First Regular Session 113th General Assembly (2003)
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HOUSE ENROLLED ACT No. 1671
AN ACT to amend the Indiana Code concerning environmental law.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 4-21.5-7-3; (03)HE1671.1.1. -->
SECTION 1. IC 4-21.5-7-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. (a) The office of
environmental adjudication is established to review, under this article,
decisions of the commissioner of the department of environmental
management.
(b) The office of environmental adjudication shall:
(1) conduct adjudicatory hearings required to implement:
(1) (A) air pollution control laws (as defined in IC 13-11-2-6),
water pollution control laws (as defined in IC 13-11-2-261),
environmental management laws (as defined in
IC 13-11-2-71), and IC 13-19; and
(2) (B) rules of:
(A) (i) the air pollution control board;
(B) (ii) the water pollution control board;
(C) (iii) the solid waste management board; and
(D) (iv) the financial assurance board; and
shall be conducted by the office of environmental adjudication under
IC 4-21.5.
(2) notify a board referred to in subdivision (1)(B) of a final
order of the office of environmental adjudication that
interprets:
(A) a rule of the board; or
(B) a statute under which a rule of the board is authorized.
SOURCE: IC 4-22-2-28; (03)HE1671.1.2. -->
SECTION 2. IC 4-22-2-28 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 28. (a) The Indiana
economic development council may review and comment on any
proposed rule and may suggest alternatives to reduce any regulatory
burden that the proposed rule imposes on businesses. The agency that
intends to adopt the proposed rule shall respond in writing to the
Indiana economic development council concerning the council's
comments or suggested alternatives before adopting the proposed rule
under section 29 of this chapter.
(b) The agency shall also submit a proposed rule with an estimated
economic impact greater than five hundred thousand dollars
($500,000) on the regulated entities to the legislative services agency
after the preliminary adoption of the rule. Except as provided in
subsection (c), before the adoption of the rule, the legislative services
agency shall prepare, not more than forty-five (45) days after receiving
a proposed rule, a fiscal analysis concerning the effect that compliance
with the proposed rule will have on the:
(1) state; and
(2) entities regulated by the proposed rule.
The fiscal analysis must contain an estimate of the economic impact of
the proposed rule and a determination concerning the extent to which
the proposed rule creates an unfunded mandate on a state agency or
political subdivision. The fiscal analysis is a public document. The
legislative services agency shall make the fiscal analysis available to
interested parties upon request. The agency proposing the rule shall
consider the fiscal analysis as part of the rulemaking process and shall
provide the legislative services agency with the information necessary
to prepare the fiscal analysis. The legislative services agency may also
receive and consider applicable information from the regulated entities
affected by the rule in preparation of the fiscal analysis.
(c) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall give
written notice to the legislative services agency of the
proposed date of preliminary adoption of the proposed rule
not less than sixty-six (66) days before that date; and
(2) the legislative services agency shall prepare the fiscal
analysis referred to in subsection (b) not later than
twenty-one (21) days before the proposed date of preliminary
adoption of the proposed rule.
SOURCE: IC 13-14-1-11.5; (03)HE1671.1.3. -->
SECTION 3. IC 13-14-1-11.5, AS AMENDED BY P.L.261-1999,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11.5. (a) If the department utilizes proposes to
utilize a policy or statement that:
(1) interprets, supplements, or implements a statute or rule;
(2) has not been adopted in compliance with IC 4-22-2;
(3) is not intended by the department to have the effect of law;
and
(4) is not related solely to internal department organization;
the proposed policy or statement may not be put into effect until the
requirements of subsection (b) have been met.
