From The KDDK Advantage - June 2007

• Environmental Crimes and Corporate Officer Liability Defined

• Do Underground Minerals Always Belong to the Landowner?

• June 22 Property Tax Seminar

• Attorney Notes

• From the KDDK Archives

Environmental Crimes and Corporate Officer Liability Defined
By Monica E. Edwards

In the most recent legislative session, Senate Enrolled Act (SEA) No. 286 was passed in an effort to clarify and replace the former Indiana Code (I.C.) 13-30-6, which in general terms made the offender(s) subject to a Class D felony for intentionally, knowingly, or recklessly violating environmental management laws including but not limited to any air pollution or water pollution control law.

Because the old statute was overly broad and believed to be unenforceable, a group of interested stakeholders came together to help clarify what should constitute an environmental crime in Indiana and the level of punishment that should be imposed when the law is violated. SEA No. 286 is an attempt to provide this clarity and the result is the new I.C. 13-30-10, to become effective on July 1, 2007.

I.C. 13-30-10 provides greater detail as to what constitutes an environmental violation that is subject to a Class D felony (e.g., material permit misstatement, destruction or falsification of records, hindrance or disablement of a monitoring device or falsification of testing or monitoring data). In addition, I.C. 13-30-10 states that a Class D or Class C felony may be imposed when someone knowingly, intentionally or recklessly violates an air pollution, water pollution, hazardous waste or underground storage tank regulation, but only if a contaminant is discharged into the environment because of the violation and the contaminant discharge results in one or more of the following:

1. Substantial risk of serious bodily injury;
2. Serious bodily injury;
3. The death of vertebrae animals; or
4. Damage to the environment that renders the environment unfit for human or vertebrae animal life or damage to an endangered, at risk, or threatened species.

There is a potential defense for the above violations when a person did not know or could not have reasonably expected that the release of a contaminant would result in the specified harm or damage.

Corporate Officer Liability
“Criminal Liability of Corporate Officers” is addressed in another new Indiana Code (I.C. 13-12-6) created by SEA No. 286. Under this statute, a responsible corporate officer who knowingly, intentionally or recklessly aids, induces or causes another party to commit an environmental violation may be charged with the same offense as the person or people who actually committed it.

The corporate officer may be found liable even if the offender has not been prosecuted or convicted of the offense, or even if the offender is acquitted. Corporate officer accountability and the incentive to comply with environmental management laws are clearly promoted by this new code.

Because the enforcement of environmental crimes law is still a relatively new area in Indiana, it is anticipated that the statutes created or modified by SEA No. 286 will be refined in future legislative sessions as they are tested on environmental crimes over the coming year.

Monica Edwards practices environmental, energy and mineral, intellectual property and real estate law. She can be contacted at 812-423-3183 or medwards@kddk.com.

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