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Tuesday, January 08, 2013
Ind. Gov't. - Rules of the new Environmental Rules Board
The new Indiana Environmental Rules Board commenced operations on January 1, 2013. It replaced the three long-time environmental boards, the Air Pollution Control Board (rules of this board are located at Article 326 of the Indiana Administrative Code (IAC)), the Water Pollution Control Board (327 IAC), and the Solid Waste Management Board (329 IAC).
Today I write about the rules of the new board.
The main function of the environmental boards, since the creation of IDEM in the mid-1980s, has been to adopt, amend, or repeal Indiana's environmental rules. This power to make rules, which have the force and effect of laws, is delegated to the boards by the General Assembly. The General Assembly has placed a number of statutory constraints on this environmental rulemaking power, constrains much more stringent than those which apply to other state entities with rulemaking authority.
The existence of the boards themselves is the biggest constraint. The General Assembly could have given rulemaking authority directly to the Commissioner of the Department of Environmental Management. It elected not to do so, instead creating a system where boards made up of representatives of those affected by the rules have the responsibility to consider and act on rulemaking proposals offered by IDEM, and occasionally others, after a long deliberative process designed to insure input from all the affected parties.
I go through this detail to emphasize the point that these are not the rules of IDEM, or the rules of IDEM's air, water, or waste divisions. These are the rules of the three environmental boards or, as of January 11, 2013, the Indiana Environmental Rules Board. The new law states this correctly at, for example, IC 13-13-8-2(d)(1):
The rules adopted before January 1, 2013, by the air pollution control board abolished under subsection (a)(1):It is important, I believe, to clearly maintain this distinction between the roles of IDEM and its divisions, on the one hand, and the new environmental rulemaking board, on the other.
(A) shall be treated as though the rules were adopted by the environmental rules board; and
(B) shall be administered and implemented by the air pollution control division of the department described in IC 13-13-8-2(1).
And what is my point?
The ILB has learned that the rules of the Indiana Air Pollution Control Board, the Water Pollution Control Board, and the Solid Waste Management Board are being redesignated by the staff of the IAC/Ind.Register as the rules of the “Air Pollution Control Division”, “Water Pollution Control Division” and “Solid Waste Management Division.” In my opinion, this is incorrect and will only continue confusion in the roles of the various entities.