(b) The department shall present the proposed policy or
statement under subsection (a) to the appropriate board. At least
forty-five (45) days before the presentation, the department shall
make available to the public, including posting on the department's
web site:
(1) the proposed policy or statement;
(2) information on the availability for public inspection of all
materials relied upon by the department in the development
of the proposed policy or statement, including, if applicable:
(A) health criteria;
(B) analytical methods;
(C) treatment technology;
(D) economic impact data;
(E) environmental assessment data; and
(F) other background data;
(3) the date, time, and location of the presentation under this
subsection to the appropriate board; and
(4) information regarding the opportunity for a person to
comment to the department and the appropriate board on the
proposed policy or statement before or at the time of the
presentation under this subsection.
The department shall provide to the appropriate board at the time
of the presentation under this subsection a copy of all comments
made by a person under subdivision (4). The proposed policy or
statement may not be put into effect until thirty (30) days after the
policy or statement is made available for public inspection and
comment and presented to the appropriate board.
(b) (c) If the department utilizes a policy or statement described in
subsection (a), the department shall distribute:
(1) two (2) copies of the policy or statement to the publisher of
the Indiana Register for publication in the Indiana Register; and
(2) the copies required under IC 4-23-7.1-26 to the Indiana library
and historical department.
(c) (d) The department shall:
(1) maintain a current list of all department policies and
statements described in subsection (a) that the department may
use in the department's external affairs; and
(2) update the list at least one (1) time each month.
(d) (e) The department shall include the following information on
the list described in subsection
(c) (d) for each policy or statement:
(1) The title of the policy or statement.
(2) The identification number of the policy or statement.
(3) The date the policy or statement was originally adopted.
(4) The date the policy or statement was last revised.
(5) A reference to all other policies or statements described in
subsection (a) that are repealed or amended by the policy or
statement.
(6) A brief description of the subject matter of the policy or
statement.
(e) (f) At least one (1) time every three (3) months, the department
shall distribute two (2) copies of the list maintained and updated under
subsection
(c) (d) to the following:
(1) The publisher of the Indiana Register.
(2) The Indiana library and historical department.
SOURCE: IC 13-14-9-3; (03)HE1671.1.4. -->
SECTION 4. IC 13-14-9-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 3. The department shall
provide notice in the Indiana Register of the first public comment
period required by section 2 of this chapter. A notice provided under
this section must do the following:
(1) Identify the authority under which the proposed rule is to be
adopted.
(2) Describe the subject matter and the basic purpose of the
proposed rule. The description required by this subdivision must:
(A) include a listing of all alternatives being considered by the
department at the time of the notice;
and must
(B) include:
(i) a statement indicating whether each alternative listed
under clause (A) is imposed under federal law;
(ii) a statement explaining how each alternative listed
under clause (A) that is not imposed under federal law
differs from federal law; and
(iii) any information known to the department about the
potential fiscal impact of each alternative under clause
(A) that is not imposed under federal law; and
(C) set forth the basis for each alternative
listed under clause
(A).
(3) Describe the relevant statutory or regulatory requirements or
restrictions relating to the subject matter of the proposed rule that
exist before the adoption of the proposed rule.
(4) Request the submission of alternative ways to achieve the
purpose of the proposed rule.
(5) Request the submission of comments, including suggestions
of specific language for the proposed rule.
(6) Include a detailed statement of the issue to be addressed by
adoption of the proposed rule.
SOURCE: IC 13-14-9-4; (03)HE1671.1.5. -->
SECTION 5. IC 13-14-9-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4. The department shall
provide notice in the Indiana Register of the second public comment
period required by section 2 of this chapter. A notice provided under
this section must do the following:
(1) Contain the full text of the proposed rule, as provided under
IC 4-22-2-24(c).
(2) Contain a summary of the response of the department to
written comments submitted under section 3 of this chapter
during the first public comment period.
(3) Request the submission of comments, including suggestions
of specific amendments to the language contained in the proposed
rule.
(4) Contain the full text of the commissioner's written findings
under section 7 of this chapter, if applicable.
(5) Identify each element of the proposed rule that imposes a
restriction or requirement on persons to whom the proposed
rule applies that is not imposed under federal law.
