TITLE 327 WATER POLLUTION CONTROL BOARD

SECOND NOTICE OF COMMENT PERIOD

LSA Document #08-210

The Indiana Department of Environmental Management (IDEM) has developed draft rule language for amendments to 327 IAC 11 concerning implementation of Indiana law regarding environmental impact statements for major state actions that may significantly affect the quality of the human environment. By this notice, IDEM is soliciting public comment on the draft rule language. IDEM seeks comment on the affected citations listed and any other provisions of Title 327 that may be affected by this rulemaking.

First Notice of Comment Period: April 2, 2008, Indiana Register (DIN: 20080402-IR-327080210FNA).

IC 13-12-4-5 requires all state agencies to use a systematic, interdisciplinary approach to ensure integration of natural and social sciences in planning and decision making that may impact the environment. It requires all state agencies to identify and develop methods and procedures that will ensure that unquantified environmental amenities and values be given consideration along with economic and technological considerations in decision making. Each state agency that plans or undertakes a major state action that significantly affects the quality of the environment is required to include a detailed statement by the responsible official that describes the environmental impact, any unavoidable adverse effects to the environment, alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved if the proposed action is implemented. The state agency proposing the action is required to consult with and obtain comments from each state agency that has jurisdiction or has special expertise regarding any potential environmental impact. Copies of the statement and the comments of appropriate federal, state, and local agencies that are authorized to develop and enforce environmental standards shall be made available to the Governor and public and must accompany the proposal through the agency review process.

Under IC 13-12-4-5, the environmental boards are required to define in rules the actions that constitute a major state action significantly affecting the quality of the human environment.

IC 13-12-4-8 exempts state licensing and permitting actions from the requirement to develop an environmental impact statement. IC 13-12-4-10 excludes state agencies that are required to file a federal environmental impact statement under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 et seq. (NEPA) from the state environmental impact statement requirement.

The current rules at 327 IAC 11 provide a checklist to aid state agencies in determining whether the state action they are contemplating does in fact significantly affect the environment. The current rules also mirror the statutory requirement that all state agencies prepare environmental impact statements for major state actions. The rules have not been beneficial in helping agencies decide whether the activity they may take is a major state action significantly affecting the quality of the human environment. IDEM wants to make the rules a useful tool for developing environmental impact statements that can aid in the decision making process for major state actions.

The current rules at 327 IAC 11 apply specifically to Indiana state agencies that plan or engage in major state actions that may have a significant impact on the environment. Those rules were intended to provide guidance and specificity to state agencies by defining the scope of analysis that a major state action undertaken by that agency must be subjected to. The purpose of this rulemaking is to define "major state action significantly affecting the quality of the human environment".

The draft rule contains tools for state agencies to use to determine whether their actions rise to the level for which an environmental impact statement must be completed. Actions for which a federally-required environmental impact statement are required are exempt under Indiana law. Indiana law and this draft rule mirror federal NEPA requirements for environmental impact statements. However, the requirement to develop an environmental impact statement for state projects is a requirement imposed under Indiana law, not federal law. The requirement is a statutory requirement and not a result of this draft rule.

The draft rule does not impose any requirement or restriction on persons to whom the rule applies that is not imposed by statute under IC 13-12-4. The rule does not directly or independently impose a requirement or restriction on any person. Therefore, the rule does not impose any additional fiscal impact. The purpose of the rule is to define "major state action significantly affecting the quality of the human environment", as required by IC 13-12-4-5. The rule also provides tools that affected state agencies can use to comply with the requirements of IC 13-12-4. In accordance with IC 4-22-2-28, this rule is not anticipated to have a total estimated economic impact greater than $500,000 on all regulated entities.

An external workgroup has met to discuss issues involved in this rulemaking and develop the rule amendments. The workgroup is made up of IDEM staff, representatives of the various affected state agencies, and representatives of the environmental community. If you wish to provide comments to the workgroup on the rulemaking, attend meetings, or have suggestions related to the workgroup process, please contact MaryAnn Stevens, Rules Section, Office of Water Quality at (317) 232-8635 or (800) 451-6027 (in Indiana). Please provide your name, phone number, and e-mail address, if applicable, where you can be contacted. The public is also encouraged to submit comments and questions to members of the workgroup who represent their particular interests in the rulemaking.

