By Donald M. Snemis, Ice Miller LLP
While the 2018 legislative session generated no signature legislation in the environmental arena, a few bills contained noteworthy changes. In two posts this month, I will cover the highlights of this year’s legislative changes that might affect environmental practitioners. In Part 1, I discuss changes to IC 13-30-10 et seq. related to criminal violations of Indiana’s environmental statutes. In Part 2 later this month, I will cover other changes to Indiana’s environmental laws from the 2018 legislative session.
IDEM’s Annual Omnibus bill, HEA 1233, expanded criminal liability and changed the criminal penalties associated with violations of Indiana’s environmental management statutes related to recordkeeping, air pollution control violations, water pollution control violations, and violations related to hazardous waste management. Each is discussed separately below.
IC 13-30-10 previously provided that any person who knowingly and intentionally “destroys, alters, conceals, or falsely certifies” a record required to be maintained under the terms of an air permit or a water pollution control permit commits a Class B misdemeanor. The new law expands criminal liability to anyone who “withholds” a “record, report, plan or other document,” which raises the possibility that merely withholding a required document from IDEM could be grounds for criminal prosecution. Also, the new law states that anyone who “makes a false material statement, representation, or certification in any form, notice or report” required under an air or water pollution control permit commits a Class B misdemeanor.
Previous versions of IC 13-30-10 provided that violations of the Indiana Code related to air pollution control constituted Class C misdemeanors. HEA 1233 expands criminal liability to violations of rules promulgated by the Environmental Rules Board. Additionally, the new statute now makes it clear that a person who “knowingly” fails to file an application for an air permit commits a Class C misdemeanor. However, all references to Level 5 felonies (such as when the violation results in damage to the environment) have been repealed.
The previous version of IC 13-30-10-1.5 provided that anyone who “willfully or recklessly” violated Indiana’s water pollution control laws committed a Class A misdemeanor. HEA 1233 made several changes. First, the new law changed the “willfully or recklessly” standard to a “willfully or negligently” standard. “Negligently” is defined as follows:
For purposes of IC 13-30-10-1.5, a person acts "negligently" when:
(1) the person acts with a conscious and voluntary disregard for a standard of care that a reasonable person would exercise in the same circumstance;
(2) the consequence of the person's action is likely to cause foreseeable injury to human health or the environment; and
(3) the risk of the person's action causing foreseeable injury to human health or the environment is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in a similar circumstance.
In addition, whereas the previous statute required a violation of the Indiana Code or of the provisions of an NPDES permit before criminal liability attached, HEA 1233 provides that criminal liability can be based on the violation of rules promulgated by the Environmental Rules Board.
Hazardous Waste Violations
HEA 1233 also expanded criminal liability related to hazardous waste permitting, transportation, treatment, storage, disposal, and recycling. Under the new law, the definition of a Class B misdemeanor was expanded to anyone who knowingly and intentionally “makes a false material statement or representation in any label, manifest, record, report, or other document that is required to be maintained or filed.”
HEA 1233 increased most of the fines associated with criminal violations of Indiana’s environmental laws. In the past, misdemeanor fines for environmental violations were set at the same level as other misdemeanors under Indiana’s criminal statutes, as found in IC 35-50-3. HEA 1233 increased fines for most criminal violations of environmental laws and changed the phrasing of the law that establishes minimum and maximum fines.
The new misdemeanor fine amounts are listed in Table 1 below. With two exceptions, the fines were increased dramatically. These fines are in addition to possible prison time.
In addition to the amounts of the fines, the new law may dramatically change the minimum and maximum fine levels. For instance, IC 35-50-3 provides that the fine for a Class B misdemeanor is “not more than one thousand dollars ($1,000).” That phrase is simple and straightforward and gives judges significant discretion in imposing fines.
However, the new statute uses entirely different language. So, for instance, IC 13-30-10-1(d)(1) states that a criminal violation of records requirements for air pollution control laws is now “a maximum amount of not less than ten thousand dollars ($10,000) per day per violation.” The intent of this change is unknown. $10,000 is clearly the maximum fine under the new statute, but the new phrasing raises some new questions. Does the phrase “not less than” establish $10,000 as the minimum fine? Will the addition of the phrase “per day per violation” open up the possibility of larger fines? Courts will likely need to resolve those issues.
Finally, HEA 1233 provides that if a person commits any environmental crime relating to water pollution control knowingly and knows that the act places another person in imminent danger of death or serious bodily injury, the crime is a Level 2, 3, or 4 felony depending upon whether a person is actually injured or killed.
Table 1 - Revised Fines Under HEA1233
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