Summary Of 2004 Environmental Legislation

LAWS AFFECTING THE INDIANA†DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

Extension of 2003 Legislation for†Temporary Prohibition on Rules More†Stringent than Federal Rule

Last year the Legislature passed a noncode†section of law that prohibited through†July 1, 2004, the Indiana Department of†Environmental Management ("IDEM") and†the Air, Water and Waste Boards from†adopting a new rule or policy that would be†more stringent than what is established†in a related federal rule or policy. This prohibition†applies only to rules and policies†affecting the following industries:

Blast furnaces & steel mills

(SIC Code 3312)

Gray & ductile iron foundries

(SIC Code 3321)

Malleable iron foundries

(SIC Code 3322)

Steel investment foundries

(SIC Code 3324)

Steel foundries (SIC Code 3325)

Aluminum foundries

(SIC Code 3365)

Copper Foundries (SIC Code 3366)

Nonferrous Foundries

(SIC Code 3369)

That prohibition was extended this year†until July 1, 2006, with one clarification.†In response to concerns expressed by†IDEM with the prohibition, the law was†clarified to specifically provide that it is†not intended to prevent the adoption by†the Air Pollution Control Board of rules†needed to attain or maintain the primary†or secondary National Ambient Air†Quality Standards.

HEA 1017, SECTION 8, effective March 16,†2004, PL 24-2004.

WATER LAWS

Storm Water Management†

County Department of†Storm Water Management

Due to the Legislature's override of†Governor O'Bannon's veto last year, all†counties now have the same authority†that exists for municipalities and in†Marion County to create a Department†of Storm Water Management. Effective†January 27, 2004, any county that†receives notice from IDEM that it will be†subject to storm water regulation under†the Water Pollution Control Board's†rules at 327 IAC 15-13, may by ordinance†passed by the County Commissioners†create a Department of Storm†Water Management. The Storm Water†Department becomes a special taxing†district, which includes all of the territory†in the County except that located†in a municipality within the County. The†Board of such Department consists of†the County Commissioners and the†County Surveyor. The County Board of†Storm Water Management has the†power to hold hearings, make findings†and determinations, install, maintain†and operate a storm water collection†and disposal system, make all necessary†or desirable improvement of the†grounds and premises under its control†and issue and sell bonds for the acquisition,†construction, alteration, addition†or extension of the storm water collection†and disposal system or for the†refunding of any bonds.

The acquisition, construction, installation,†operation and maintenance of†facilities and land for storm water†systems may be financed through 5†different mechanisms:†

proceeds of special taxing†district bonds;

the assumption of liability†incurred to construct the storm†water system being acquired;

service rates;

revenue bonds; or

any other available funds.

If the Board intends to collect user†fees, it must hold a public hearing and†obtain the approval of the County†Council and the County Commissioners.†If the decision is made to establish†user fees, the Board must assess and†collect user fees from all property of†the storm water district and the amount†of user fees must be the minimum†amount necessary for the operation†and maintenance of the storm water†system. User fee charges can either†be collected through a periodic billing†system or by a charge that appears on†the semi-annual property tax statement†of the property. In deciding on the user†fees, the Board shall use one or more†of the following factors:

a flat charge for each lot,†parcel of property, or building;

the amount of impervious surface†on the property;

the number and size of storm†water outlets on the property;

the amount, strength, or character†of storm water discharged;

the existence of improvements†on the property that address†storm water quality and quantity†issues;

the degree to which storm water†discharged from the property†affects water quality in the storm†water district; and

any other factors the Board†considers necessary.

The Board may adopt different schedules†of fees or make classifications in†schedules of fees based on (1) variation†in the costs, including capital expenditure†of furnishing services to†various classes of users or to various†locations; (2) variations in the number†of users in various locations; and (3)†whether the property is used primarily†for residential, commercial or agricultural†purposes.†

HEA 1798, SECTIONS 2 through 5 and 7-†18, Ind Code ßß8-1.5-3-3, 8.1-1.5-1, 8-1.5-†5-1.5, 8-1.5-5-2, 8-1.5-5-3, 8-1.5-5-4, 8-†1.5-5-4.5, 8-1.5-5-5, 8-1.5-5-7, 8-1.5-5-12,†8-1.5-5-15, 8-1.5-5-16, 8-1.5-5-16.5, 8-1.5-†5-20, 8-1.5-5-21, 8-1.5-5-22, and 8-1.5-5-†23, effective January 27, 2004, PL 282-2004.

Two additional changes were made to†the law, which applies to both county†and municipal storm water departments.†First, if the Department uses private†property for storm water collection and†disposal and the private landowner†gives consent, the Department shall be†responsible for maintaining that private†property. Second in efforts to regulate†storm water, a person may not be†required to screen a storm water outfall†that is less than 24 inches in diameter.

HEA 1798, SECTIONS 19 and 20, Ind Code†ßß 8-1.5-5-27 and 8-1.5-5-28, effective†January 27, 2004, PL 282-2004.

County Drainage Board Storm Water†Management Authority

If a County does not adopt an ordinance†to create a Department of Storm Water†Management, effective January 27,†2004, the Legislature has given the†responsibility and authority for storm†water management to the County†Drainage Board. The Drainage Board†may establish fees for services it provides†to address issues of storm water†quality and quantity. Specifically, the†Drainage Board may charge fees for†the costs of constructing, maintaining,†operating and equipping storm water†improvements. For purposes of this law,†storm water improvements is defined†to include storm sewers, drains, storm†water retention or detention structures,†dams, or any other improvements used†for the collection, treatment and†disposal of storm water. Fees will be†assessed to each owner of a lot, parcel†of real property or building that uses or†is served by storm water improvements†that address storm water quality and†quantity. Unless the Drainage Board†finds otherwise, the storm water improvements†are considered to benefit†every lot, parcel of real property, or†building that uses or is served by the†storm water improvements. The Drainage†Board is to use the same factors†as a Department of Storm Water†Management would in setting user fees:

A flat charge for each lot, parcel†of property, or building;

The amount of impervious†surface on the property;

The number and size of storm†water outlets on the property;

The amount, strength, or character†of storm water discharged;

The existence of improvements†on the property that address†storm water quality and quantity†issues;

The degree to which storm water†discharged from the property†affects water quality in the†district; and

Any other factors the Drainage†Board considers necessary.

The Drainage Board may, like the†County Board of Storm Water Management,†adopt different schedules of fees†or make classifications in schedules†of fees based on (1) variation in the†costs, including capital expenditure, of†furnishing services to various classes†of users or to various locations; (2)†variations in the number of users in†various locations; and (3) whether the†property is used primarily for residential,†commercial or agricultural purposes.

HEA 1798, SECTION 40, Ind. Code 36-9-27-†114, effective January 27, 2004, PL 282-2003.

Third Class City Storm Water†Management

Starting July 1, 2004, Third Class cities†were given the right to place responsibility†for control of their storm water†facilities in a municipal works board, a†board consisting of the members of the†city's legislative body, a utility service†board or a board of directors of waterworks.†If that city had a Department of†Storm Water Management, the ordinance†turning control of the storm water facilities†over to one of these boards must†specify a procedure for the transition of†the control from the Department of†Storm Water Management to the Board.

HEA 1798, SECTIONS 1 and 6, Ind. Code†ßß8-1.5-3-3 and 8-1.5-5-4, effective July 1,†2004, PL 282-2003.

State-Regulated Wetlands

A second law to take effect this year†resulting from an override of Governor†O'Bannon's veto last year...