(6) With respect to each element identified under subdivision
(5), identify:
(A) the environmental circumstance or hazard that
dictates the imposition of the proposed restriction or
requirement to protect human health and the
environment;
(B) examples in which federal law is inadequate to provide
the protection referred to in clause (A); and
(C) the:
(i) estimated fiscal impact; and
(ii) expected benefits;
based on the extent to which the proposed rule exceeds the
requirements of federal law.
(7) For any element of the proposed rule that imposes a
restriction or requirement that is not imposed under federal
law, describe the availability for public inspection of all
materials relied upon by the department in the development
of the proposed rule, including, if applicable:
(A) health criteria;
(B) analytical methods;
(C) treatment technology;
(D) economic impact data;
(E) environmental assessment data;
(F) analyses of methods to effectively implement the
proposed rule; and
(G) other background data.
SOURCE: IC 13-14-9-4.2; (03)HE1671.1.6. -->
SECTION 6. IC 13-14-9-4.2 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]: Sec. 4.2. Not less than fourteen (14) days before the date
of preliminary adoption of a proposed rule by a board, the
department shall make available to the board the fiscal analysis
prepared by the legislative services agency with respect to the
proposed rule under IC 4-22-2-28(c).
SOURCE: IC 13-14-9-4.5; (03)HE1671.1.7. -->
SECTION 7. IC 13-14-9-4.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 4.5. (a) Except for a
rule:
(1) that has been preliminarily adopted by a board in a form that
is:
(A) identical to; or
(B) not substantively different from;
the proposed rule published in a second notice under section 4 of
this chapter; or
(2) for which the commissioner has made a determination and
prepared written findings under section 7 or 8 of this chapter;
a board may not adopt a rule under this chapter until the board has
conducted a third public comment period that is at least twenty-one
(21) days in length.
(b) The department shall publish notice of a third public comment
period with the:
(1) text;
and
(2) summary;
and
(3) fiscal analysis;
that are required to be published in the Indiana Register under section
5(a)(2) of this chapter.
(c) The notice of a third public comment period that must be
published in the Indiana Register under subsection (b) must request the
submission of comments, including suggestions of specific
amendments, that concern only the portion of the preliminarily adopted
rule that is substantively different from the language contained in the
proposed rule published in a second notice under section 4 of this
chapter.
SOURCE: IC 13-14-9.5-1.1; (03)HE1671.1.8. -->
SECTION 8. IC 13-14-9.5-1.1, AS ADDED BY P.L.146-2001,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 1.1. (a) This section applies to the following:
(1) A rule that is required to receive or maintain:
(A) delegation;
(B) primacy; or
(C) approval;
for state implementation or operation of a program established
under federal law.
(2) A rule that is required to begin or continue receiving federal
funding for the implementation or operation of a program.
(b) A rule described in subsection (a) does not expire under this
chapter.
(c) In the seventh year after the effective date of a rule or an
amendment to a rule described in subsection (a), the department shall
publish a notice in the Indiana Register. The notice may contain a list
of several rules that have been effective for seven (7) years. A separate
notice must be published for each board with rulemaking authority. A
notice under this subsection must provide for the following:
(1) A written comment period of at least thirty (30) days.
(2) A request for comments on specific rules that should be
reviewed through the regular rulemaking process under
IC 13-14-9.
(3) A notice of public hearing before the appropriate board.
(4) The information required to be identified or described
under IC 13-14-9-4(5) through IC 13-14-9-4(7) in the same
manner that would apply if the proposed renewal of the
expired rule were a proposal to adopt a new rule.
(d) The department shall:
(1) prepare responses to all comments received during the
comment period; and
(2) provide all comments and responses to the board during the
public board hearing;
described in subsection (c).
(e) The board, after considering the written comments and
responses, as well as testimony at the public hearing described in
subsection (c), shall direct the department on whether additional
rulemaking actions must be initiated to address concerns raised to the
board.
(f) For the rules described in subsection (a) that are effective on or
before July 1, 2001, the notice described in subsection (c) shall be
published in the Indiana Register before December 31, 2008.
SOURCE: IC 13-15-4-1; (03)HE1671.1.9. -->
SECTION 9. IC 13-15-4-1, AS AMENDED BY P.L.138-2000,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 1.
(a) Except as provided in sections 2, 3, and 6
of this chapter, the commissioner shall approve or deny an application
filed with the department after July 1, 1995, within the following
number of days:
(1) Three hundred sixty-five (365) days for an application
concerning the following:
(A) A new hazardous waste or solid waste landfill.
(B) A new hazardous waste or solid waste incinerator.
(C) A major modification of a solid waste landfill.
(D) A major modification of a solid waste incinerator.
(E) A new hazardous waste treatment or storage facility.
(F) A new Part B permit issued under 40 CFR 270 et seq. for
an existing hazardous waste treatment or storage facility.
(G) A Class 3 modification under 40 CFR 270.42 to a
hazardous waste landfill.
(2) Two hundred seventy (270) days for an application concerning
the following:
(A) A Class 3 modification under 40 CFR 270.42 of a
hazardous waste treatment or storage facility.
(B) A major new National Pollutant Discharge Elimination
System permit.
(3) One hundred eighty (180) days for an application concerning
the following:
(A) A new solid waste processing or recycling facility.
(B) A minor new National Pollutant Discharge Elimination
System individual permit.
(C) A permit concerning the land application of wastewater.
(4) One hundred fifty (150) days for an application concerning a
minor new National Pollutant Discharge Elimination System
general permit.
(5) One hundred twenty (120) days for an application concerning
a Class 2 modification under 40 CFR 270.42 to a hazardous waste
facility.
(6) Ninety (90) days for an application concerning the following:
(A) A minor modification to a solid waste landfill or
incinerator permit.
(B) A wastewater facility or water facility construction permit.
(7) The amount of time provided for in rules adopted by the air
pollution control board for an application concerning the
following:
(A) An air pollution construction permit that is subject to 326
IAC 2-2 and 326 IAC 2-3.
(B) An air pollution facility construction permit (other than as
defined in 326 IAC 2-2).
(C) Registration of an air pollution facility.
(8) Sixty (60) days for an application concerning the following:
(A) A Class 1 modification under 40 CFR 270.42 requiring
prior written approval, to a hazardous waste:
(i) landfill;
(ii) incinerator;
(iii) treatment facility; or
(iv) storage facility.
(B) Any other permit not specifically described in this section
for which the application fee exceeds one hundred forty-nine
dollars ($100) ($49) and for which a time frame has not been
established under section 3 of this chapter.
(b) When a person holding a valid permit concerning an activity
of a continuing nature has made a timely and sufficient application
for a renewal permit under the rules of one (1) of the boards, the
commissioner shall approve or deny the application on or before
the expiration date stated in the permit for which renewal is
sought.
SOURCE: IC 13-15-4-11; (03)HE1671.1.10. -->
SECTION 10. IC 13-15-4-11, AS AMENDED BY P.L.184-2002,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 11. (a) If an applicant is operating pursuant to a
continuation of an existing permit pending determination of an
application for a new or renewed permit under IC 13-15-3-6, the
applicant may proceed under this section after notifying the
commissioner in writing of its intent to do so.
(b) If the commissioner does not issue or deny a permit within the
time specified under sections 1 through 6 of this chapter, the applicant
may proceed under this section. After reaching an agreement with the
commissioner or after consulting with the commissioner for thirty (30)
days and failing to reach an agreement, the applicant may choose to
proceed under one (1) of the following alternatives:
(1) The:
(A) applicant may,
except as provided in section 12.1 of this
chapter, request and receive a refund of a permit application
fee paid by the applicant; and
(B) commissioner shall do the following:
(i) Continue to review the application.