IDEM requested public comment from April 2, 2008, through May 2, 2008, regarding amendments to rules concerning implementation of Indiana law regarding environmental impact statements for major state actions that may significantly affect the quality of the human environment. IDEM received comment letters from the following parties by the comment period deadline:

Improving Kids' Environment (IKE)

Sierra Club Hoosier Chapter (SC)

Comment: Indiana's environmental impact review law is based on the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., generally known as NEPA, which was passed in 1969. NEPA was the first major piece of federal environmental legislation. It reflected a recognition that federal agencies, before they took or funded major activities, should consider the potential environmental impacts of those activities and possible alternatives that would lessen those impacts. The law was based on a premise that environmental quality is important to humans and that legitimate public policy goals can be carried out in a way that is protective of environmental quality. The first step to achieving this is for agencies to consider and describe potential environmental impacts as they are planning their projects and activities and making their funding choices, and to do so in a way that allows other agencies and the public to participate in the process. Years after the passage of NEPA and Indiana's law based on it, consideration of potential environmental impacts remains important. (IKE, SC)

Response: IDEM agrees that considering environmental impacts when developing public projects is important and believes that the updated rule will provide a better tool for state agencies to use as they plan.

Comment: Environmental impact statements can be a major benefit in assuring the public that government agencies are giving due consideration to the effects that their actions may have on the environment. It is laudable that the Water Pollution Control Board is willing to review its obligations under IC 13-12-4-5 to define by rule "the actions that constitute a major state action significantly affecting the quality of the human environment" so that government agencies can fulfill their obligations under the law. (SC, IKE)

Response: It has been a number of years since these rules were reviewed, and it is IDEM's hope that the updated rules will provide a better tool for state agencies to use when developing environmental impact statements.

Comment: The workgroup convened by IDEM to discuss the issues involved in this rulemaking should include staff from other government departments whose actions often have environmental impacts so that they may explain any problems that their departments have with the implementation of the existing rules and suggest potential remedies. At a minimum, these other departments should include the Department of Transportation and the Department of Natural Resources. (SC, IKE)

Response: IDEM agrees and has contacted several state agencies about participating in the workgroup and rulemaking process. Currently, both INDOT and IDNR are participating members of the workgroup.

Comment: It could be that the existing rules are adequate and simply need to be implemented in a clear, consistent, and timely fashion so that the departments and the public can rapidly identify which state actions need review and which should move forward promptly. Hopefully, if changes are necessary, the workgroup will be able to agree on these changes amiably without undue discussion and delay in allowing the rulemaking process to proceed. (SC)

Response: The existing rules are set to sunset at the end of 2008. IDEM hopes to have new, updated rules in place by that time or shortly thereafter. The existing rules have not been reviewed for a number of years. Although this is a somewhat expedited rulemaking process, IDEM believes it is important to have discussions with affected parties during the development of these rules. Thus far, workgroup meetings have been very productive.

At this time, IDEM solicits the following:

(1) The submission of alternative ways to achieve the purpose of the rule.

(2) The submission of suggestions for the development of draft rule language.

Mailed comments should be addressed to:

#08-210 (State Environmental Policy)

MaryAnn Stevens

Rules Section

Office of Water Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Mail Code 65-40

Indianapolis, Indiana 46204-2251

Comments must be postmarked, faxed, or hand delivered by November 21, 2008.

Additional information regarding this rulemaking action may be obtained from MaryAnn Stevens, Rules Section, Office of Water Quality, (317) 232-8635 or (800) 451-6027 (in Indiana).

SECTION 1. 327 IAC 11-1-2 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-12-4

Sec. 2. The purpose of this rule (327 IAC 11-1) article is to:

SECTION 2. 327 IAC 11-1-3 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-12-4-8

Sec. 3. (a) This rule (327 IAC 11-1) article applies to all state agencies.

