Citations Affected: IC 4-21.5; IC 4-22; IC 13-14; noncode.
Synopsis: Environmental rulemaking. Requires the office of
environmental adjudication to notify an environmental rulemaking
board (ERB) of certain final orders concerning the ERB. With respect
to environmental non-rule policy documents, requires the department
of environmental management (IDEM) to make certain information
available to the public and an ERB concerning the proposed adoption
by the ERB. With respect to proposed rules of an ERB, requires
disclosure of additional information in the rulemaking process,
including justification for requirements and restrictions that exceed
federal standards, and specifies when IDEM must provide to the ERB
the fiscal analysis prepared by the legislative services agency. Requires
the environmental quality service council to study the environmental
rulemaking process.
Effective: Upon passage; July 1, 2003.
January 9, 2003, read first time and referred to Committee on Environmental Affairs.
February 4, 2003, amended, reported favorably _ Do Pass.
February 11, 2003, read second time, amended, ordered engrossed.
A BILL FOR AN ACT to amend the Indiana Code concerning
environmental law.
SECTION 1. IC 4-21.5-7-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. (a) The office of
environmental adjudication is established to review, under this article,
decisions of the commissioner of the department of environmental
management.
(b) The office of environmental adjudication shall:
(1) conduct adjudicatory hearings required to implement:
(1) (A) air pollution control laws (as defined in IC 13-11-2-6),
water pollution control laws (as defined in IC 13-11-2-261),
environmental management laws (as defined in
IC 13-11-2-71), and IC 13-19; and
(2) (B) rules of:
(A) (i) the air pollution control board;
(B) (ii) the water pollution control board;
(C) (iii) the solid waste management board; and
(D) (iv) the financial assurance board; and
shallbe conducted by the office of environmental adjudication under
IC 4-21.5.
(2) notify a board referred to in subdivision (1)(B) of a final
order of the office of environmental adjudication that
interprets:
(A) a rule of the board; or
(B) a statute under which a rule of the board is authorized.
SECTION 2. IC 4-22-2-28 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 28. (a) The Indiana
economic development council may review and comment on any
proposed rule and may suggest alternatives to reduce any regulatory
burden that the proposed rule imposes on businesses. The agency that
intends to adopt the proposed rule shall respond in writing to the
Indiana economic development council concerning the council's
comments or suggested alternatives before adopting the proposed rule
under section 29 of this chapter.
(b) The agency shall also submit a proposed rule with an estimated
economic impact greater than five hundred thousand dollars
($500,000) on the regulated entities to the legislative services agency
after the preliminary adoption of the rule. Except as provided in
subsection (c), before the adoption of the rule, the legislative services
agency shall prepare, not more than forty-five (45) days after receiving
a proposed rule, a fiscal analysis concerning the effect that compliance
with the proposed rule will have on the:
(1) state; and
(2) entities regulated by the proposed rule.
The fiscal analysis must contain an estimate of the economic impact of
the proposed rule and a determination concerning the extent to which
the proposed rule creates an unfunded mandate on a state agency or
political subdivision. The fiscal analysis is a public document. The
legislative services agency shall make the fiscal analysis available to
interested parties upon request. The agency proposing the rule shall
consider the fiscal analysis as part of the rulemaking process and shall
provide the legislative services agency with the information necessary
to prepare the fiscal analysis. The legislative services agency may also
receive and consider applicable information from the regulated entities
affected by the rule in preparation of the fiscal analysis.
(c) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall give
written notice to the legislative services agency of the
proposed date of preliminary adoption of the proposed rule
not less than sixty-six (66) days before that date; and
(2) the legislative services agency shall prepare the fiscal
analysis referred to in subsection (b) not later than
twenty-one (21) days before the proposed date of preliminary
adoption of the proposed rule.
SECTION 3. IC 13-14-1-11.5, AS AMENDED BY P.L.261-1999,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11.5. (a) If the department utilizes a policy or
statement that:
(1) interprets, supplements, or implements a statute or rule;
(2) has not been adopted in compliance with IC 4-22-2;
(3) is not intended by the department to have the effect of law;
and
(4) is not related solely to internal department organization;
the proposed policy or statement may not be put into effect until the
requirements of subsection (b) have been met.
(b) The department shall present the proposed policy or
statement under subsection (a) to the appropriate board. At least
forty-five (45) days before the presentation, the department shall
make available to the public, including posting on the department's
website:
(1) the proposed policy or statement;
(2) the availability for public inspection of all materials relied
upon by the department in the development of the proposed
policy or statement, including, if applicable:
(A) health criteria;
(B) analytical methods;
(C) treatment technology;
(D) economic impact data;
(E) environmental assessment data; and
(F) other background data;
(3) the date, time, and location of the presentation under this
subsection to the appropriate board; and
(4) the opportunity for a person to comment to the
department and the appropriate board on the proposed policy
or statement before or at the time of the presentation under
this subsection.
