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Bill Watch, Jan. 15, 2021: Current Environmental Law Legislation of Note - Environmental Law News

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Environmental Law News


Posted on: Jan 20, 2021

The IndyBar Legislative Committee is currently monitoring the following environmental law-related legislation. IndyBar members can request that the Legislative Committee track specific legislation by contacting committee chair Mindy Westrick at mwestrick@indianaenergy.org.

Click here to view the full Bill Watch reports.

HB1014    HAZARDOUS MATERIALS FACILITIES NEAR WATERWAYS (JACKSON C) Requires the department of environmental management (department) to make quarterly inspections of a facility if: (1) one or more hazardous materials are present in the facility in more than a minimal quantity on at least 30 days per year; and (2) because of the physical proximity of the facility to a surface body of water, there is a substantial risk that a hazardous material accidentally released from the facility will enter the surface body of water. Provides that an inspection of a facility must determine whether the hazardous materials present in the facility are being stored and handled safely and whether reasonable steps are being taken to prevent releases of hazardous materials from the facility. Authorizes the department to delegate its investigation responsibility to an agency or department of a city, town, or county under certain circumstances. Requires the environmental rules board to adopt: (1) rules concerning the identification of facilities to which the inspection requirement applies; and (2) rules establishing requirements for the safe handling and storage of hazardous materials in facilities, the prevention of releases of hazardous materials from facilities into surface bodies of water, and the performance of quarterly inspections of facilities.

HB1038    SEPTIC SYSTEM INSPECTION BEFORE PROPERTY TRANSFER (AYLESWORTH M) Provides that, beginning July 1, 2022, before a fee simple interest in a dwelling connected to a residential onsite sewage system, a nondwelling structure connected to a commercial onsite sewage system, or a lot or tract of land containing a water well in addition to a residential or commercial onsite sewage system may be transferred: (1) the residential or commercial onsite sewage system must be inspected by a qualified inspector and (if applicable) water from the water well must be tested by a qualified tester; (2) a document certifying that the inspection or testing has been conducted and setting forth the results of the inspection or testing must be provided to the local health department, the county recorder, and the person to whom the fee simple interest is being transferred; and (3) any cause of failure of the residential or commercial onsite sewage system must be eliminated before the county recorder may record a deed transferring a fee simple interest in the property. Provides exceptions. Provides that the failure of the owner of the dwelling, nondwelling structure, or lot or tract of land on which a water well is located to provide the document to the transferee or prospective transferee: (1) is a complete defense to an action brought by the owner against the prospective transferee for breach of a contract to purchase the property; and (2) is a breach of a legal duty owed to the transferee for which the transferee may bring a civil action against the owner for compensatory damages. Provides that if an inspection indicates that a dwelling's residential onsite sewage system exhibits any conditions constituting failure, or the testing of water from the water well indicates a reportable presence of arsenic, nitrate, lead, or coliform bacteria: (1) the owner of the dwelling shall state the results of the inspection or testing in the disclosure form that the owner is required to prepare before an offer for the sale of the dwelling is accepted; and (2) the failure of the seller to state this information in the disclosure form makes the sale of the dwelling voidable at the election of the buyer, even after the closing. Requires the state department of health to adopt rules establishing: (1) requirements and standards for inspections and testing; (2) qualifications for inspectors and testers; and (3) requirements and standards for the training and certification of inspectors and testers.

HB1045    PRESCHOOL AND CHILD CARE FACILITY DRINKING WATER (JACKSON C) Requires the person or entity having authority over a child care facility or preschool to test the drinking water in the child care facility or preschool before January 1, 2024, to determine whether lead is present in the drinking water in a concentration equal to or exceeding 15 parts per billion. Excepts a child care facility or preschool from this testing requirement if its drinking water: (1) was or will be tested through the Lead Sampling Program for Schools and Child Care Facilities conducted by the Indiana finance authority in 2019 and 2020; or (2) has otherwise been tested for lead at least once after 2017. Provides that, if testing indicates that lead in the drinking water of a child care facility or preschool equals or exceeds 15 parts per billion, the person or entity having authority over the child care facility or preschool is required to take action to reduce the concentration of lead to below 15 parts per billion.

HB1087    LEAD FREE PLUMBING PRODUCTS IN SCHOOL BUILDINGS (HARRIS JR. E) Requires the governing body of a school corporation to ensure that every plumbing product: (1) acquired for installation in; (2) installed as part of; or (3) used in repairing or installing; the potable water system of a school building is lead free, according to the definition in the federal Safe Drinking Water Act regulations.

