I'm confused after reading two editorials about the citizen mercury proposal pending before the Indiana air board, and a letter to the editor from IDEM Commissioner Lori Kaplan. I've got the rulemaking statutes in front of me. I'm going to set out a number of items and try to tie them together. It is not my intention to take a position one way or the other but simply get people to think in terms of the statutory requirements.
First, the 9/1/04 ILB entry titled "Indiana air board meeting turns contentious today." I was at that meeting. The entry lays out the basic issue -- the Hoosier Environmental Council submitted a petition to the Air board in June, pursuant to the provisions of IC 13-14-8-5, which allows citizen-initiated rulemaking ("for the adoption, amendment, or repeal of a rule") under certain conditions. If the conditions are met, "the board shall give notice and hold a hearing on the proposal."
The editorials I will quote below argue that a number of hearings need to be held throughout the state. I don't agree; I think that would only delay actual rulemaking. I think that the "hearing" before the board described in IC 13-14-8-5 is for one purpose only -- for the board to decide whether or not to direct IDEM to initiate a formal rulemaking on mercury emissions.
By "formal rulemaking", I mean one that complies with the statutes. The rulemaking law has very specific requirements that must be met. It is quite complex, as can be seen from these environmental rulemaking charts (overview -- center column) and (detailed -- a 2-page chart) I prepared some time ago. As is shown, the formal rule development process allows for several written comments periods, and a number of public hearings. It may take from one to two years to complete; the end result is a promulgated rule.
Anything else -- the public hearings/meetings the two editorials are calling for, the workgroup process that IDEM is proposing, may be useful but they are not a part of the formal statutory rulemaking process and do not lead to a formal rule.
Second, here are some quotes from the editorials and IDEM letter I mentioned earlier.
"One hearing won't cover mercury issue" is the headline to this editorial published Monday, Sept. 6th in the Indianapolis Star. Some quotes:
The state Air Pollution Control Board's decision to hold a public hearing on mercury emissions regulations is welcome news for those who believe this issue is too important to be left to specialists.I believe the Star editorial is based on a misunderstanding of the Indiana environmental rulemaking process.One hearing, however, is not enough. The board and its working group of environmentalists, business representatives and government agents have the option of adding hearings as the process goes on; they should exercise it.
It took public pressure, including a petition drive by the Hoosier Environmental Council, to move the board to hold a hearing, which is set for Oct. 6 in Indianapolis. Concerned citizens from elsewhere -- especially southern Indiana, where the electrical power plants that spew the bulk of mercury emissions are concentrated -- deserve reasonable access to the ears of the decision-makers.
Here is some of what the Evansville Courier-Press said last week (9/6/04):
The Issue: State plans only one public hearing on mercury rules. Our View: Apparently, officials don't give much weight to public input.IDEM Commissioner Lori Kaplan responded to the editorial in a letter published in the Evansville paper yesterday, Sept. 15th. Here are some quotes:Finally, the Indiana Air Pollution Control Board has agreed to have a public hearing on new rules aimed at reducing mercury pollution and, in addition, is planning a series of discussions with industry, environmentalists and others.
But that's not enough. * * *
But Janet McCabe, assistant commissioner in the Office of Air Quality at the Indiana Department of Environmental Management, said there would be a series of working-group discussions, and one public hearing, Oct. 6, in Indianapolis.
* * * The debate is not about whether Indiana should develop a mercury rule. The board has already indicated its intent to do so. The issue now becomes the substance of that rule, and we need more information before meaningful public debate can begin. * * *I'm confused. The letter says the board has already indicated its intent to adopt a mercury rule. If so, perhaps there is no need for any hearing; the board can simply direct IDEM to begin the rulemaking process under the law, by publishing a First Notice in the Indiana Register and asking for formal input. Once the formal rulemaking process is underway, workgroups can also be established to provide an additional forum for input. That is the normal practice on a complicated issue.Indiana will be greatly affected by any new regulation because it has a significant electric utility industry that relies heavily on Indiana coal to generate low-cost electricity. Utilities are the top producers of mercury emissions as part of their operations. And while we must address regulatory needs to protect human health, we must also keep in mind that the costs of that regulation will be borne by ratepayers, so the money must be invested in the best possible manner.
Because mercury emissions are easily transported from state to state, the best regulatory solution is one that is followed uniformly by all the states. IDEM chose not to recommend that the board pre-empt the federal government's mercury emissions rule-making process by adopting a state regulation. Not because it believes the issue can wait. Not because it believes these emissions do not need regulation. But because it made sense for it to try to influence the federal rule first, and then, once it is finalized, to address any flaws in that rule, which it then must accept as the foundation for state regulation.
IDEM looks forward to the board's public hearing, the workgroup's discussion and findings and any additional action that may be necessary as a result. The workgroup will include as many members of the public, the scientific community, and the environmental community as want to participate.
Indiana is on course to adopt mercury emission regulations. That process requires and will provide additional public hearings and opportunities for all Hoosiers to express their thoughts on the issue. I encourage all those who are concerned to be a productive part of the workgroup and to submit your comments throughout this process.
Third, here are a couple additional documents for those who have read this far.
Here is IDEM's workgroup proposal that I also posted Sept. 1st and described then thusly:
The dispute today involved a "Proposal for Mercury Rule Workgroup" (available here) prepared for the Board by IDEM, and in particular whether the IDEM proposal for proceeding corresponded to the process set out in the statute.And finally, the IDEM legal office published in the Indiana Register on June 1, 1995 (18 IR 2355-56) a NonRule Policy Document titled "APCB, WPCB, SWMB Citizen Rulemaking Petition Procedures." Access it here. You may observe that the process described parallels my understanding of the statutory requirements.
[Note that the environmental statutes were recodified and renumbered in 1996; IC 13-7-7-3 became IC 13-14-8-5.]
Posted by Marcia Oddi at September 16, 2004 06:00 PM