A series of recent New York Times pieces have sounded the alarm about PFAS chemicals in biosolids on agricultural ground. First, there was the article on August 31, 2024 entitled “Something’s Poisoning America’s Land. Farmers Fear ‘Forever’ Chemicals.” Two articles on September 21, 2024 later heightened the level of concern: “Her Children Were Sick. Was It ‘Forever Chemicals’ on the Family Farm?” and “What We Know (and Don’t Know) About ‘Forever Chemicals’ in Food.”

On March 13, 2024, Gov. Eric Holcomb signed and passed House Bill 1003 (HB1003), authored by Rep. Gregory Steuerwald (R-Avon). HB1003 eliminates the Office of Environmental Adjudication (OEA) and transfers administrative law proceedings to the Office of Administrative Law Proceedings (OALP), making OALP the “ultimate authority” for administrative proceedings under its jurisdiction. However, OALP is not the “ultimate authority,” as amended in Indiana Code 4-15-10.5-12(c), if: (1) a particular agency or agency action is exempted under Indiana law; or (2) an agency is required by federal mandate, as a condition of federal funding, to conduct or render a final order in an adjudication. This means that OALP will now make decisions involving administrative appeals from actions taken by the Indiana Department of Environmental Management (IDEM). Consolidation of OEA into OALP was made to streamline government resources for more efficient administrative proceedings.

Indiana’s Environmental Legal Action (“ELA”) statute creates potential liability for those who “caused or contributed” to the release “of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment.” Ind. Code § 13-30-9-2. They can be sued by a person seeking “to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.” Id. Among the litigated issues under the ELA are (1) what are “reasonable costs of a removal or remedial action,” and (2) when must these “costs” be incurred to have a valid ELA claim? In Alvey v. General Electric Co., 2023 WL 8372044 (S.D. Ind. Oct. 30, 2023), the Southern District of Indiana answered both of these questions.

SUMMARY: The Indianapolis Bar Association (“IndyBar”) has learned of recent public statements attacking the Marion County criminal justice system generally, and the Honorable Mark D. Stoner specifically. These statements come in the wake of Judge Stoner’s sentencing of Elliahs Dorsey (“Dorsey”), the individual charged in the April 2020 shooting death of Indianapolis Metropolitan Police Department (“IMPD”) Officer Breann Leath. Officer Leath was tragically shot to death after responding to a call regarding a disturbance between a male and a female. After hours of deliberation, Dorsey’s jury acquitted him of Murder. The jury found Dorsey Guilty but Mentally Ill of lesser included offenses. After Dorsey’s sentence was pronounced, some made statements that either implied or outright erroneously stated that Judge Stoner inappropriately sentenced Dorsey to far less than the maximum sentence in the killing of Officer Leath. Some made remarks in the local media that dangerous offenders can shoot anyone and simply say they have a mental health problem, and they will receive a “sweetheart” sentence. This rhetoric is dangerous, and it is false.

For the killing of Officer Leath, the Court was limited to only a six-year sentence based on what the jury found Dorsey guilty of. When judges sentence offenders convicted of crimes, they are limited by the statutory sentencing guidelines for the crime. When deciding on an appropriate sentence, judges are required to start in the middle of that range and then consider specific statutory factors, called mitigating and aggravating factors, when deciding whether to impose a harsher sentence or a lighter sentence. The sentence Judge Stoner imposed on Dorsey for the count of Reckless Homicide was nine months shy of the maximum sentence allowed under the law. There is no statutory aggravator to enable judges to impose a harsher sentence on Reckless Homicide when the victim is a police officer who is killed in the line of duty. Dorsey’s total sentence for the crimes he committed in April 2020 was 45 years and 118 days, 30 years of which is to be executed in prison followed by 15 years of probation where the Court will monitor Dorsey’s behavior and mental health condition. Should Dorsey not abide by the conditions of his mental health probation, he could be sent back to prison to serve the remainder of his 15-year term of probation.

It is understandable that officers and citizens are aggrieved by the fact that the shooter was not sentenced to a much longer period of incarceration. However, misrepresenting the facts and the law to cast blame on a specific judge and the courts at large is misplaced. If reckless homicide of a police officer should carry with it a harsher sentence than the maximum of six years it currently carries, we have a responsibility to inform our legislators on this issue and to advocate for changes to the law. Only in uniting to better protect our community at large are we able to affect positive change. 

With all of the expectations lawyers face (especially early in their careers), it can be hard to carve out time away from learning to practice the law and break away from the billable hour to identify leadership opportunities where legal skills can provide a meaningful benefit for the Indianapolis community. The IndyBar Bar Leader Series program provides the perfect solution. 

On February 12, 2024, Indiana Governor Eric Holcomb signed the first piece of legislation to hit his desk in the 2024 legislative session into law. The bill, House Enrolled Act 1383 (“HEA 1383”), makes changes to Indiana’s Isolated Wetlands Program by reclassifying certain protected wetlands to a less regulated class, among other changes. HEA 1383 quickly moved through the legislative process having passed the Indiana House (64-30) on January 23, 2024 and the Indiana Senate (32-17) on February 6, 2024. The new law goes into effect on July 1, 2024.

On December 6, 2023, the U.S. Environmental Protection Agency (EPA) published its proposed Lead and Copper Rule Improvements (the “Improvements”) (EPA-HQ-OW-2022-0801). The Improvements seek to reduce lead and copper exposure in drinking water for adults and children. The proposed rule revises the National Primary Drinking Water Regulation for these two elements under the Safe Drinking Water Act. The Improvements further simplify and build on the EPA’s 2021 Lead and Copper Rule Revisions and the original 1991 Lead and Copper Rule. 

Judge Mary Davidsen, longtime Director and Chief Environmental Law Judge of the Indiana Office of Environmental Adjudication, has announced that she plans to retire at the end of the year.  She began at OEA in 2003.

Effective November 13, 2023, EPA is updating its regulations under the Freedom of Information Act (FOIA) at 40 CFR part 2. These changes are considered Phase II of EPA’s FOIA modernization efforts. Importantly, EPA did not change any of the methods of submission of FIOA requests. EPA will continue to accept FOIA requests through its website and by mail. Below is a summary of changes to be aware of.

On September 27, 2023, the EPA published the "Clean Water Act Section 401 Water Quality Certification Improvement Rule" in the Federal Register. Since Congress passed the Clean Water Act in 1971, this rule represents only the second time the EPA has updated the water quality certification (WQC) regulations. The first rule to update WQC regulations, the "2020 rule," narrowed the scope of review and authority of states and tribes in the Section 401 certification process. The new WQC improvement rule restores and expands the authority of states and tribes and more clearly describes the requirements for beginning the certification process.