If you or your company owns, sells, or re-develops environmentally impaired property in Indiana, we encourage you to carefully study and become engaged in two major initiatives that will affect IDEM's approach to remediation projects. These initiatives target IDEM's Risk-Integrated System of Closure ("RISC") Program and could significantly increase your clean-up costs and timeframe to achieve closure.
 
These two initiatives are: (1) IDEM is overhauling the RISC Tech Guide which provides, among other things, detailed procedures to determine the nature and extent of contamination and both default and non-default approaches to site closure; and (2) IDEM is developing new rules that would provide the regulatory framework for risk-based assessment, clean-up, and closure of contaminated sites, including the controversial expectation that, to the extent feasible, source materials and contamination that exceed risk-based closure levels will be removed or treated.
 
Last Fall, IDEM released a preliminary draft of proposed changes to its RISC Tech Guide to an external group of Stakeholders. The RISC Tech Guide is a non-rule policy document that provides a framework for risk-based environmental assessments and closure. RISC was unveiled in February 2001, and has been routinely updated since then. Most of the updates involved changes to the default closure level tables. On May 20, 2008, IDEM responded to comments submitted by certain Stakeholders to the preliminary draft RISC Tech Guide. Based on those comments, IDEM identified sixteen (16) major proposed substantive changes that required further review and invited the Stakeholders to meet with key internal technical staff and senior management to discuss and finalize those changes. Some of those substantive changes included: a new  preference for clean-up policy; a new vapor intrusion appendix; further revisions to the default closure level tables; new procedures to demonstrative that a plume is stable; and issues regarding nature and extent investigations. To date, IDEM has met with the Stakeholders concerning its new vapor intrusion appendix and preference for clean-up policy. IDEM also hosts quarterly Consultant's Day sessions and has discussed some of these proposed changes in that forum. IDEM's next Consultant's Day session is scheduled for October 22, 2008. The preliminary agenda includes an update to IDEM's RISC Tech Guide changes, new application procedures for the Voluntary Remediation Program, and a presentation on nature and extent issues. Given the significance of these proposed changes, we encourage you to participate in these meetings and provide your comments and feedback on how these changes affect you and your company.
 
On a parallel track, on June 11, 2008, IDEM published a notice in the Indiana Register soliciting comments on the development of new rules concerning environmental assessment, clean-up, and closure of contaminated media. These rules would provide the regulatory foundation and framework for the proposed changes to the RISC Program. The timing of this notice raised some concerns and generally caught the regulated community by surprise. On August 11, 2008, IDEM extended the comment period to allow additional time for the regulated community to study the potential adverse effects and financial implications of the proposed rules. The comment deadline for this first notice was September 12, 2008. IDEM received comments from a wide variety of trade groups, law firms, environmental consultants, businesses, property owners, and local governmental officials. IDEM is evaluating these comments and will begin to draft rule language over the coming weeks. IDEM also anticipates establishing an external workgroup to address the issues presented in the comments.  Again, we encourage you and your company to participate in this workgroup and fully engage in this rulemaking effort. Our Firm submitted extensive comments to the proposed rulemaking effort which I would be happy to provide upon request.
 
IDEM continues to work hard to understand and address the concerns expressed by the regulatory community through its ongoing outreach efforts. IDEM is striving to develop policies and rules for its remediation programs that are clear, consistent, and transparent. We agree with these general parameters. However, much more work remains to ensure that Indiana has a viable risk-based program that is cost-effective, promotes voluntary clean-up efforts, and fosters brownfields redevelopment.
 
This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your lawyer on any specific legal questions you may have concerning your situation.  David R. Gillay, Esq., is an attorney in the Environmental Department of Barnes & Thornburg LLP's Indianapolis Office and may be reached at 317.231.7474 or david.gillay@btlaw.com.
 

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East Central Section Annual Meeting and Fall Technical Program

Nov. 6, 2008

Location:  NCAA Headquarters, Indianapolis

Co-Chair

Indiana A&WMA Website

It comes in the mail without fanfare or warning; usually generically addressed to "Environmental Manager" or "Plant Supervisor".  Sometimes it follows on the heels of an inspection, but often it comes without rhyme or reason.  It is a request from the Environmental Protection Agency ("EPA") for current and historical information relating to the operations of your facility as those operations are governed by the Clean Air Act ("the Act").  This request, in the form of a letter, is more commonly referred to as a "Section 114 Request".  Section 114 of the Act gives the Administrator of the EPA the authority to require any "person" (in reality, company) who owns or operates any emission source that is subject to the Act to provide any and all information that the EPA requests so that EPA may determine whether that company is in violation of the Act.  In essence, a 114 Request is asking the company to assist the government by providing it with the ammunition to find the company in violation of the Federal Rules, or, to paraphrase Shakespeare, to hoist itself upon one's own petard.
 
