April 6, 2007
ENGROSSED
SENATE BILL No. 205
_____
DIGEST OF SB 205
(Updated April 4, 2007 12:27 pm - DI 69)
Citations Affected: IC 13-20; IC 14-8; IC 14-9; IC 14-21; IC 14-22;
IC 23-14; IC 32-21.
Synopsis: Environmental matters and archeology. Provides that a
person that: (1) holds a valid solid waste landfill construction permit
that authorizes construction for a facility that has not been substantially
developed; and (2) has not commenced construction within five years
after the date of the permit or another period established by rule or
statute; must apply for a new construction permit and meet the
requirements of all applicable environmental laws existing at the time
the new permit is sought. Provides that a person that: (1) holds a valid
solid waste landfill construction permit that authorizes construction at
an operating facility; and (2) has not commenced construction within
five years after the date of the permit or another period established by
rule or statute; must meet the requirements of all applicable
environmental laws existing at the time construction is substantially
commenced. Redefines "artifact" and changes the date used in
determining whether an object or feature is an artifact. Redefines
"burial ground" to include certain historic sites. Redefines "plan" to
include a plan for excavation of ground related to construction.
(Continued next page)
Effective: July 1, 2007.
Gard, Hume
(HOUSE SPONSORS _ DVORAK, WOLKINS)
January 8, 2007, read first time and referred to Committee on Energy and Environmental
Affairs.
February 20, 2007, amended, reported favorably _ Do Pass.
February 26, 2007, read second time, ordered engrossed. Engrossed.
February 27, 2007, read third time, passed. Yeas 48, nays 0.
HOUSE ACTION
March 12, 2007, read first time and referred to Committee on Environmental Affairs.
April 5, 2007, amended, reported _ Do Pass.
Digest Continued
Exempts qualified professional archeologists who conduct phase 1
archeological surveys from certain archeological restrictions.
Establishes criminal penalties for certain actions that disturb human
remains. Requires a person disturbing ground to use reasonable care
and diligence to determine if the ground that may be disturbed is within
100 feet of a cemetery or burial ground. Requires a person who disturbs
buried human remains or artifacts to cease disturbing the remains or
artifacts and the surrounding area within 100 feet and makes it a Class
A infraction to fail to do so. Includes excavating or covering over the
ground a prohibited activity within 100 feet of the limits of a cemetery
or burial ground. Establishes certain requirements for development
plans and archeological plans. Applies certain notice requirements to
a person who disturbs burial grounds. Makes reports concerning the
location of historical or archeological sites confidential under some
circumstances. Allows certain persons to accompany a conservation
officer to investigate a violation of historic preservation and archeology
law. Establishes a fund to assist private homeowners who accidentally
discover an artifact, a burial object, or human remains and need
assistance to comply with an approved archeological or development
plan. Allows a court to order restitution for certain costs related to the
violation of historic preservation and archeology law. Makes it a Class
D felony to possess looted property and a Class C felony if the cost of
carrying out an archeological investigation on the site that was
damaged to obtain the looted property is more than $100,000. Provides
that a disinterment under a plan approved by the department of natural
resources is exempt from other disinterment procedures. Requires a
property owner to identify in a residential real property sales disclosure
form any part of the property that was subject to surface mining at any
time during the 20 years that immediately precede the closing date.
April 6, 2007
First Regular Session 115th General Assembly (2007)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in
this style type, and deletions will appear in
this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
this style type. Also, the
word
NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in
this style type or
this style type reconciles conflicts
between statutes enacted by the 2006 Regular Session of the General Assembly.
ENGROSSED
SENATE BILL No. 205
A BILL FOR AN ACT to amend the Indiana Code concerning the
environment and natural and cultural resources, and to make an
appropriation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 13-20-2-9; (07)ES0205.1.1. -->
SECTION 1. IC 13-20-2-9 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]: Sec. 9. (a) A person that:
(1) holds a valid construction permit that is issued under this
chapter and authorizes construction for a facility that has not
been substantially developed; and
(2) has not commenced construction within:
(A) five (5) years after the date of the permit; or
(B) another period established by rule or statute;
must apply for a new construction permit and meet the
requirements of all applicable environmental laws existing at the
time the new permit is sought.