(b) Each agency of the This article does not supersede or set aside any other:

(c) IC 13-1-10-7 provides that the "(P)olicies and goals set forth in IC 13-1-10-7 and this rule (327 IAC 11-1) are supplementary to those set forth in existing authorizations of state agencies." Accordingly, each agency shall interpret the provisions of IC 13-1-10-7 and this rule (327 IAC 11-1) as a supplement to its existing authority and as a mandate to view traditional policies in the light of the chapter's (IC 13-1-10) environmental objectives.

(d) (c) Actions covered include, but are not limited to, the following:

(e) (d) Actions exempted are as follow:

(f) (e) Categorical exemptions include the following:

(g) (f) Statutory exemptions include the following:

SECTION 3. 327 IAC 11-1-4 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-12-4

Sec. 4. (a) It is not within the scope of this rule (327 IAC 11-1) to identify before the fact which In accordance with IC 13-12-4-5, each state agency must determine whether an action it is considering constitutes a major state agency actions action significantly affect affecting the quality of the human environment. The specific determination must be developed for each agency action by preparation of Such an action requires the completion of an environmental impact statement. The definitions from this rule and the preparation of an environmental assessment as set forth in 327 IAC 11-1-5. will aid state agencies in making a determination of the necessity for an environmental impact statement. The department shall develop guidance to further aid state agencies in this assessment, including the following:

(b) Before developing an environmental impact statement, each responsible official, in preparing the assessment both primary accordance with IC 13-12-4-5, shall consult with and secondary consequences of short term and long term duration should be considered by the obtain comments of each state agency since many state actions stimulate that has jurisdiction by law or induce secondary effects in the form of associated investments special expertise with respect to any environmental impact involved. Copies of the statement and changed patterns of social the comments of the appropriate federal, state, and economic activities. local agencies that are authorized to develop and enforce environmental standards:

(c) The effect of many state decisions about a project or complex of projects may be individually limited but can be cumulatively considerable in affecting the environment.

(d) A proposed action which is likely to be highly controversial from an environmental standpoint should be considered significant justification for preparation of an environmental impact statement.

SECTION 4. 327 IAC 11-3 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-11-2; IC 13-12-4

Sec. 1. The definitions in IC 13-11-2 apply throughout this article.

Affected: IC 13-11-2-51; IC 13-12-4

Sec. 2. "Department" has the meaning set forth in IC 13-11-2-51.

Affected: IC 13-12-4

Sec. 3. (a) "Environmental assessment" means a concise public document for which a state agency is responsible that does the following:

(b) An environmental assessment includes the following:

Affected: IC 13-12-4

Sec. 4. "Environmental impact statement" means the detailed written statement made by the responsible official of a state agency that plans or undertakes a major state action significantly affecting the quality of the human environment that is required by IC 13-12-4-5. The environmental impact statement describes the following:

Affected: IC 2-2.1-1; IC 4-22-2; IC 13-12-4; IC 13-14-9

Sec. 5. "Major state action" means any of the following that are planned or undertaken by a state agency:

Affected: IC 13-11-2-158; IC 13-12-4

Sec. 6. "Person" has the meaning set forth in IC 13-11-2-158(a).

Affected: IC 13-12-4

Sec. 7. "Responsible official" or "responsible state official" means the person established by law as the head of the state agency that plans or undertakes a major state action significantly affecting the quality of the human environment:

Affected: IC 13-12-4

Sec. 8. "Significantly affecting the quality of the human environment" means the following:

Affected: IC 13-12-4

Sec. 9. "State agency", as used in this article, means any:

SECTION 5. THE FOLLOWING ARE REPEALED: 327 IAC 11-1-1; 327 IAC 11-1-5; 327 IAC 11-2.

Notice of Public Hearing

DIN: 20081022-IR-327080210SNA

Composed: Apr 16,2024 11:58:58AM EDT

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