Sierran Masthead

Indiana Survives Its Legislature Again

By Bill Hayden, Uplands Group

It's always a relief when the Indiana General Assembly finally goes home and this year was no exception. The session started out with the usual wish list of ridiculous anti-environmental bills. Fortunately most of them died pretty early deaths, but not all of them. Most of the bills that passed are mixed bags: some good and some bad. They were hard to oppose entirely but hard to support also.

The General Assembly still appears to be interested in pleasing its masters: the Indiana Chamber of Commerce, the Indiana Manufacturers Association and the Indiana Farm Bureau. It doesn't take long to see that most bills dealing with the environment are meant to please those who don't want to protect the environment, but to make things easier for these powerful economic interests. Most of the pressure on legislators is to reduce regulation and enforcement. This is the basic strategy for eliminating and reducing environmental protection. There are various tactics being proposed to accomplish the goal of reducing environmental protection. Some of the bills are hamhanded and obvious and they are the easiest to kill, but most bills just chip away at existing statutes, agency regulations and policies, and citizens rights; it is much harder to convince legislators that these bills are bad.

Water Quality Standards
Drainage and Wetlands
Floodway Construction
Contaminated Site Cleanups
Rail Trails
Lake Monroe Watershed Basin Commission
Low Level Radioactive Waste
Summer Study Committees
Conclusion

Water Quality Standards

SB 174 was a bill that would have thrown out Indiana's Water Quality standards. It was authored by Sen. Patricia Miller (R, Indianapolis), the Chairperson of the Senate Health and Environment Committee for Mayor Goldsmith of Indianapolis and the Indiana Association of Cities and Towns. It passed the Health and Environment Committee but was challenged on 3rd Reading by Sen. Vi Simpson (D, Elletsville) and defeated on the floor of the Senate 24-26. The bill resulted from an Indianapolis Water Company fish kill in the West Fork of White River. The fish kill was caused by a combined sewer overflow. These occur because raw sewage is mixed with storm water runoff and then dumped directly into rivers and streams without any treatment. The dilution reduces the toxicity of the runoff, but under certain conditions, that is not sufficient to prevent fish kills. It is going to be expensive to address combined sewer overflows and the Mayor of Indianapolis and the Indiana Association of Cities and Towns want to avoid those expenses. Rep. Sue Scholer (R, Lafayette) filed a 2nd Reading amendment that would have inserted SB 174 language into SB 450 (see below), but thanks to some intense lobbying she did not call it down for a vote. This was a significant and unusual defeat for the Mayor of Indianapolis.

SB 174 would have severely weakened Indiana's water quality standards. The bill was also supported by the Chamber and Manufacturers. They argue that most of the pollution in Indiana's waters is caused by non point sources such as soil erosion from farm fields. But rather than help control those sources, they would rather weaken Indiana's water quality standards for industry. Fortunately, this time they were stopped.

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Drainage and Wetlands

HB 1198 was the worst bill on drainage and wetlands. Introduced by Rep. Jim Davis (R, Frankfort), it was a reintroduction of a bill introduced by Sen. Potch Wheeler (R, Larwill) in 1995. Wheeler negotiated a compromise in 1995 that didn't satisfy Rep. Davis. The bill would have eliminated Indiana Department of Natural Resources' regulation of drain maintenance projects and would have eliminated the Indiana Department of Environmental Management's ability to determine if wetlands drainage and fill projects would cause a reduction in water quality. It did not get out of committee but was amended to SB 62 on 2nd Reading in the House. It passed the House of Representatives but was killed in the Senate. Even the Indiana Farm Bureau didn't support it since they had agreed to the 1995 compromise with the DNR.

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Floodway Construction

HB 1210 by Rep. James Bottorff (D, Jeffersonville) would have allowed reconstruction of damaged structures in floodways. Fortunately, Rep. Richard Mangus (R, Lakeville), the Chair, did not allow a vote in committee and it died. It provided that the law requiring public notice and a 30 day delay before the issuance of a permit does not apply to an application for a permit for the reconstruction of an abode or a residence that is located in a floodway that was substantially damaged through an unforeseen emergency event such as a fire or a tornado. It also eliminated the need for a permit for the reconstruction of a residential or nonresidential structure that is located in a floodway or flood plain that was damaged by floodwater or any other means if the structure, as reconstructed, will be in substantially the same form as and no larger than the structure as it was before it was damaged.

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Contaminated Site Cleanups

Senators Beverly Gard (R, Greenfield) and Vi Simpson (D, Elletsville) authored SB 450, a bill that would expedite the voluntary remediation of contaminated areas. It was not focused on abandoned sites, but on those sites that responsible parties still owned. It provided for the use of state money as loans and grants to provide incentives to the responsible parties to clean up their contamination. It also contained a provision that allowed persons who cleaned up a site to sue former owners who contaminated the site. This provision was extremely controversial among industries. PSI has sold and otherwise divested itself of over a dozen contaminated sites for fear of liability. Glen Pratt, an environmental consultant in Indianapolis termed SB 450 a lawyers' and consultants' full employment act. The bill would have tightened up the present provision of the Voluntary Remediation law that allows parties that do a remediation to avoid 3rd party legal suits but it did not eliminate it. The bill stayed weak on public participation although an advisory oversight committee was added in conference report. The Conference Report passed the House but at the urging of PSI, Sen. Gard, the primary author, did not call it for a vote in the Senate and it died. Citizens' Action Committee, Grand Calumet Task Force, Save the Dunes Council, the Izaak Walton League and Sierra Club are planning to develop a Brownfields bill that addresses abandoned sites for introduction in the next session.