HB1129    PFAS IN PUBLIC WATER SYSTEMS (DVORAK R) Requires the state department of health (state department) to establish state maximum contaminant levels for PFAS in water provided by public water systems. Provides that maximum contaminant levels established by the state department: (1) must be protective of public health, including the health of vulnerable subpopulations; and (2) may not be less stringent than any maximum contaminant level or health advisory promulgated by the United States Environmental Protection Agency.

HB1151    NOTICE OF ENVIRONMENTAL CONTAMINATION (BOY P) Requires a person who causes a spill of certain substances into waters of the state to report the spill immediately to the following: (1) The department of environmental management (department). (2) The county health officer of each county that may be affected by the spill. (3) A water user within five miles upstream and 25 miles downstream of where the spill occurred. (4) At least one emergency response agency. (5) Each park located in the county in which the spill occurred. Requires the department, the county health officer, the water user, the emergency response agency, and each park (entity) to: (1) post the information received about the spill on each entity's Internet web site; and (2) in a manner determined by each entity, make the information received about the spill available to the public. Provides that a county health officer who receives a report of a spill must notify: (1) each park located within five miles upstream and 25 miles downstream of where the spill occurred; and (2) news media in each county that may be affected by the spill. Provides that a person who fails to make the required report is liable for a civil penalty determined by the board. Provides that a person who knowingly or intentionally fails to make the report required by this act commits a Class A misdemeanor. Specifies that a person commits a Level 6 felony if the person has a prior unrelated conviction for a violation of the reporting requirements. Provides that money collected for a civil violation of the reporting requirements shall be deposited into the environmental management special fund. Adds definitions of "water user", "objectionable substance", "park", and 
"spill". Makes conforming changes.

HB1162    FERTILIZER RUNOFF AND LAKE MICHIGAN DISCHARGES (DVORAK R) Amends the water pollution control law effective July 1, 2023, to: (1) eliminate an exception to the prohibition against causing water pollution that applies to fertilizer runoff from a field in a storm event or irrigation return flow if the fertilizer was applied to the land in compliance with rules of the state chemist; (2) eliminate a provision requiring the commissioner of the department of environmental management (commissioner) to allow for a mixing zone in a permit that involves a discharge into Lake Michigan if the permit applicant can demonstrate that the mixing zone will not cause harm to human health or aquatic life; and (3) eliminate a provision under which the commissioner, in issuing a permit authorizing a discharge into a mixing zone in Lake Michigan, is required to allow for mixing initiated by the use of submerged, high rate diffuser outfall structures (or their equivalent) that provide turbulent initial mixing and minimize organism exposure times.

HB1380    ENVIRONMENTAL NUISANCE ACTIONS (MORRISON A) Specifies that a civil action brought for monetary or injunctive relief due to the discharge of a contaminant in substantial compliance with a permit issued by the United States Environmental Protection Agency (EPA) or the Indiana department of environmental management (IDEM) may be brought only as a nuisance action. Defines "stigma damages" and specifies that in a nuisance action brought in connection with a discharge that substantially complies with an EPA or IDEM permit, the plaintiff: (1) must establish certain damages by clear and convincing evidence; and (2) is not entitled to stigma damages.

HB1394    NET METERING FOR ELECTRICITY GENERATION (COOK A) Amends the statute concerning distributed electricity generation as follows: (1) Defines a "public use customer" of an electricity supplier as a customer that is: (A) a school corporation; or (B) a local unit. (2) Provides that an electricity supplier's net metering tariff must be made and remain available to customers until the earlier of: (A) January 1 of the first calendar year after the calendar year in which the aggregate amount of net metering facility nameplate capacity under the electricity supplier's net metering tariff equals at least 3% (versus 1.5% under current law) of the electricity supplier's most recent summer peak load; or (B) July 1, 2024 (versus July 1, 2022, under current law). (3) Provides that before July 1, 2021, an electricity supplier shall amend its net metering tariff, or file a new net metering tariff with the utility regulatory commission (IURC), to do the following: (A) Establish as the allowed limit on the aggregate amount of net metering facility nameplate capacity under the tariff an amount equal to at least three percent (3%) of the electricity supplier's most recent summer peak load. (B) Allow a public use customer that: (i) operates a net metering facility on a premises that the public use customer owns or controls before the installation of the net metering facility; and (ii) is billed by the electricity supplier for electricity measured at more than one meter; to choose to be billed or credited for the difference between the kilowatt hours delivered by the electricity supplier as measured by any one or more of those meters, not to exceed three, and the kilowatt hours generated and delivered to the electricity supplier by the net metering facility. (4) Provides that before July 1, 2021, the IURC shall make similar amendments to its net metering rules. (5) Specifies that any repairs, updates, or upgrades to portions of a net metering facility that do not increase the nameplate capacity of the net metering facility are not considered a replacement of the net metering facility for purposes of certain provisions providing for the extended availability of an electricity supplier's net metering tariff for customers that install a net metering facility before certain specified deadlines. (6) Specifies that net metering customers must comply with certain safety, performance, and reliability standards with which customers that produce distributed generation must comply. (7) Specifies that a net metering customer has certain rights regarding the installation and ownership of a net metering facility that a customer that produces distributed generation has with respect to the installation and ownership of distributed generation equipment. (8) Adds a noncode provision staying the implementation of a rate for the procurement of excess distributed generation for which an electricity supplier has applied or received approval from the IURC under current law, until such time as the conditions for the expiration of the electricity supplier's net metering tariff, as set forth in the bill, apply to the electricity supplier.