The department shall provide to the appropriate board at the time
of the presentation under this subsection a copy of all comments
made by a person under subdivision (4). The proposed policy or
statement may not be put into effect until thirty (30) days after the
policy or statement is made available for public inspection and
comment and presented to the appropriate board.
(b) (c) If the department utilizes a policy or statement described in
subsection (a), the department shall distribute:
(1) two (2) copies of the policy or statement to the publisher of
the Indiana Register for publication in the Indiana Register; and
(2) the copies required under IC 4-23-7.1-26 to the Indiana library
and historical department.
(c) (d) The department shall:
(1) maintain a current list of all department policies and
statements described in subsection (a) that the department may
use in the department's external affairs; and
(2) update the list at least one (1) time each month.
(d) (e) The department shall include the following information on
the list described in subsection (c) (d) for each policy or statement:
(1) The title of the policy or statement.
(2) The identification number of the policy or statement.
(3) The date the policy or statement was originally adopted.
(4) The date the policy or statement was last revised.
(5) A reference to all other policies or statements described in
subsection (a) that are repealed or amended by the policy or
statement.
(6) A brief description of the subject matter of the policy or
statement.
(e) (f) At least one (1) time every three (3) months, the department
shall distribute two (2) copies of the list maintained and updated under
subsection (c) (d) to the following:
(1) The publisher of the Indiana Register.
(2) The Indiana library and historical department.
SECTION 4. IC 13-14-9-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 3. The department shall
provide notice in the Indiana Register of the first public comment
period required by section 2 of this chapter. A notice provided under
this section must do the following:
(1) Identify the authority under which the proposed rule is to be
adopted.
(2) Describe the subject matter and the basic purpose of the
proposed rule. The description required by this subdivision must:
(A) include a listing of all alternatives being considered by the
department at the time of the notice; and must
(B) include:
(i) a statement indicating whether each alternative listed
under clause (A) is imposed under federal law;
(ii) a statement explaining how each alternative listed
under clause (A) that is not imposed under federal law
differs from federal law; and
(iii) any information known to the department about the
potential fiscal impact of each alternative under clause
(A) not imposed under federal law; and
(C) set forth the basis for each alternative listed under clause
(A).
(3) Describe the relevant statutory or regulatory requirements or
restrictions relating to the subject matter of the proposed rule that
exist before the adoption of the proposed rule.
(4) Request the submission of alternative ways to achieve the
purpose of the proposed rule.
(5) Request the submission of comments, including suggestions
of specific language for the proposed rule.
(6) Include a detailed statement of the issue to be addressed by
adoption of the proposed rule.
SECTION 5. IC 13-14-9-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4. The department shall
provide notice in the Indiana Register of the second public comment
period required by section 2 of this chapter. A notice provided under
this section must do the following:
(1) Contain the full text of the proposed rule, as provided under
IC 4-22-2-24(c).
(2) Contain a summary of the response of the department to
written comments submitted under section 3 of this chapter
during the first public comment period.
(3) Request the submission of comments, including suggestions
of specific amendments to the language contained in the proposed
rule.
(4) Contain the full text of the commissioner's written findings
under section 7 of this chapter, if applicable.
(5) Identify each element of the proposed rule that imposes a
restriction or requirement on persons to whom the proposed
rule applies that is not imposed under federal law.
(6) With respect to each element identified under subdivision
(5), identify:
(A) the environmental circumstance or hazard that
dictates the imposition of the proposed restriction or
requirement to protect human health and the
environment;
(B) examples in which federal law is inadequate to provide
the protection referred to in clause (A); and
(C) the:
(i) estimated fiscal impact; and
(ii) expected benefits;
based on the extent to which the proposed rule exceeds the
requirements of federal law.
(7) For any element of the proposed rule that imposes a
restriction or requirement that is not imposed under federal
law, describe the availability for public inspection of all
materials relied upon by the department in the development
of the proposed rule, including, if applicable:
(A) health criteria;
(B) analytical methods;
(C) treatment technology;
(D) economic impact data;
(E) environmental assessment data;
(F) analyses of methods to effectively implement the
proposed rule; and
(G) other background data.
SECTION 6. IC 13-14-9-4.2 IS ADDED AS A NEW SECTION TO
READ AS FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4.2. Not less
than fourteen (14) days before the date of preliminary adoption of
a proposed rule by a board, the department shall make available
to the board the fiscal analysis prepared by the legislative services
agency under IC 4-22-2-28(c).
SECTION 7. IC 13-14-9-4.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4.5. (a) Except for a
rule:
(1) that has been preliminarily adopted by a board in a form that
is:
(A) identical to; or
(B) not substantively different from;
the proposed rule published in a second notice under section 4 of
this chapter; or
(2) for which the commissioner has made a determination and
prepared written findings under section 7 or 8 of this chapter;
a board may not adopt a rule under this chapter until the board has
conducted a third public comment period that is at least twenty-one
(21) days in length.
(b) The department shall publish notice of a third public comment
period with the:
(1) text; and
(2) summary; and
(3) fiscal analysis;