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Tuesday, January 25, 2005
Ind. Decisions - More on IKEC v. IDEM
Below is a summary of Indiana-Kentucky Electric Corporation v. Commissioner, Indiana Department of Environmental Management (1/19/05 IndCtApp) prepared by Barnes & Thornburg LLP. The initial Indiana Law Blog entry is available here.
On January 19, 2005, the Indiana Court of Appeals issued an opinion in Indiana Kentucky Electric Co. (IKEC) v. Indiana Department of Environmental Management (IDEM), finding that in order to obtain a waiver from all sulfur dioxide (SO2) ambient monitoring requirements under 326 IAC 7-3-2, the source must show: (1) the SO2 ambient air quality standards is likely to be maintained in the future and (2) that there is at least one or more alternative sources of data available, besides ambient monitoring at the source, from which IDEM can determine the SO2 standards will be maintained.This case involved a request by IKEC for a waiver from all ambient SO2 monitoring because existing monitoring data and air dispersion modeling demonstrated the SO2 standards would continue to be maintained in the area. IDEM denied IKEC's request on the grounds that it could not determine whether the standards would continue to be met unless an SO2 ambient monitor was located within 10 kilometers of IKEC.
The Court of Appeals held IDEM's interpretation of the rule, which allowed a waiver of all monitoring requirements only if another entity within 10 kilometers was conducting ambient monitoring, was "so overly narrow as to be unreasonable." Consequently, the Court found that IDEM is required to consider other sources of data in determining whether SO2 standards will continue to be met in an area.
The Court also held that IDEM's policy requiring ambient monitoring be conducted no more than 10 kilometers from a source of SO2 emissions was an invalid rule. Because the policy was an agency statement of general applicability designed to have the effect of law, it should have been properly promulgated as a rule.
Finally, the Court held that the proper standard of review by the Office of Environmental Adjudication (OEA) of an IDEM decision is a de novo standard of review. OEA is not to give deference to an agency's interpretation of a rule.
Posted by Marcia Oddi on January 25, 2005 08:16 AM
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions