actionable in lndiana.lg In these situations, the principles of negligence applicable to any activity apply. Therefore, something like an accidental spill causing toxic substances to flow over another's property presents a relatively straightforward problem for negligence analysis. A negligence claim arising out of past waste disposal, however, raises difficult questions as to what constitutes "reasonable care" and whether the standard of care was breached. For example, as in the case of a gradually leaking landfill, disposal practices now known to be harmful to human health and the environment may have been acceptable at the time they occurred. In addition, particularly in personal injury cases, it may be difficult to prove the necessary causal connection between the defendant's activity and the plaintiff's injury. 5.0 STRICT LIABILITY

Strict liability in Indiana extends to situations in which the damage or injury is proximately caused by an "ultra-hazardous" or "inherently dangerous" activity." Although an inherently dangerous activity has never been precisely defined, it has been described as an activity in which the danger is "contained in or is an inherent part of the constitution of the instrumentality or condition itself, at all times, in such a manner as to require special precautions to prevent injury, not simply danger arising from mere causal or collateral negligence of

lg~tayton v. Funkhouser, 148 Ind. App. 75, 263 N.E.2d 764, 767 (1970). 20~ee,e.g., Johns v. New York Blower Co., 442 N.E.2d 382 (Ind. Ct.'App. 1982)(working on 30-foot high steel beam not inherently dangerous because risk could have been eliminated through simple safety precautions); Cummings v. Hoosier Marine Propehes, Inc., 173 Ind. App. 372, 363 N.E.2d 1266 (1977) (excavation of sewer trenches not inherently dangerous because such work, if done properly, is relatively safe).

INDIANA ENVIRONMENTAL LAW HANDBOOK others. "21 Therefore, if the activity can be made safe through the exercise of some reasonable precaution, the courts will not find the activity to be inherently dangerous.22 The only inherently dangerous activity recognized by Indiana courts is blasting.23 Based on recent case law, Indiana does not appear inclined to expand this definition to include manufacturing and disposal activities involving toxic substances since those activities can, at least in theory, be performed safely.% 6.0 FRAUD AND MISREPRESENTATION Under Indiana law, fraud may be either actual or constructive. The elements of actual fraud are material misrepresentations of past or existing facts "which representations are false, made with knowledge or reckless ignorance of this falsity, which cause a reliance upon these representations to the detriment of the person so relying. "25 A showing of constructive fraud, on the other hand, does not require that there be an intent to deceive.26 Instead, with constructive fraud "the law infers fraud from the relationship of the parties and the circumstances which surround them. "n In an environmental context, an action for fraud is most likely to arise in instances where the contaminated condition of real estate is concealed from the buyer of the property. While fraud may be based on a misrepresentation of past or existing

Indiana does not

recognize the tort of negligent misrepre~entation.~~ Therefore, the seller of the real estate "must have known that the statement made is false or must willfully conceal a material fact which he or she is under a duty to disclose."30

21~taytonv. Funkhouser, 148 Ind. App. 75, 263 N.E.2d 764, 767 (1970). =~albreathv. Engineering Construction Corp., 149 Ind. App. 347,273 N.E.2d 121 (1971).

Wills, 509 N.E.2d 850 (Ind. App.

1987). %Erbich Products Co., 409 N.E.2d at 856-57 (manufacture of chlorine gas is not ultra-hazardous). 23~rbich Products Co. v.

2S~laisingv. Mills, 176 Ind. App. 141, 374 N.E.2d 1166, 1169 (1978). 26~d.

"Sanders v. Townsend, 509 N.E.2d 860, 865 (Ind. Ct. App. 1987). 28~laising,374 N.E.2d at 1169. 2 9 ~ i l s o nv. Palmer, 452 N.E.2d 426 (Ind. Ct. App. 1983). 3 0 ~ r o w nv. Indiana Nat? Bank, 476 N.E.2d 888 (Ind. Ct. App. 1985).

INDIANA ENVIRONMENTAL TORT LAW

In addition to the seller's actions, the buyer must rely upon the seller's representations3' and must have a right to so rely.32 In the real estate context, no right to rely on the seller's representations is created where the buyer has the opportunity to examine the property inde~endently~~ unless the problem is concealed from the buyer or only partially disclosed, thus creating a false impre~sion.~~ Therefore, where the buyer has the chance to conduct an environmental assessment and does not do so, it will most likely be held that no action for fraud or misrepresentation can be maintained against the seller should a problem, which was not revealed to the buyer prior to closing, later arise. 7.0 DAMAGES

Success in a tort action in Indiana entitles the plaintiff to recover compensatory damages for his or her injuries which flow proximately from the act of the defendant or which are the natural and proximate results of the defendant's acts.35 If the injury is to real property, the proper measure of damages, at least where injury is permanent, is the difference between the market value before and after the injury.36 If the injury is not permanent, the cost of repair or restoration is the proper measure.37 Exemplary, or punitive, damages may also be recovered. Before the court can properly award punitive damages in Indiana some element of "malice, fraud, oppression, gross negligence or willful and wanton misconduct on the part of the defendant" must be shown.38 In the proper circumstances, punitive damages may be awarded in contract actions as well as tort.39

31~raig v. ERA Mark Five Realtors, 509 N.E.2d 1144 (Ind. Ct. App. 1987).

32~oft Water Utilities, Inc. v. Le Fevre, 159 Ind. App. 533, 308 N.E.2d 33~ompson v. Best, 478 N.E.2d 79 (Ind. Ct. App. 1985).

395 (1974).

582, 293 N.E.2d 812 (1973). Tepe, 177 Ind. App. 384, 379 N.E.2d

35~odinelli v. Bowden, 155 Ind. App.

36~uxuriousSwi-ng

Pools Inc. v.

992 (1978).

37~d.

38~effersonville Silgas, Inc. v. Wilson, 154 Ind. App. 398, 290 N.E.2d 113 (1972). 3 9 W ~OChevrolet ~~ v. Robertson, 519 N.E.2d 135 (Ind. 1988).