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Thursday, March 05, 2009

Ind. Decisions - Still more on: Transfer list for week ending Feb. 27, 2009

In this post earlier today I said I would have more later on the 3rd decision of note denied transfer last Thursday -- Indiana Department of Environmental Management v. Steel Dynamics.

Here is the ILB summary of the decision, from Oct. 7, 2008. And here is the language that attracted my interest:

However, a state may choose to impose more stringent regulations than those imposed by RCRA, and “‘RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.’” Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 863 (4th Cir. 2001) (quoting Old Bridge Chems., Inc. v. N.J. Dep’t of Envtl. Prot., 965 F.2d 1287, 1296 (3d Cir. 1992)). This is not altered by the fact that IDEM simply incorporated the EPA regulations by reference. This incorporation does not, in our opinion, require IDEM to blindly follow the EPA’s interpretation of these regulations. By incorporating these regulations, they became IDEM regulations, and subject to independent IDEM interpretation, just as much as if IDEM had promulgated them itself.

As stated above, IDEM’s interpretation of the relevant statutes and regulations is reasonable, and we see no need to further address this issue, regardless of how EPA interprets these regulations, because the EPA simply sets the absolute minimums that must be met. The trial court erred by not accepting the reasonable interpretation of the agency charged with enforcing the statutes and regulations at issue.

Posted by Marcia Oddi on March 5, 2009 12:18 PM
Posted to Environment | Indiana Transfer Lists