(b) A person that:
(1) holds a valid construction permit that is issued under this
chapter and authorizes construction at an operating facility;
and
(2) has not commenced construction within:
(A) five (5) years after the date of the permit; or
(B) another period established by rule or statute;
must meet the requirements of all applicable environmental laws
existing at the time construction is substantially commenced.
(c) The periods described in subsections (a) and (b) for a person
to commence construction are tolled pending either of the
following concerning the construction permit:
(1) An administrative appeal.
(2) A judicial review.
SOURCE: IC 14-8-2-53; (07)ES0205.1.2. -->
SECTION 2. IC 14-8-2-53 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 53. "Conservation
officer" for purposes of IC 14-9-8, has the meaning set forth in
IC 14-9-8-1. refers to an officer employee of the law enforcement
division organized under IC 14-9-8.
SOURCE: IC 14-21-1-2; (07)ES0205.1.3. -->
SECTION 3. IC 14-21-1-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 2. As used in this
chapter, "artifact" means:
(1) a feature that is nonportable evidence of past human
behavior or activity and is found on or in the ground,
including structural remains formed before December 31,
1870; or
(2) an object made, or shaped by human modified, or used
workmanship before December 11, 1816. 31, 1870.
SOURCE: IC 14-21-1-3; (07)ES0205.1.4. -->
SECTION 4. IC 14-21-1-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 3. As used in this
chapter, "burial ground" means ground in which human remains are
buried. The term includes the following:
(1) The land associated with or incidental to the burial of human
remains.
(2) Historic cemeteries or land with human remains buried
before December 31, 1939.
SOURCE: IC 14-21-1-8; (07)ES0205.1.5. -->
SECTION 5. IC 14-21-1-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 8. (a) As used in this
chapter, "plan" refers to:
(1) an archeological plan, as described in subsection (b); or
(2) a development plan, as described in subsection (c).
(b) As used in this chapter, "archeological plan" means a plan for
the systematic recovery, analysis, and disposition by scientific methods
of material evidence and information about the life and culture in past
ages.
(c) As used in this chapter, "development plan" means:
(1) a plan for the erection, alteration, or repair of any structure; or
(2) a plan for the excavation of any ground related to
construction.
SOURCE: IC 14-21-1-24; (07)ES0205.1.6. -->
SECTION 6. IC 14-21-1-24 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 24. (a) As used in this
section, "agricultural purpose" includes farming, dairying, pasturage,
agriculture, horticulture, floriculture, viticulture, ornamental
horticulture, olericulture, pomiculture, animal husbandry, and poultry
husbandry.
(b) Sections 25, 26, 28, and 29 of this chapter do not apply to the
following:
(1) Surface coal mining regulated under IC 14-34.
(2) Cemeteries and human remains subject to IC 23-14.
(3) Disturbing the earth for an agricultural purpose.
(4) Collecting any object other than human remains that is visible
in whole or in part on the surface of the ground, regardless of the
time the object was made or shaped.
(5) Qualified professional archeologists, as determined by the
department, who conduct phase 1 archeological surveys
according to guidelines in effect by the department.
SOURCE: IC 14-21-1-25; (07)ES0205.1.7. -->
SECTION 7. IC 14-21-1-25 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 25. (a) The commission
shall adopt rules establishing standards for plans.
(b) With respect to archeological plans, the rules must impose a
standard of conduct that does the following:
(1) Promotes the scientific investigation and conservation of past
cultures.
(2) Considers the interests and expertise of amateur archeologists
and professional archeologists.
(c) With respect to development plans, the rules must impose a
standard of conduct that preserves and protects both of the following:
(1) The rights and interests of landowners.