While each 114 Request is tailored to the specific information the EPA is interested in for the subject facility, the overall structure of the Request is primarily a boilerplate form.  Additionally, most 114 Requests ask for an enormous amount of information in a ridiculously short amount of time.  
 
Despite all of the above, there is no need to panic.  Upon receipt of such a letter, first note the date on which you received it. Then call together the appropriate personnel in your organization to address it. Let me stress that, initially, only the top management and decision makers should be alerted to the request.  Distributing copies of the Request to any and all personnel that may be affected usually results in panic, overreaction and the tendency for people to interpret the request in their own fashion. This can create an unproductive atmosphere.  Too many cooks, as they say.
 
At the risk of sounding self serving, the second thing you should do is to contact your attorney; preferably one with environmental expertise and who has experience dealing with the EPA, particularly in Region V.  Since most 114 Requests ask for the first round of information to be provided within thirty (30) days of receipt, it is important to set up a meeting as soon as possible with that attorney and the most affected members of your management and engineering staffs.  At that meeting you will want to go over the request, line item by line item, and ascertain what information is readily available, and in what format (i.e., electronic or paper copy) you maintain such information.  Some 114 Requests require some information to be provided to EPA in electronic format only.
 
Once you have a handle on what records you have access to and what time period those records comprise, you will then need to determine how quickly that information can be segregated, organized, copied, and sent to EPA.  In most cases, EPA is willing to negotiate on the timing of these deliverables if they believe you are diligently attempting to comply with the Request and not deliberately stonewalling.  Your attorney's call to the EPA official who signed the Request will usually result in a clarification of not only deadline, but a winnowing of the scope of the Request to that information that the EPA is genuinely interested in seeing.
 
Because it appears that EPA is currently engaged in a vigorous round of 114 Requests, particularly aimed at energy providers in Indiana, it is important that you remain vigilant and institute the above procedures immediately upon receipt of such a Request.  It is also a good idea to make sure your organization has a Document Retention Policy in place. Otherwise, claims that certain documentation is unavailable will be met with skepticism at EPA.  
 
This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your lawyer on any specific legal questions you may have concerning your situation.  Glenn de Roziere is a paralegal in the Environmental Department of Barnes & Thornburg LLP's Indianapolis Office and may be reached at 317.231.7394 or gderozie@btlaw.com. 

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This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your lawyer on any specific legal questions you may have concerning your situation.  Tony Sullivan, Esq., is an attorney in the Environmental Department of Barnes & Thornburg LLP's Indianapolis Office and may be reached at 317.231.7472 or tsulliva@btlaw.com.
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 Tim Haley, Barnes & Thornburg LLP

40 yrs - Harry Williams, Retired
30 yrs - Francis Chapman, Chapman Environmental Controls, President
25 yrs - Steve Aldridge, Knauf Fiberglass, EH&S Corporate Manager
20 yrs - Linda Bobo, Patriot Engineering & Environmental Co., Sr. Project Manager
20 yrs - William Gabbard, Gabbard Environmental Services, President
15 yrs - Steve Dixon, Delphi Electronics & Safety, Sr. Environmental Engineer
15 yrs - Thomas Koralewski, Sensient Technologies Corp., Sr. EHS Engineer
10 yrs - Laurence McHugh, Barnes & Thornburg, Partner
10 yrs - Geoffrey Glanders, August Mack Environmental, Inc., President
10 yrs - Steven Klarman, Momentive Performance Materials, EHS Manager
10 yrs - S. Andrew Bowman, Bingham McHale LLP, Partner
5 yrs - Christopher Kinsey, Compliance Environmental, President
5 yrs - Samuel Bruntz, Alcoa, Inc. - Warrick Operations, Staff Environmental Engineer
5 yrs - Thomas Linder, Temple-Inland, Environmental Manager
5 yrs - Anurag Gupta, Eli Lilly and Company, Sr. Project Engineer