SB227    ENFORCEMENT OF PESTICIDE VIOLATIONS (LEISING J) Provides a list of violations for which the state chemist may impose a civil penalty. Eliminates the schedule of civil penalties as adopted by the Indiana pesticide review board. (Under current law, the state chemist imposes a civil penalty in accordance with a schedule of civil penalties as adopted by the Indiana pesticide review board.) Provides that the state chemist may adjust a civil penalty by 20% for certain violations if a person responsible for the violation takes mitigating actions.

SB373    CARBON CREDIT PROGRAMS (GLICK S) Amends the law concerning the President Benjamin Harrison conservation trust program to give the program additional powers relating to the reduction of carbon footprints. Authorizes the program to: (1) receive money from persons wishing to invest in actions that will result in carbon sequestration; (2) deposit the money in an account called the INpact forest carbon account; (3) use money in the account to purchase property that will generate carbon offsets and make grants to land trusts or other entities that will purchase property to generate carbon offsets; and (4) sell or facilitate the sale of carbon offsets. Provides that money in the INpact forest carbon account may be used to pay all costs and expenses associated with the new program functions. Amends the law concerning the clean water Indiana program to create a new account called the INpact farmland carbon account and to give the lieutenant governor powers relating to the reduction of carbon footprints. Authorizes the lieutenant governor to: (1) receive money from persons wishing to invest in actions that will result in carbon sequestration; (2) deposit the money in the INpact farmland carbon account; (3) use money in the account to compensate farmers for carbon farming practices, purchase property interests that will generate carbon offsets, and make grants to land trusts or other not-for-profit entities that will purchase property interests to generate carbon offsets; and (4) sell or facilitate the sale of carbon offsets. Provides that money in the INpact farmland carbon account may be used to pay all costs and expenses associated with the new program functions. Requires the lieutenant governor to establish a program under which persons who satisfy certain requirements may register as technical advisers or verifiers. Defines "technical adviser" as a person who provides technical assistance to farmers and private forest landowners in carrying out climate-friendly farming and forestry practices and "verifier" as a person who verifies the use of climate-friendly farming and forestry practices and the generation of credits through those practices for purposes of greenhouse gas credit markets. Requires a person who registers as a technical adviser or verifier to pay a registration fee to defray the expenses of operating the program. Requires the lieutenant governor to adopt rules establishing standards for the program. Establishes an advisory council to advise the lieutenant governor on the standards for the program. Requires the lieutenant governor to publish a list of persons registered as technical advisers or verifiers under the program on the Internet.

SB389    REPEALS STATE REGULATED WETLANDS LAW (GARTEN C) Repeals the law requiring a permit from the department of environmental management for wetland activity in a state regulated wetland. Makes corresponding changes to eliminate references to that law. States that the repeal of that law is not intended to affect: (1) the regulation in Indiana under the federal Clean Water Act of the discharge of dredged or fill material into waters of the United States; or (2) the authorization of the state of Indiana to administer the National Pollutant Discharge Elimination System permit program.

