Amends 329 IAC 3.1-1-14.1, 329 IAC 10-14-1, 329 IAC 15-3-4, and 329 IAC 15-4-3, adds 329 IAC 10-11-8 and 329 IAC 11-9-4.1, and repeals 329 IAC 15-3-7 concerning solid waste and hazardous waste program permitting fees as required by Public Law 250-2019. Effective 30 days after filing with the Publisher.

First Notice of Comment Period: February 19, 2020, Indiana Register (DIN: 20200219-IR-329200024FNA).

Second Notice of Comment Period: June 2, 2021, Indiana Register (DIN: 20210602-IR-329200024SNA).

Notice of Public Hearing: June 2, 2021, Indiana Register (DIN: 20210602-IR-329200024PHA).

Change in Notice of Public Hearing: August 18, 2021, Indiana Register (DIN: 20210818-IR-329200024CHA).

Date of First Hearing: November 10, 2021.

IC 13-14-9-4.5 states that a board may not adopt a rule under IC 13-14-9 that is substantively different from the draft rule published under IC 13-14-9-4, until the board has conducted a third comment period that is at least 21 days long. Because this proposed rule is not substantively different from the draft rule published on June 2, 2021, at DIN: 20210602-IR-329200024SNA, the Indiana Department of Environmental Management (IDEM) is not requesting additional comment on this proposed rule.

IDEM requested public comment from June 2, 2021, through July 2, 2021, on IDEM's draft rule language. IDEM received comments from the following parties:

Indiana Cast Metals Association (INCMA)

Indiana Chapter of the National Waste and Recycling Association (IN NWRA)

Indiana Manufacturers Association (IMA)

Comment: The list of fees in 329 IAC 10-11-8 includes the word "Other" for New, Major Modification, and Renewal in a list of fees to be charged. The commenter respectfully requests that language be inserted into the draft rule to clarify that the term "Other" does not include Type IV in annual waste permitting fees, modifications, and renewals. (INCMA)

Response: IDEM appreciates the commenter's concern and for bringing this matter to the agency's attention. The "Other" category was inadvertently included into the draft rule language and has been removed from the draft rule.

Comment: The commenter suggests that Incinerators and Municipal/Nonmunicipal Solid Waste Landfills (>500 TPD) be subject to the same Annual Operation Fee. (IN NWRA)

Response: The Annual Operation Fees for Municipal or Nonmunicipal Solid Waste Landfills (>500 Tons Per Day) and Incinerators can be found in the draft rule at 329 IAC 10-11-8(b). Fees were determined after conducting an analysis of current fee revenue and the costs associated with permitting that are incurred by IDEM.

IDEM is statutorily required to raise fees for the solid waste and hazardous waste permitting programs and water-related programs so that total fee revenue is increased by $3,200,000 as compared to the year preceding the increase. IDEM determined that fee increases for the solid waste and hazardous waste permitting programs would account for $1,715,595 of the total increase. Meeting this target was also taken into consideration when determining the fee increases outlined in this proposed rule.

Comment: As the fees proposed in LSA #20-24 are specifically intended to regulate hazardous and solid waste activities listed in the document, we trust that the new fees will be utilized for that purpose and not subject to expenditures on other non-waste activities. (IN NWRA)

Response: Pursuant to IC 13-16-1-5, the fees collected under this rulemaking shall be deposited in the environmental management permit operation fund under IC 13-15-11. The fund provides money for permitting and directly associated activities in accordance with IC 13-15-11-1(b).

Comment: In general, the amount of the fee increases across the board is excessive. While the commenter understands the need to increase the fees, the percentage increase for each of the categories is unreasonable. We request that IDEM reconsider and lower the percentage increases for each category by at least half and consider staggering further increases on a five to 10 year basis. (IMA)

Response: IDEM is sensitive to the commenter's concerns, however, the current fees have not been raised in twenty-five years and are insufficient to cover the costs of operating the programs. Public Law 250-2019 requires the Environmental Rules Board (board) to increase fees for solid waste and hazardous waste programs, along with fees for water-related programs, by an aggregate amount of $3,200,000 greater than the aggregate fee revenue actually received in the year immediately preceding the proposed fee increases. IDEM's proposed increase for solid waste and hazardous waste program fees is approximately $1,715,595 out of the total $3,200,000. This share of the total increase was determined by conducting an analysis of current fee revenue and associated costs incurred by IDEM between both water programs and solid and hazardous waste programs.

Current law requires the board to adopt these fee increases by January 1, 2023. Public Law 250-2019 establishes that the board may not change these fees more than one time in five years. Therefore, the commenter's suggestion that the fee increases be a lower percentage increase and be staggered over a five to ten year basis would not be permissible under current law. Any decrease in a proposed fee would necessitate an increase of another fee so that IDEM would meet its statutory obligation of raising an additional $3,200,000 in revenue as compared to the year prior.

Comment: It is unreasonable and curious why the application fees for new permits are not also being increased when permit renewal fees are being increased. It is understandable that there likely are not many, if any, new hazardous waste permit applications currently being submitted to IDEM. However, it is not reasonable for IDEM to charge a lower fee to review an application for a new facility than it charges for a permit renewal or Class 3 modification. It is highly likely, if not certain, that IDEM will need to spend more time processing a new permit application than it does processing a renewal or Class 3 modification. If no fee increase is proposed for new permit applications, then a lesser fee increase for permit renewals and modifications than currently proposed is justified. (IMA)

Response: The purpose of this rulemaking is to fulfill the statutory requirement of acquiring $3,200,000 in additional fee revenue as compared to the revenue received in the year prior to the increase. Based on an analysis of current fee revenue and associated costs incurred by IDEM, the agency determined that an increase in fees associated with just the solid waste and hazardous waste programs should result in the agency collecting and additional $1,715,595.

As the commenter noted, there are very few new hazardous waste permit applications currently being submitted to IDEM. Specifically, between Fiscal Year (FY) 2017 and FY 2020, only one of these types of applications was submitted to IDEM. Given that new applications are so rare, it does not make fiscal sense for IDEM to increase these fees when the purpose of the increase is to raise revenue. Instead, to raise the statutorily required amount of new revenue, IDEM has opted to increase fees on permitting services that are more often utilized and also more costly to the agency. Lowering these types of fees, as the commenter suggested, would likely result in the agency being unable to fulfill its statutory requirement.

Comment: The proposed new 329 IAC 3.1-1-14.1(c) should be removed from the proposed rule because it is duplicative of already existing authority. The per ton hazardous waste disposal fee amount and payment requirements already exist pursuant to IC 13-22-12-3.5. Therefore, restating the statutory requirement in the regulation is unnecessary and could create confusion in the event either the governing statute or the regulation is modified in the future. (IMA)

Response: The commenter is correct that language nearly identical to the proposed 329 IAC 3.1-1-14.1(c) can be found at IC 13-22-12-3.5. Nearly all the language in this proposed rulemaking can be found in various locations in statute with changes being made to the fee amounts. The purpose of this rulemaking is to adhere to the statutory requirements of Public Law 250-2019 and incorporate fees that currently exist in statute into the Indiana Administrative Code (IAC) so that they may be increased or decreased by the Environmental Rules Board within certain statutory parameters. If this rulemaking is promulgated, the commenter is correct that there will be duplicative and conflicting language in statute and in the IAC. However, it will be the responsibility of the Indiana General Assembly to correct this issue by repealing the conflicting sections in statute in accordance with IC 13-16-1-5.5(b).

Comment: To both increase permit fee collection and assist regulated entities, the commenter suggests that IDEM include a new expedited permit fee category with fees above the regular permit fees. This would provide an option for a regulated entity to request expedited permit reviews for a premium over and above the regular scheduled permit fee. (IMA)

Response: IDEM appreciates the commenter's proposal and may consider an expedited permit review system with an additional fee in the future. However, this particular rulemaking is limited to the scope of fulfilling the requirements of Public Law 250-2019 by incorporating existing fees for solid waste and hazardous waste programs into the Indiana Administrative Code and increasing those fees to acquire an additional $1,715,595 in revenue as compared to the year preceding the increase. Therefore, IDEM will not be incorporating an expedited permit review system with an additional fee into this rulemaking.

On November 10, 2021, the Environmental Rules Board (board) conducted the first public hearing/board meeting concerning the development of amendments to 329 IAC 3.1-1-14.1, 329 IAC 10-14-1, 329 IAC 15-3-4, and 329 IAC 15-4-3, the addition of 329 IAC 10-11-8 and 329 IAC 11-9-4.1, and the repeal of 329 IAC 15-3-7. No comments were made at the first hearing.

SECTION 1. 329 IAC 3.1-1-14.1 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-15-11; IC 13-16; IC 13-22-2; IC 13-22-12; IC 13-30-4

Sec. 14.1. (a) The following definitions apply throughout this section:

(1) "Boilers and industrial furnaces" or "BIFs" means facilities as defined under "boilers" and "industrial furnaces" in 40 CFR 260.10*.

(2) "Class 2 modification" refers to the modification classification system described under 40 CFR 270.42*.

(3) "Class 3 modification" refers to the modification classification system described under 40 CFR 270.42*.

(4) "Ground water monitoring well" means a device required by a permit condition or applicable rule to monitor the quality of ground water during a twelve (12) month period.

(5) "Land disposal" includes interim status and permitted hazardous waste landfills and interim status and permitted hazardous waste surface impoundments.

(6) "Large quantity generator" has the meaning set forth in 40 CFR 260.10*.

(7) "Operation" or "operating" means the following:

(A) A hazardous waste treatment, storage, or disposal unit that will close by removing all waste is considered operating if waste is present in the unit as of January 1.

(B) A disposal unit that will close leaving waste in place is considered operating until the unit has permanently stopped receiving waste as of January 1.

(8) "Storage" means the term as defined in 40 CFR 260.10* and includes interim status and permitted hazardous waste storage.

(9) "Treatment" means the term as defined in 40 CFR 260.10* and includes interim status and permitted hazardous waste treatment. The term does not include treatment that is excluded from permitting or interim permitting under 40 CFR 261.4*, 40 CFR 261.6*, and 40 CFR 262.14 through 40 CFR 262.17*.

(b) In accordance with IC 13-22-12-2 and IC 13-22-12-3, Hazardous waste fees are as follows:

(c) For the disposal of hazardous waste in Indiana, the following requirements apply:

(1) Fees for hazardous waste disposal are as follows:

(A) For hazardous waste disposed of in a disposal facility, eleven dollars and fifty cents ($11.50) per ton. If hazardous waste is mixed with or dissolved or suspended in water or another liquid at the time it is disposed of in a disposal facility, the entire mixture, solution, or suspension disposed of is considered hazardous waste disposed of in a disposal facility for the purposes of this clause.

(B) For hazardous waste disposed of by underground injection, eleven dollars and fifty cents ($11.50) per ton. A person required to pay disposal fees under this clause is not liable for more than twenty-five thousand dollars ($25,000) in disposal fees under this clause for all hazardous waste disposed of by the person by underground injection in one (1) calendar year.

(2) Fees imposed under subdivision (1)(A) must be paid by the operator of the disposal facility at which the hazardous waste is disposed. For hazardous waste disposed of by underground injection at a location other than a disposal facility, the fee imposed on the disposal of the hazardous waste under subdivision (1)(B) must be paid by the person disposing of the hazardous waste.

(3) Fees imposed under this subsection begin accruing on January 1 of each year. The fees that accrue under this subsection during a calendar year must be paid to the department on or before March 1 of the following year.

(4) The fees imposed under this subsection must be based on the total tonnage of hazardous waste disposed. The fees do not apply to the treatment or storage of hazardous waste in a disposal facility.

(5) The fees paid to the department under this subsection must be handled in accordance with IC 13-22-12-3.6.

(c) (d) Requirements for application fees are as follows:

(1) The fees must be submitted with the hazardous waste permit application.

(2) The commissioner shall deny hazardous waste permit applications without the application fee.

(3) The fees are not refundable once staff review of the application has commenced.

(d) (e) The following requirements apply to persons or facilities subject to the annual operation fee schedule:

(1) Annual operation fees established in IC 13-22-12-3 apply to facilities listed in subsection (b) that:

(A) operate with a permit;

(B) operate under interim status;

(C) are a large quantity generator; or

(D) otherwise manage hazardous waste subject to regulation under IC 13-22-2.

(2) A hazardous waste management facility permitted as of January 1 of the assessed year must pay annual operation fees, even if not yet constructed or receiving waste.

(3) Waivers for large quantity generators are prohibited.

(4) A permitted treatment, storage, or disposal facility that has the ability to manage hazardous waste must pay the applicable fee, whether or not hazardous waste is being managed at the facility.

(5) Permitted treatment and storage facilities that close by removing all waste are not required to pay a post-closure fee because the facility is no longer regulated.

(6) Facilities that are issued a post-closure permit must pay the post-closure fee that is assessed for the duration of the post-closure period.

(7) A person shall remit a hazardous waste annual operation fee or an installment allowed by subsection (f) (g) to the commissioner:

(A) no more than thirty (30) days after the date the fee is assessed; or

(B) by the date the installment is due.

(8) A person or facility that is described in more than one (1) category under this section shall pay all applicable fees.

(e) (f) The following requirements apply to hazardous waste annual operation fees:

(1) Hazardous waste annual operation fees begin accruing on January 1 of each year.

(2) The commissioner shall:

(A) assess hazardous waste annual operation fees not later than June 15 for the current year's activities; and

(B) base the assessment on a large quantity generator's previous year's activities as defined by the large quantity generator.

(f) (g) Installment payments may be allowed as follows:

(1) The commissioner shall allow a person to remit installments on the annual fee if:

(A) the person determines that a single payment of the entire fee is an undue hardship; and

(B) the commissioner receives written notification requesting consideration of installment payments before January 30 of the invoiced year.

(2) Installments paid on a:

(A) quarterly basis are due on:

(i) February 15;

(ii) May 15;

(iii) August 15; and

(iv) November 15; or

(B) semiannual basis are due on:

(i) February 15; and

(ii) August 15.

(3) The commissioner shall not send a notice of the installment method to the person who notifies in subdivision (1)(B).

(g) (h) In addition to the penalties described under IC 13-30-4, the following requirements apply:

(1) A person shall be assessed a delinquency charge equal to ten percent (10%) of the hazardous waste annual operation fee or ten percent (10%) of the installment, whichever is applicable, if the person does not remit a hazardous waste annual operation fee or an installment established under subsection (f)(2) (g)(2) within:

(A) sixty (60) days after the date the fee is assessed; or

(B) thirty (30) days after the date the installment is due.

(2) The delinquency charge described in subdivision (1) is due and payable:

(A) sixty (60) days after the date the hazardous waste annual operation fee is assessed; or

(B) thirty (30) days after the date the installment is due.

(3) The commissioner may revoke a person's permit if the person does not remit the hazardous waste annual operation fee or an installment established by the commissioner and any applicable delinquency charge within:

(A) ninety (90) days after the date the hazardous waste annual operation fee is assessed; or

(B) sixty (60) days after the date the installment is due.

(4) Before revoking a person's permit under subdivision (3), the commissioner shall send a written notice by certified mail that:

(A) describes what fees and delinquency charge are due; and

(B) indicates that the commissioner may revoke the person's permit for nonpayment thirty (30) days after receipt of the notice.

(h) (i) The fees and delinquency charges collected under this section:

(1) are payable to the department; and

(2) must be deposited in the environmental management permit operation fund established under IC 13-15-11.

*These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, Indiana 46204.

SECTION 2. 329 IAC 10-11-8 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-20-1; IC 13-21-5; IC 36-9-30

Sec. 8. (a) The application fees for solid waste permits are as follows:

(b) The annual operation fees for solid waste facilities are as follows:

Affected: IC 13-20; IC 13-21-5; IC 36-7-4; IC 36-9-30

Sec. 1. (a) A quarterly tonnage report of solid waste received at the solid waste land disposal facility must be submitted to the commissioner by the owner, operator, or permittee of that facility.

(b) The report required by subsection (a) must be submitted on or before the fifteenth day of the month immediately following the end of the calendar quarter being reported. If the submittal date falls on a Saturday, a Sunday, or a national or state legal holiday, the submittal date will be the next day that is not a Saturday, a Sunday, or a national or state legal holiday.

(c) The report required by subsection (a) must be submitted by the owner, operator, or permittee of the solid waste land disposal facility that is open to accept solid waste for disposal unless the owner, operator, or permittee of the solid waste land disposal facility has ceased accepting solid waste for a period of at least one (1) calendar quarter, and has sent written notification to the commissioner indicating the initiation of final closure under 329 IAC 10-22-4, 329 IAC 10-30-6, or 329 IAC 10-37-6 as appropriate.

(d) The solid waste hauler shall provide the owner, operator, or permittee of the solid waste land disposal facility with the origin of the solid waste delivered to the solid waste land disposal facility. The hauler shall estimate, by percent, the type and amount of solid waste originating in each county and state, or country if other than the United States, if the load contains solid waste from more than one (1) county, state, or country.

(e) The owner, operator, or permittee of the solid waste land disposal facility shall submit the quarterly tonnage report required by subsection (a) as follows:

(1) In the most current paper or electronic submittal format prescribed by the commissioner. The owner, operator, or permittee may obtain a quarterly tonnage report form from the department. The form:

(A) may be photocopied or electronically copied by the owner, operator, or permittee of the solid waste land disposal facility; and

(B) in its most current format, may be computer generated by the owner, operator, or permittee of the solid waste land disposal facility.

(2) The original of each paper report must be signed by the solid waste land disposal facility owner, operator, or permittee as certification of report accuracy.

(3) Each report must be accurate, legible, and complete.

(4) The report required by this subsection must include at least the following information:

(A) The weight in total tons of solid waste received at the solid waste land disposal facility for that calendar quarter compiled by waste type and origin.

(B) The county and state in which the solid waste originated. If the solid waste originated outside of the United States, the country must be designated. The origin must be provided to the solid waste land disposal facility by the solid waste hauler as described in subsection (d).

(C) The type, total weight in tons, and final destination of solid waste diverted from disposal for reuse or recycling after being received at the solid waste land disposal facility.

(D) Waste types, including the following:

(i) Municipal solid waste.

(ii) Construction/demolition waste.

(iii) Foundry waste.

(iv) Coal ash.

(v) Flue gas desulfurization wastes.

(vi) Other solid waste.

(f) If the owner, operator, or permittee of the solid waste land disposal facility ascertains that there is an error in any report previously submitted as required by subsection (a), a revised report reflecting the correct information must be submitted in the same format as the original submission. The revised report must:

(1) have "Amended" written or typed at the top of each page of the resubmitted report; and

(2) be submitted before or with the submission of the next quarterly tonnage report after ascertaining an error.

(g) Copies of reports required by this section must be:

(1) retained as specified under 329 IAC 10-1-4(b) for three (3) years after the submittal date of the report; and

(2) made available during normal operating hours for inspection and photocopying or electronic copying by a representative of the department.

(h) The solid waste land disposal facility owner, operator, or permittee shall maintain the documentation to substantiate reports required by this section. Such The documentation must be:

(1) retained as specified under 329 IAC 10-1-4(b) for three (3) years after the submittal date of the report; and

(2) made available during normal operating hours for inspection and photocopying or electronic copying by a representative of the department.

(i) Failure to submit reports and copies as required by this section or maintain copies of reports and records as required by this section constitutes an operational violation of this article.

(j) Solid waste disposal fees for solid waste disposed in certain facilities must be submitted with each quarterly report in accordance with the following:

(1) Ten cents ($0.10) per ton of solid waste disposed in a municipal solid waste landfill.

(2) Ten cents ($0.10) per ton of solid waste disposed in a nonmunicipal solid waste landfill.

(3) Five cents ($0.05) per ton of solid waste disposed in an incinerator.

(4) Ten cents ($0.10) per ton of solid wasted disposed in a construction or demolition site.

SECTION 4. 329 IAC 11-9-4.1 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-20-1; IC 13-21-5; IC 36-9-30

Sec. 4.1. (a) For solid waste processing facilities, fees are as follows:

(b) For processing facilities, annual fees are as follows:

SECTION 5. 329 IAC 15-3-4 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-20-21; IC 13-30-2; IC 36-9-30

Sec. 4. The owner or operator of a waste tire storage site or processing operation shall pay the following fees: required by IC 13-20-21

SECTION 6. 329 IAC 15-4-3 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-20-21; IC 13-30-2; IC 36-9-30

Sec. 3. A waste tire transporter shall pay the fee required by IC 13-20-21 following fees for waste tire transportation:

SECTION 7. 329 IAC 15-3-7 IS REPEALED.

Notice of Public Hearing

DIN: 20211208-IR-329200024PRA

Composed: Apr 26,2024 6:58:22PM EDT

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