(2) The sensitivity of human beings for treating human remains
with respect and dignity, as determined by the commission.
(d) Plans required under this chapter must be submitted to the
department for approval according to rules adopted by the commission.
(e) Proposed plans and any reports required by the plans must
be reviewed by the division within thirty (30) days after receipt.
SOURCE: IC 14-21-1-26; (07)ES0205.1.8. -->
SECTION 8. IC 14-21-1-26 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 26. (a) A person who
disturbs the ground for the purpose of discovering artifacts,
or burial
objects,
or human remains must do so in accordance with a plan
approved by the department under section 25 of this chapter or under
IC 14-3-3.4-14 (before its repeal).
(b) A person who recklessly, knowingly, or intentionally violates
this section commits the following:
(1) A Class A misdemeanor, if the violation does not involve
disturbing human remains.
(2) A Class D felony, if the violation involves disturbing
human remains.
SOURCE: IC 14-21-1-26.5; (07)ES0205.1.9. -->
SECTION 9. IC 14-21-1-26.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 26.5. (a)
Notwithstanding IC 23-14-44-1, this section does not apply to the
following:
(1) A public utility (as defined in IC 8-1-2-1(a)).
(2) A corporation organized under IC 8-1-13.
(3) A municipally owned utility (as defined in IC 8-1-2-1(h)).
(4) A surface coal mining and reclamation operation permitted
under IC 14-34.
Except as provided in this subsection, subsection (b), and subsection
(c), a person may not disturb the ground within one hundred (100) feet
of
the limits of a burial ground or cemetery for the purpose of
excavating or covering over the ground or erecting, altering, or
repairing any structure without having a development plan approved by
the department under section 25 of this chapter or in violation of a
development plan approved by the department under section 25 of this
chapter. The department must review the development plan not later
than sixty (60) days after the development plan is submitted.
(b) A development plan:
(1) must be approved if a person intends to:
(A) excavate or cover over the ground; or
(B) construct a new structure or alter or repair an existing
structure;
that would
significantly impact the burial ground or cemetery; and
(2) is not required if a person intends to:
(A) excavate or cover over the ground; or
(B) erect, alter, or repair an existing structure;
for an incidental or existing use that would not impact the burial
ground or cemetery.
(c) A development plan for a governmental entity to disturb ground
within one hundred (100) feet of a burial ground or cemetery must be
approved as follows:
(1) A development plan of a municipality requires approval of the
executive of the municipality and does not require the approval of
the department. However, if the burial ground or cemetery is
located outside the municipality, approval is also required by the
executive of the county where the burial ground or cemetery is
located. A county cemetery commission established under
IC 23-14-67-2 may advise the executive of the municipality on
whether to approve a development plan.
(2) A development plan of a governmental entity other than:
(A) a municipality; or
(B) the state;
requires the approval of the executive of the county where the
governmental entity is located and does not require the approval
of the department. However, if the governmental entity is located
in more than one (1) county, only the approval of the executive of
the county where the burial ground or cemetery is located is
required. A county cemetery commission established under
IC 23-14-67-2 may advise the county executive on whether to
approve a development plan.
(3) A development plan of the state requires the approval of the
department.
(d) A development plan may require surveys to delimit the
burial ground with respect to the proposed alteration.
(e) If a burial ground is within an archeological site, an
archeological plan is required to be part of the development plan.
(d) (f) A person who recklessly, knowingly, or intentionally violates
this section commits a Class A misdemeanor. However, the offense is
a Class D felony if the person disturbs buried human remains or grave
markers while committing the offense.
SOURCE: IC 14-21-1-27; (07)ES0205.1.10. -->
SECTION 10. IC 14-21-1-27 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 27. (a) A person who
disturbs buried human remains or burial grounds shall do the
following:
(1) Notify the department within two (2) business days of the time
of the disturbance.
(2) Treat or rebury the human remains in a manner and place
according to rules adopted by the commission or a court order and
permit issued by the state department of health under
IC 23-14-57.