SB401    CONSERVANCY DISTRICTS PROVIDING SEWER SERVICE (GARTEN C) Provides that a tract of land may be removed from a conservancy district if: (1) the conservancy district was established for sewage collection purposes; (2) the tract of land is located partly or completely within the boundaries of the conservancy district; (3) no structure on the tract of land is served by the conservancy district's sewage service; and (4) the tract of land has been annexed by a municipality that will provide sewer service to the tract of land. Specifies that the setting or changing of the rates and charges for sewer service provided by a conservancy district must include a public hearing with notice, the right of property owners to file a written petition objecting to the rates and charges, and a possible hearing and decision by the circuit or superior court on the objectors' petition. Requires the board of a conservancy district established for sewage system purposes to discontinue the collection of any special benefits tax after construction of the sewage system is completed and becomes operational. Provides that if: (1) a conservancy district is established for sewage system purposes; (2) a tract of land is located partly inside and partly outside the boundaries of the conservancy district; and (3) no structure on the tract of land is connected to the conservancy district's sewage service; the tract of land and all improvements located on the tract of land are exempt from the special benefits tax that may be imposed by the conservancy district.

SB419    SEPTIC SYSTEMS, WELLS, AND REGULATED DRAINS (YODER S) Provides that a fee simple interest in: (1) a dwelling connected to a residential onsite sewage system; (2) a nondwelling structure connected to a commercial onsite sewage system; or (3) a tract of land containing a water well in addition to a residential or commercial onsite sewage system; cannot be transferred unless the onsite sewage system is inspected by a qualified inspector and water from the water well is tested by a qualified tester, the test results are provided to the local health department, the county recorder, and the person to whom the fee simple interest is being transferred, and any cause of failure of the onsite sewage system is eliminated. Provides exceptions. Requires the state department of health to adopt rules establishing requirements and standards for inspections and testing, qualifications for inspectors and testers, and requirements and standards for the training and certification of inspectors and testers. Authorizes a county surveyor to classify a regulated drain as a drain in need of reconstruction or a drain in need of periodic maintenance based upon the interests of public health, the reduction of undesirable environmental effects, or flood reduction benefits. Provides that the maintenance fund established for a regulated drain or combination of regulated drains may be used to: (1) better serve the interests of public health; (2) reduce undesirable environmental effects; (3) provide flood reduction benefits; (4) improve drainage control; or (5) provide drainage water storage infrastructure or technology associated with water that flows in or into a particular regulated drain or combination of regulated drains. Authorizes a county surveyor, when determining the best method of reconstructing a regulated drain or the best method of drainage for the area to which a petition to establish a new regulated drain relates, to consider cost effective drainage designs that limit undesirable environmental effects, improve public health, or provide flood reduction benefits.

SB420    DISTRIBUTED GENERATION (YODER S) Provides that a net metering tariff of an electric utility other than a municipally owned utility or a rural electric membership corporation (electricity supplier) must remain available to the electricity supplier's customers until: (1) the aggregate amount of net metering facility nameplate capacity under the tariff equals at least 5% (rather than 1.5% under current law) of the electricity supplier's most recent summer peak load; or (2) July 1, 2027 (rather than July 1, 2022, under current law); whichever occurs earlier. Provides that an electricity supplier may not offer a net metering tariff to the electricity supplier's customers after June 30, 2027 (rather than June 30, 2022, under current law). Provides for net metering tariffs to be phased out by July 1, 2052, and provides that an electricity supplier may not change the terms and conditions of the electricity supplier's net metering tariff during the phase out period. Requires the Indiana utility regulatory commission (IURC) to amend the IURC's rules to allow participation in a net metering tariff by a net metering facility with a nameplate capacity of five megawatts or less. (Under current law, IURC rules allow participation in a net metering tariff by a net metering facility with a nameplate capacity of one megawatt or less.) Allows a customer to apply the output measured at up to five of the customer's electric meters for purposes of determining the difference between: (1) the amount of electricity supplied to the customer by an electricity supplier; and (2) the amount of electricity that is supplied back to the electricity supplier by the customer; for purposes of determining the kilowatt difference for which the customer is billed or credited. Requires the IURC to: (1) engage an independent consultant to conduct a study regarding the value of distributed energy resources to Indiana; (2) conduct a formal investigation and one or more stakeholder meetings regarding the results of the study; and (3) based on the IURC's findings and conclusions, adopt rules not later than December 31, 2023: (A) establishing one or more distributed energy resource tariffs; and (B) requiring an electricity supplier to, not later than January 31, 2024, offer a distributed energy resource tariff to the electricity supplier's existing and new customers. Provides that, notwithstanding the statutory phase out of net metering tariffs, if an electricity supplier offers a net metering tariff to the electricity supplier's customers, the electricity supplier must continue to offer the net metering tariff until the electricity supplier adopts a distributed energy resource tariff. Stays the implementation of a rate for procurement of excess distributed generation for which an electricity supplier has applied for or received approval by the IURC under current law.

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