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Sunday, April 27, 2008

Environment - "Interpretation of state law led to 20-day BP public hearing notice"

The Gary Post-Tribune's awarding-winning environmental reporter, Gitte Laasby, has this story today:

Indiana Department of Environmental Management officials acted against advice from the U.S. Environmental Protection Agency to check state law when IDEM provided 20 days’ notice of a public hearing on BP Whiting’s air permit in Hammond.

State law requires 30 days. IDEM asked the EPA in January how much advance notice was required and was told state law applies, according to e-mails the Post-Tribune obtained under a Freedom of Information Act request from the U.S. Environmental Protection Agency.

State law specifies 30 days’ notice is required.

“With regard to BP’s public hearing, (...) do you believe we need to provide 30 days notice for a formal Hearing?” chief of IDEM’s Office of Air Quality permits branch Matt Stuckey asked in an e-mail to Sam Portanova, an environmental engineer with the U.S. Environmental Protection Agency, on Jan. 21.

Portanova replied the next day.

“Regarding public hearing requirements, to my knowledge there aren’t any public hearing requirements in the federal regs for minor construction permits. Therefore, the need to provide notice would be based on Indiana rules,” Portanova replied.

Despite the advice from EPA, IDEM went ahead and scheduled a hearing without the required 30 days’ notice for minor modifications. IDEM first notified the public of a Feb. 25 hearing this via e-mail on Feb. 5 — 20 days in advance.

The legal ad announcing the hearing, which counts for legal purposes, was scheduled to run in the Post-Tribune Feb. 7 — 18 days in advance — but was canceled before it ran.

IDEM Commissioner Tom Easterly said he knew IDEM talked to EPA, but that IDEM’s lawyers did not believe 30 days’ notice was required.

“We’d have to get our legal people to find the real answer, but their interpretation at the time was that we didn’t have to do that,” Easterly said in an interview with the Post-Tribune Friday. “But it doesn’t matter because we decided to do it. It wasn’t worth the discussion. People asked for more time so that was one thing we could do.”

Asked whether Stuckey checked with legal counsel on the notice requirement after receiving the note from EPA that state law applies, Easterly said, “I can’t speak for what somebody else did.” * * *

On Feb. 11, IDEM ran a new legal ad in the Post-Tribune, announcing the hearing date as Friday, March 14, in Hammond.

“We provided additional time for the public to participate in the review process while still ensuring effective review and meeting our statutory requirements for issuing a decision,” IDEM spokesman Rob Elstro explained.

If IDEM had not renoticed the hearing, the permit could have been successfully challenged at the state or federal level for lack of notice. Construction can’t start until the permit is in hand.

The Friday night hearing seemed unusual to many, including former IDEM Assistant Commissioner Janet McCabe. McCabe had never experienced a hearing on a Friday night and wrote current IDEM Assistant Commissioner of Air Quality Dan Murray to ask for an explanation.

“Ran out of date options,” Murray replied on Sunday, Feb. 10, in an e-mail released by IDEM in a response to a public information request by the Post-Tribune.

McCabe, who is now the executive director of Improving Kids’ Environment, pressed Murray on the issue in another e-mail. Murray elaborated, but suggested a hearing was not required.

“I hope this is you and I discussing this,” Murray wrote. “We started at Feb. 25th and pushed it back due to pressure. We wanted it early than the 14th, but the facility wasn’t available. The 14th is as far back as I’m willing to push it back and is more than we’ve done in the past.”

McCabe replied: “My concern is that there’s a growing feeling that IDEM is not interested in public input and just does what the businesses want, after checking with them. Agree with it or not, scheduling a public hearing on a Friday — when people may have to choose between going to that and going to their kids’ basketball game — just fuels that fire.”

Murray replied: “You understand the unfortunate reality of source mods (modifications), there are projects and schedules involved.”

Easterly said IDEM ran into problems with availability of personnel and space to hold the hearing and didn’t have many other dates available.

“We had trouble getting the room. We don’t own these rooms. And while we had it all set up for the first meeting, there was very little time that they gave us to choose to use it again,” Easterly said.

He said people should have time to comment on what they heard at the hearing. The e-mail released by EPA said BP had a “June 1 commence construction deadline.”

The story is accompanied by this timeline of events:
Feb. 5, 2008: IDEM announces BP’s air permit meeting and hearing on Feb. 25 via its listserv.
Feb. 7: Legal ad announcing the meeting and hearing on Feb. 25 is scheduled to run in the Post-Tribune, but an IDEM employee cancels the ad before it runs. The law requires at least 30 days’ notice.
Feb. 8: IDEM reschedules the meeting and hearing, announcing via its listserv that the event is now March 14.
Feb. 11: A new legal ad runs in the Post-Tribune, announcing the meeting and hearing on March 14. This time, the notice is 32 days in advance.

Posted by Marcia Oddi on April 27, 2008 01:45 PM
Posted to Environment