Whiting Refinery

BP's Whiting Refinery, as seen from Lakefront Park

INDIANAPOLIS — Gov. Eric Holcomb has approved a new state law dramatically increasing the penalties for damaging, trespassing upon or conspiring to harm facilities broadly defined as Indiana's "critical infrastructure."

Starting July 1, Senate Enrolled Act 471 makes it a Level 5 felony, punishable by up to six years in prison and a $10,000 fine, to recklessly, knowingly or intentionally damage or deface the property of a critical infrastructure facility.

The crime is enhanced to a Level 4 felony, with up to 12 years in prison, if the damage exceeds $50,000, or causes a "substantial interruption or impairment" of a public utility service.

Even just trespassing at a protected facility is a Level 6 felony and potentially subjects the perpetrator to 2½ years behind bars, under the law.

It also provides that any person or organization that conspires to harm a critical infrastructure facility, regardless of whether the conspiracy is carried out, can be fined up to $100,000, which is 10 times greater than Indiana's fine for committing murder.

The law defines "critical infrastructure facility" to include steel mills and oil refineries, such as those found in Northwest Indiana, as well as chemical manufacturing plants, aluminum manufacturers, electric utilities, water intake or treatment facilities, natural gas stations and equipment, fuel terminals, ports, rail yards and trucking terminals.

Also on the list are pulp or paper manufacturers, prescription drug makers, hazardous waste facilities, crude oil equipment, communications facilities, dams, above-ground pipelines and any similar or related site or equipment.

State Rep. Ed Soliday, R-Valparaiso, sponsor of the new law, said the statute updates the "key facility" protections Indiana put in place following the Sept. 11, 2001, terrorist attacks, and adjusts the punishments to account for the risk of cascading failure if a critical infrastructure site deliberately is destroyed.

"For example, if we fail part of the electrical grid, we fail not only things in hospitals but also in pumping and all kinds of things," Soliday said. 

"Quite frankly, it's a scary experience when we looked at our vulnerabilities — places that we can shut down the telecommunications system with 100 pounds of TNT."

Democratic lawmakers suggested the measure actually is an overreaction to pipeline protests in western states that will have a "chilling effect" on Hoosiers exercising their constitutional rights.

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In particular, state Sen. Lonnie Randolph, D-East Chicago, said he's concerned that if Region residents are exposed to a refinery leak and show up at the facility to protest, they not only might face the risk of prison time but also the possibility of getting slapped with a $100,000 fine.

Soliday insisted: "There is no attempt here to abridge the right to assemble, the right to picket or anything else."

"You never have been allowed to picket on private property," he said. "Those of us who have managed unions know, they don't get to picket on private property. They picket on public property."

The new statute specifies that lawful labor strikes and protests still are permitted adjacent to critical infrastructure facilities. Similarly, a person who is unaware they are trespassing would not be subject to prosecution.

"As with all criminal law, it has to be knowing and intentional," said state Sen. Eric Koch, R-Bedford, the Senate sponsor. "We've done our best to narrowly tailor this law to its purpose."

At the same time, an 18-year-old who spray-paints an electrical box by the side of the road could find themselves facing up to six years in prison, as opposed to the usual vandalism charge of misdemeanor criminal mischief, because the box counts as "any other facility used to support the generation, transmission or distribution of electricity," and therefore is "critical infrastructure."

Koch said police and prosecutors always have the discretion to decide whether to bring a charge under the new critical infrastructure law, or to continue relying on the state's vandalism statutes.

Maureen Ferguson, executive director of the Indiana Petroleum Council, applauded the Republican governor and the Republican-controlled General Assembly for enacting the law.

"Pipelines and other oil and gas infrastructure are instrumental in delivering clean, affordable and reliable energy to Indiana's working families, as well as the petrochemical feedstocks that create jobs in Indiana and enable modern life — feedstocks that are used in manufacturing pharmaceuticals, hospital equipment and even computers," Ferguson said.

"(The law) provides a mechanism to deter those who would hope to interrupt our state's flow of energy and create a potential safety risk to communities, first responders and the environment."

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