Another bill that addressed contaminated cleanups was HB 1266 authored by Rep. Brian Bosma (R, Indianapolis). It allows a county, municipality, or township to enter into a contract related to a site that has or is believed to have environmental contamination; and (2) contains an agreement by the county, municipality, or township to defend or indemnify a party to the contract against any claim, cause of action, demand, cost, judgment, or other loss suffered by the party under the contract. In other words, a municipality, county or township can take on the liability of a site including an abandoned site in order to get a company to come in and use a site that may still have some risk associated with it. This bill was supported by Indiana Cities and Towns. It contains the potential for getting small municipalities and townships into real financial trouble. If they take the liability for a site and then get stuck with a big legal settlement, they could easily go bankrupt.

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Rail Trails

Senators Dick Thompson (R, North Salem) and David Ford (R, Hartford City) authored SB 207 on Rail Trail Fencing. It was supported by Farm Bureau and Farmers Union. Many groups, companies and the Mayor of Crawfordsville spoke against it. It provided that a property owner adjacent to a recreational trail has a cause of action to enforce a duty of the responsible party or a governmental entity under the recreational trail law. It provided that certain governmental entities may adopt ordinances to regulate the use of a railroad right-of-way that is not used for rail traffic. It also provided that a property owner adjacent to such a right-of-way may require a person in possession of the right-of-way to build fences between the right-of-way and the property owners property and that a property owner has a cause of action against a person in possession of the right-of-way for failure to build fences. Sen. Thompson decided to hold this bill after the hearing and then never brought it back for consideration.

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Lake Monroe Watershed Basin Commission

Rep. Jerry Bales (R, Bloomington) amended SB 18, authored by Sen. Robert Meeks (R, Lagrange), on 2nd Reading in the House to establish a Watershed Basin Commission for the Lake Monroe watershed. It passed 3rd reading in the House 96-3 but Sen. Meeks has filed a dissent on the bill and Sen. Bob Garton, (R, Columbus) had the amendment declared non germane. The bill went to conference and the amendment was stripped. The bill was adamantly opposed by a rabid pro-development group in Bloomington called Positive Progress. They erroneously claimed that it would open the way to the taking of private property rights. The claim was patently ridiculous because the bill gave the commission no authority to regulate, zone or take private property. Sen. Simpson has given assurances that she will introduce the bill next session.

County commissioners in the drainage basin of Lake Monroe would have the option of becoming participating counties on the Commission. The Commission would have no regulatory authority, but would be able to make recommendations to the basin counties and receive appropriations from the participating counties and grants from the state and federal governments and fund projects to protect and improve the water quality in the drainage basin of the lake.

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Low Level Radioactive Waste

Sen. Beverly Gard also authored SB 183 on the Low Level Radioactive Waste Compact which passed the House 95-2. It was returned without amendments to the Senate. The bill was drafted by the Compacts staff and several other states have already adopted it. It makes numerous changes to the law concerning the Midwest interstate low-level radioactive waste compact. The Compact itself is a deal that allows Indiana to put off siting a radioactive waste site in return for a lot more radioactive waste in the future. This is because Indiana does not have any nuclear power plants and the other states in the compact do. Practically everything except the fuel in a nuclear power plant is considered low level nuclear waste; this includes the fuel control rods. The bill passed without any serious critical analysis by the legislators.

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Summer Study Committees

The Water Resources Study Committee will be meeting this summer and will be looking at the Floodway Protection Act. It held lengthy hearings on it last summer but was unable to come up with any solutions to the perceived problems. It will be interesting to see if the legislators want to continue to push this issue since the floods this spring have been the highest in about 30 years. It will also be a little difficult to get the committee to think about water shortage legislation, but it isn't inconceivable that we will have a drought by August.

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Conclusion

The General Assembly is very careful to avoid making the Indiana Manufacturers Association, the Farm Bureau, and the Chamber of Commerce unhappy. These are the folks that provide the money for elections. Other groups are expected to subordinate their issues to these groups. This situation will not change until the election campaign laws are reformed in such a way that legislators are much less dependent on big money from special interests. Common Cause and the Citizens Action Coalition have been working on this issue.

It is essential that legislators hear from their constituents about environmental protection. Every environmentalist should make it a point to get to know his or her legislators personally. This is not something that should wait for the General Assembly to begin. Do it as soon as the occasion presents itself. Good legislators look for opportunities to meet their constituents and must take advantage of these opportunities. It is essential that legislators know that they have constituents that are concerned about the environment since many of them have never had a constituent raise an environmental issue with them.

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Copyright © 2007 Hoosier Chapter Sierra Club, all rights reserved.[6/28/02]efp

Summer 1996