(ii) Approve or deny the application as soon as practicable.
(iii) Except as provided in section 12.1 of this chapter,
refund the applicant's application fee not later than
twenty-five (25) working days after the receipt of the
applicant's request.
(2) The:
(A) applicant may:
(i) except as provided in section 12.1 of this chapter,
request and receive a refund of a permit application fee paid
by the applicant; and
(ii) submit to the department a draft permit and any required
supporting technical justification for the permit; and
(B) commissioner shall do the following:
(i) Review the draft permit.
(ii) Approve, with or without revision, or deny the draft
permit in accordance with section 16 of this chapter.
(iii) Except as provided in section 12.1 of this chapter,
refund the applicant's application fee not later than
twenty-five (25) working days after the receipt of the
applicant's request.
(3) The:
(A) applicant may hire an outside consultant to prepare a draft
permit and any required supporting technical justification for
the permit; and
(B) commissioner shall:
(i) review the draft permit; and
(ii) approve, with or without revision, or deny the draft
permit in accordance with section 16 of this chapter.
SOURCE: IC 13-15-4-12.1; (03)HE1671.1.11. -->
SECTION 11. IC 13-15-4-12.1 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 12.1. An applicant may not
receive a refund of a permit application fee if the permit
application concerned the renewal of a permit.
SOURCE: ; (03)HE1671.1.12. -->
SECTION 12. [EFFECTIVE UPON PASSAGE] (a) As used in this
SECTION, "boards" refers to:
(1) the air pollution control board;
(2) the water pollution control board; and
(3) the solid waste management board.
(b) Before November 1, 2003, the environmental quality service
council shall:
(1) consider whether the rulemaking operations of the boards
are sufficiently independent of the influence of:
(A) the department of environmental management; and
(B) other state agencies or entities;
(2) consider the overall efficiency of rulemaking operations of
the boards; and
(3) submit its final report on the matters described in
subdivisions (1) and (2) to:
(A) the governor; and
(B) the executive director of the legislative services agency.
(c) As part of its consideration under subsections (b)(1) and
(b)(2), the environmental quality service council shall examine the
following:
(1) The composition of the boards.
(2) The appointing authorities for members of the boards.
(3) The extent to which the boards control staff who serve the
boards.
(4) The sources and availability of data concerning:
(A) the fiscal impact; and
(B) other aspects;
of proposed rules.
(5) The involvement of employees of:
(A) the department of environmental management; and
(B) other state agencies or entities;
in the rulemaking process.
(6) The procedures to initiate and adopt proposed rules.
(7) The procedures to determine which issues are addressed
in proposed rules and which issues are addressed in nonrule
policy documents.
(8) The requirements for public notice and public
participation in the rulemaking process.
(9) The means by which other states maintain independent
and efficient operations of environmental rulemaking entities.
(10) Any other matter the environmental quality service
council considers appropriate.
(d) This SECTION expires January 1, 2004.
SOURCE: ; (03)HE1671.1.13. -->
SECTION 13. [EFFECTIVE JULY 1, 2003] (a) IC 13-14-1-11.5(b),
as amended by this act, applies to proposed policies or statements
presented by the department of environmental management to the
appropriate board after June 30, 2003.
(b) The following, all as amended by this act, apply to proposed
rules for which the department of environmental management
provides notice in the Indiana Register of the first public comment
period required by IC 13-14-9-3, as amended by this act, after June
30, 2003:
(1) IC 4-22-2-28.
(2) IC 13-14-9-3.
(3) IC 13-14-9-4.
(4) IC 13-14-9-4.5.
(5) IC 13-14-9.5-1.1.
(c) This SECTION expires January 1, 2004.
SOURCE: ; (03)HE1671.1.14. -->
SECTION 14.
An emergency is declared for this act.
HEA 1671 _ Concur
Figure
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