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Friday, July 13, 2007

Ind. Gov't. - "State ethics panel OKs pollution panelist"

The Indiana Air Pollution Control Board (APCB) includes 4 "ex officio" voting members (representing the heath commissioner, the DNR director, the lieutenant governor, and the secretary of commerce. In addition, the applicable law, IC 13-17-2-2, provides for 8 additional members to be appointed by the governor "based on recommendations from representative constituencies. ... An individual appointed under this subdivision must possess knowledge, experience, or education qualifying the individual to represent the entity the individual is being recommended to represent."

Additional requirements are that "Not more than four (4) of the appointed members of the board may be members of the same political party." IC 13-17-2-3 [See footnote at the end of this entry on this point.]

IC 13-17-2-4 provides that the board must have at least "a majority of members who represent the public interest." I'm not at all sure what that means. Furthermore, a majority of members may not "derive any significant part of their income from persons subject to permits or enforcement orders under the federal Clean Air Act."

Finally, IC 13-17-2-5 requires that "Each board member shall fully disclose any potential conflicts of interest relating to permits or enforcement orders under the federal Clean Air Act." Nothing is said about recusal, however.

Here is a list of current APCB members.

Why is the makeup of the APCB important? Because all authority regarding the adoption and revision of state air pollution control rules in Indiana is vested in the APCB.

A story today in the Fort Wayne Journal Gazette, reported by Niki Kelly, looks at a challenge to one of the members of the board voting on an upcoming rule. From the story:

Jeffrey Quyle, a Morgan County commissioner since 2001, was appointed by Gov. Mitch Daniels on April 10 as the local government representative to the 12-member board.

But he also is the economic development coordinator for Hoosier Energy REC Inc.

Several advocates for a stronger regulation want Quyle to recuse himself from voting because his employer has a clear financial interest in the outcome of the vote.

Indiana’s conflict of economic interest law says that a state appointee may not participate in any decision or vote if the appointee has knowledge that a business organization for which the appointee works has a financial interest in the outcome of the matter.

But Cyndi Carrasco, executive director of the state ethics commission, said the definition of financial interest relates to sales, leases or contracts that would directly benefit the company, not an administrative rule.

She also made a distinction between a rule that applies to an entire industry versus a specific vote affecting only Hoosier Energy.

More from the story:
Though clearly bothered by the appearance of impropriety, the State Ethics Commission on Thursday ruled that a member of the Indiana Air Pollution Control Board is allowed to vote on an upcoming mercury emissions rule.

The pollution control board is considering whether to move forward with a federal minimum for mercury emissions reduction rather than a more stringent regulation sought by environmental advocates.

Power plants are the largest source of mercury emissions in the U.S., and Indiana’s power plants have a particularly high national rate for the emissions.

To meet the more stringent regulations would likely cost the power companies millions of dollars more.

It is not clear to the ILB from today's account whether the ethics commission was applying the conflicts provision in the APCB law cited above, or whether it was applying the ethics and conflicts of interest law set out at IC 4-2-6, and specifically IC 4-2-6-9 and 10, or whether both sets of prohibitions were considered. [Note: On re-reading, it looks like the commission was considering the applicability of the Title 4 provisions, rather than those in Title 13.]

The website of the state Ethics Commission is singularly unhelpful. This is no indication that the commission even met on Thursday, no agenda, and no minutes or other account, so far as the ILB can determine. The site of the Inspector General does note an upcoming Ethics Commission meeting on July 12th, but nothing more (lower right-hand corner). Apparently the public meeting requirements do not apply to the Ethics Commission.

_______________
Footnote re political affiliation of environmental board members. The ILB posted on Oct. 18, 2005:

The Indiana environmental board laws have similar requirements. For instance, the law creating the state Water Pollution Control Board (WPCB) provides that the Board shall have 12 members. Four of these serve ex officio (by virtue of their office). Eight are appointed by the Governor. IC 13-18-1-3 requires: "Not more than four (4) of the appointed members of the board may be members of the same political party."

In my experience, just as the Star found with the Education Board, it is not easy to ascertain whether the WPCB membership, at a particular point in time, meets the requirements of IC 13-18-1-3. The job of the WPCB is to adopt the state's water rules. Would it be possible to successfully challenge the validity of a newly adopted water rule on the basis that the Board was improperly constituted?

Posted by Marcia Oddi on July 13, 2007 07:13 AM
Posted to Environment | Indiana Government | Indiana Law