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Tuesday, January 16, 2007

Environment - SB 154 "What is ‘recycling’?" Plus the ILB's environmental rulemaking concerns

"What is ‘recycling’?" is the question asked by this Fort Wayne Journal Gazette editorial today. Some quotes:

[P]roposed legislation to review and potentially revise state environmental rulemaking policies has raised some concerns among environmental advocates – and for good reason.

They’re worried that the study will lead to a new definition of recycling in Indiana that could include incineration as an approved recycling method. Adding incineration to the definition of recycling could encourage companies to incinerate waste rather than recycle. The change could hurt recycling programs by shifting grant money to incineration programs and away from traditional recycling. * * *

Melissa Kriegerfox, the recycling and reuse director of the Monroe County Solid Waste Management District and president of the Indiana Recycling Coalition, said the recycling coalition supports the legislation. But the coalition has serious concerns about one sentence near the end of the proposed bill that includes investigating the addition of “waste to energy” in the definition of recycling. She thinks that sentence could redefine Indiana’s recycling policy, harm traditional curbside recycling programs and allow polluting companies to garner recycling credits for choosing to incinerate their refuse rather than recycling. She says this could encourage companies from other states to bring their waste to Indiana for cheap disposal.

“For Indiana to even consider including waste incineration in the definition upsets the recycling hierarchy and could really hurt the perception of recycling,” Kriegerfox said. She said recycling is very clearly defined by the U.S. Environmental Protection Agency and there is not a need for the state to redefine it.

The legislation is supposed to go to Energy and Environmental Affairs committee today. Kriegerfox said she spoke with Sen. Beverly Gard, the sponsor of the legislation, and asked her to change the language in the bill.

Gard, who has a reputation for being an environmental steward, appears willing to listen to the recycling coalition’s concerns.

IDEM should study recycling in Indiana and determine whether the state’s recycling programs are working. But there is not a need to redefine recycling, especially if it opens the door for incineration under the guise of a waste to energy program.

The proposal at issue is Senate Bill 154.

The ILB has concerns about other provisions in this legislative proposal.

Over the years, the environmental rulemaking process has become more and more complex, as one new requirement after another has been added to the process. Some of these were safeguards to assure an opportunity for transparency in public input at every step in the process, others were intended to ensure that the fiscal impact of the proposals was taken into consideration, etc. The result is that in many cases a new environmental rule or rule change has taken 18 months to two years to complete.

Now efforts are being made to shorten the process. However, this is a case where the cure (or, as here, cures) may be worse than the disease.

One reason for this is that the changes made just this last July in the publication process for rulemaking already has cut months off the length of the process.

The impact of these changes has not yet been fully understood. Under the current notice and comment environmental rulemaking process, notices are to be published in the Indiana Register, followed by comment periods, followed by hearings.

Before the July changes in the IR publication schedule, the Indiana Register was only published once a month, and documents to be published in the next month's issue had to be submitted by the 10th of the preceding month. Thus, if a notice of a 30-day comment period was submitted on Aug. 10, it would be published on Sept 1, and the comment period would end no sooner than Oct. 1.

Now, however, a notice submitted Aug. 10 could be published as soon as Aug. 11, and the 30-day comment period could end in early September. The various comment periods and public hearing notices involved in any particular rulemaking have thus rolled by very rapidly since July without much awareness on the part of those who may be impacted by the changes.

Add to this the Indiana Department of Environmental Management's move to aggressively use what are called the "section 7" and "section 8" (IC 13-14-9-7 and 8) already existing exceptions to the rulemaking law whereby the IDEM commissioner determines that the options available are so limited that (under sec. 7) public notice and comment would provide no substantial benefit, or (under sec. 8) that a federal provision is being incorrporated into Indiana law. In the former case, the first public comment period is eliminated, in the second case, both public comment periods are eliminated.

I say "aggressive" use because, for instance, of the last 10 new air rulemakings proposed by IDEM, only four will go through the 1st and 2nd notice and comments periods. Four will skip 1st notice and comment; two will skip both 1st and 2nd notice and comment.

As a result of these combined changes, several proposals which were first "published" October 11, 2006, will now be eligible for final adopton at the Air Board meeting set for Feb. 7, 2007. (And they could have been adopted in early January, if that meeting had not been cancelled.)

My point: Rather than make the additional changes to the environmental rulemaking process proposed by SECTIONS 1 through 4 of SB 154, give 2006's changes a little time to settle. SECTION 5 of the bill provides in part that:

(a) The environmental quality service council established under IC 13-13-7 shall study and make findings and recommendations concerning the following:
(1) Shortening the environmental rulemaking process for rules adopted under IC 13 by considering the following:
(A) Other state and local agency rulemaking processes.
(B) Other state environmental rulemaking processes.
(C) Negotiated rulemaking.
(D) Steps and requirements of rulemaking.
This is an excellent approach and would give the opportunity to assess the impact of the current changes before attempting to layer more on top of them.

Posted by Marcia Oddi on January 16, 2007 08:55 AM
Posted to Environment | Indiana Government | Indiana Law