(b) A person who recklessly, knowingly, or intentionally violates
this section commits a Class A misdemeanor.
SOURCE: IC 14-21-1-28; (07)ES0205.1.11. -->
SECTION 11. IC 14-21-1-28 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 28. A person who
with
the intent to disturb ground for the purpose of discovering or removing
artifacts, burial objects, grave markers, or human remains, disturbs
buried disturbs human remains or grave markers while moving,
collecting, or removing artifacts or burial objects either:
(1) without a plan approved by the department under:
(A) section 25 of this chapter; or
(B) IC 14-3-3.4-14 (before its repeal); or
(2) in violation of such a plan;
commits a Class D felony.
SOURCE: IC 14-21-1-29; (07)ES0205.1.12. -->
SECTION 12. IC 14-21-1-29 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 29. (a) A person who
discovers, uncovers, collects, or moves an artifact or burial object
while disturbing the ground for a purpose other than the discovery of
artifacts or burial objects shall do the following:
(1) Immediately cease disturbing the ground and the area within
one hundred (100) feet of the artifact or burial object.
(2) Notify the department within two (2) business days after the
time of the disturbance.
(b) After notification under subsection (a), the department may do
any of the following:
(1) Authorize the person to continue the ground disturbing
activity, with or without conditions.
(2) Require that continued ground disturbance activity be
conducted only in accordance with an approved plan. However,
this subdivision does not apply after thirty (30) days from the date
that the department receives notice.
(c) A person who violates subsection (a) commits a Class A
infraction.
SOURCE: IC 14-21-1-32; (07)ES0205.1.13. -->
SECTION 13. IC 14-21-1-32 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]:
Sec. 32. (a) Subject to subsections (b)
and (c), the division may keep reports and information concerning
the location of historic and archeological sites confidential if the
director of the division determines that disclosure would likely:
(1) risk harm to the historic or archeological site;
(2) cause a significant invasion of privacy; or
(3) impede the use of a traditional religious site by
practitioners.
(b) The division may not disclose reports and information
required to be confidential under federal law.
(c) If the director of the division determines that reports and
information should be confidential under subsection (a), the
director of the department, in consultation with the director of the
division, shall determine who may have access to the confidential
reports and information.
SOURCE: IC 14-21-1-33; (07)ES0205.1.14. -->
SECTION 14. IC 14-21-1-33 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]: Sec. 33. An employee of the division
or a person authorized by the department may accompany a
conservation officer on public or private property to determine if
there is a violation of this article.
SOURCE: IC 14-21-1-34; (07)ES0205.1.15. -->
SECTION 15. IC 14-21-1-34 IS ADDED TO THE INDIANA
CODE AS A
NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]:
Sec. 34. (a) The division may conduct
a program to assist private homeowners who have accidentally
discovered an artifact, a burial object, or human remains and who
need assistance to comply with an approved plan to excavate or
secure the site from further disturbance. The division may conduct
the program alone or by entering into an agreement with any
entity that the division selects.
(b) In conducting a program under subsection (a), the division
may receive gifts and grants under terms, obligations, and
liabilities that the director of the division considers appropriate.
The director shall use a gift or grant received under this
subsection:
(1) to carry out subsection (a); and
(2) according to the terms and obligations of the gift or grant.
(c) The auditor of state shall establish the archeology
preservation trust fund for purposes of holding money received
under subsection (b).
(d) The director of the division shall administer the archeology
preservation trust fund. The expenses of administering the
archeology preservation trust fund shall be paid from money in the
trust fund.
(e) The treasurer of state shall invest the money in the
archeology preservation trust fund that is not currently needed to
meet the obligations of the trust fund in the same manner as other
public trust funds may be invested. The treasurer of state shall
deposit in the archeology preservation trust fund the interest that
accrues from the investment of the trust fund.
(f) Money in the archeology preservation trust fund at the end
of a state fiscal year does not revert to the state general fund.
There is annually appropriated to the division the money in the
archeology preservation trust fund for the division's use in
carrying out the purposes of this section.
(g) The division may adopt rules under IC 4-22-2 to govern the
administration of this section.
SOURCE: IC 14-21-1-35; (07)ES0205.1.16. -->
SECTION 16. IC 14-21-1-35 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]: Sec. 35. (a) In addition to:
(1) a:
(A) sentence imposed under this chapter for a felony or
misdemeanor; or
(B) judgment imposed under this chapter for an infraction;
and
(2) an order for restitution to a victim;
a court may order an individual to make restitution to the
archeology preservation trust fund established under section 34 of
this chapter for the division's costs incurred because of the offense
committed by the individual.
(b) In ordering restitution under this section, the court shall
consider the following:
(1) The schedule of costs submitted to the court by the
division.
(2) The cost to the property owner to restore or repair the
damaged area of an archeological site or burial ground and
place the property in the property's original condition as
nearly as practicable.
(3) The amount of restitution that the individual is or will be
able to pay.
(c) The court shall immediately forward to the division a copy
of an order for restitution made under this section.
SOURCE: IC 14-21-1-36; (07)ES0205.1.17. -->
SECTION 17. IC 14-21-1-36 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2007]: Sec. 36. A person who knowingly or
intentionally receives, retains, or disposes of an artifact, a burial
object, or human remains obtained in violation of this chapter
commits possession of looted property, a Class D felony. However,
the offense is a Class C felony if the fair market cost of carrying
out a scientific archeological investigation of the area that was
damaged to obtain the artifact, burial object, or human remains is
at least one hundred thousand dollars ($100,000).
SOURCE: IC 14-22-40-5; (07)ES0205.1.18. -->
SECTION 18. IC 14-22-40-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 5. As used in this
chapter, "law enforcement officer" has the meaning set forth in
IC 35-41-1-17. The term includes a conservation officer. (as defined in
IC 14-9-8-1).
SOURCE: IC 23-14-57-4; (07)ES0205.1.19. -->
SECTION 19. IC 23-14-57-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 4. This chapter does not
apply to the following:
(1) The disinterment, disentombment, or disurnment of remains
upon the written order of the coroner of the county in which the
cemetery is situated.
(2) The removal of human remains under a plan approved by
the division of historic preservation and archeology under
IC 14-21-1.
SOURCE: IC 32-21-5-7; (07)ES0205.1.20. -->
SECTION 20. IC 32-21-5-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 7. The Indiana real
estate commission established by IC 25-34.1-2-1 shall adopt a specific
disclosure form that contains the following:
(1) Disclosure by the owner of the known condition of the
following:
(A) The foundation.
(B) The mechanical systems.
(C) The roof.
(D) The structure.
(E) The water and sewer systems.
(F) Additions that may require improvements to the sewage
disposal system.
(G) Other areas that the Indiana real estate commission
determines are appropriate.
(2) A notice to the prospective buyer that contains substantially
the following language:
"The prospective buyer and the owner may wish to obtain
professional advice or inspections of the property and provide for
appropriate provisions in a contract between them concerning any
advice, inspections, defects, or warranties obtained on the
property.".
(3) A notice to the prospective buyer that contains substantially
the following language:
"The representations in this form are the representations of the
owner and are not the representations of the agent, if any. This
information is for disclosure only and is not intended to be a part
of any contract between the buyer and owner.".
(4) A disclosure by the owner that an airport is located within a
geographical distance from the property as determined by the
Indiana real estate commission. The commission may consider the
differences between an airport serving commercial airlines and an
airport that does not serve commercial airlines in determining the
distance to be disclosed.
(5) Identification by the owner of any part of the property
that was subject to surface mining at any time during the
twenty (20) years that immediately precede the closing date.
SOURCE: IC 14-9-8-1; (07)ES0205.1.21. -->
SECTION 21. IC 14-9-8-1 IS REPEALED [EFFECTIVE JULY 1,
2007].