Utilities lobbyists say the changes in House Bill 1623 are needed because a new coal ash disposal permitting program under consideration by IDEM oversteps current federal rules. (Getty Images)
Indiana lawmakers want to give the General Assembly more power over decisions that are currently left to state agencies — a move that some advocates say would put Hoosiers’ health and environment in jeopardy.
Major provisions in the latest draft of House Bill 1623 would change the way state agencies adopt regulations that implement state or federal laws. That includes revisions to the process for adopting emergency rules, and shortening the time period when rules must be readopted.
A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.
Rep. Steve Bartels, R-Eckerty, said his bill seeks to “streamline” rulemaking. But critics maintain it would make the rulemaking process more burdensome.
“(This bill) is hours of compromise … focusing on transparency, protection of our citizens and businesses, while standardizing our government procedures, saving time, and making our government more efficient,” Bartels said when discussing the bill in February.
The bill advanced 6-4 Wednesday from the Senate Judiciary Committee with no votes from three Democrats and one Republican, Sen. Sue Glick, R-LaGrange. The measure now heads to the chamber floor.
Limits on banned pesticides
Currently, decisions about pesticide use are left to the state chemist and Indiana’s Pesticide Review Board (IPRB) — which consists of 17 to 18 governor-appointed voting members and three non-voting advisory members.
Part of that job includes determinations over which pesticides should be generally allowed for use by homeowners, for example, and which should be “restricted,” meaning only certified applicators can apply those chemicals. Farmers often seek the credentials to apply certain pesticides to protect crops.
Under the amended bill, the review board will still have “interim” rulemaking authority, Bartels said. If a new pesticide hits the market and is already on the EPA’s list, the IPRB can create temporary rules to further restrict its use in Indiana, too.
But after that, it’s up to the legislature to decide whether to adopt the rule permanently.
“I think that actually puts the ability to restrict something back in the General Assembly’s hands,” Bartels said. “Through our process of creating laws, we would actually have public hearings and we would make that decision. I think the intent here across the board is, broadly, the General Assembly wants to take control if there’s going to be restrictions, fines or fees against our citizens and businesses. That’s our responsibility, not agencies’.”
Multiple lawmakers on the Senate Judiciary Committee – and on both sides of the aisle — expressed reservations about taking over pesticide restrictions.
Sen. Greg Taylor, D-Indianapolis, emphasized that he doesn’t “know anything about pesticides.”
“I don’t want to be a full time legislature,” Taylor continued. “I hope we aren’t creeping down that path.”
Jeff Cummins, the director of state and government relations for the Indiana Farm Bureau, said the language would likely benefit lawn and landscape professionals, but won’t impact those in agricultural settings.
“As far as we’re concerned, this is a process question. What should the process be for changes in these pesticide restrictions?” Cummins told the Indiana Capital Chronicle. “I don’t see an impact here where we would lose access to a product because this process has changed.”
He added that as long as agencies like the state chemist’s office and Board of Animal Health can act with “due swiftness” in emergencies, the Farm Bureau “is OK with this rulemaking reform that the legislature wants to do.”
Chris Gibson, speaking on behalf of the Indiana Outdoor Management Alliance, told the Capital Chronicle that the group has been “tracking” House Bill 1623, but they do not have a position on the amendment.
Hampering coal ash cleanup
Another piece in the amended bill targets the Indiana Department of Environmental Management (IDEM), preventing the state agency from adopting coal ash disposal rules that are “more stringent” than those set by the EPA.
In 2015, lawmakers strengthened Indiana’s coal ash disposal rule and stipulated that IDEM can make rules “consistent with” the regulations set forth by the EPA. The bill would go a step further, saying IDEM “shall not impose a restriction or requirement that is more stringent than” the EPA’s, nor can the state agency make a rule that isn’t already set at the federal level.
Utilities lobbyists say the change is needed because a new coal ash disposal permitting program under consideration by IDEM oversteps current federal rules.
If the rule takes effect, Matt Bell with Ohio Valley Electric, which operates a power plant in Madison County, maintained that plants will have to choose whether to comply with federal or state regulations.
“IDEM interprets the law differently than what I believe was legislative intent, which is to say that our rules will not be more stringent than corresponding federal rules,” Bell said. “This is a proposed rule that, if enacted, would immediately put us into a state of non-compliance, because we would not be able to adhere concurrently to the federal rule and more stringent state standard.”
When asked why the utility doesn’t file a lawsuit to challenge IDEM, Bell emphasized that the rule has not yet been imposed.
“What we’re asking is before the rule is imposed, legislators simply reemphasize what was said before, which is that our environmental rules will not be more stringent than corresponding federal rules,” Bell said.
But environmental advocates say the draft IDEM proposal seeks to fill in gaps in federal rules — not supersede them.
“Most of the (IDEM) rule sections that fill in the gaps are simply applying existing landfill requirements to coal ash impoundments,” said Tim Maloney, senior policy director for the Hoosier Environmental Council. “This is not just some minor provision in this bill. This makes a major change to state oversight capacity for coal ash.”
Lindsay Haake, representing the Citizens Action Coalition, said that while her group typically advocates for Hoosier ratepayers, they oppose the bill due to “quality of life and quality of place issues.”
IDEM did not testify on the bill in committee and declined an Indiana Capital Chronicle request for comment, saying the agency does not speak out on pending legislation.
Cracking down on agency rulemaking
A large part of the bill would additionally revamp administrative rulemaking more broadly. This is the process used by all state agencies to implement Indiana policy. There are both emergency and regular procedures. Once adopted, rules last seven years.
But lawmakers have increasingly pushed back against rules that agencies adopt — especially ones that involve fines, fees and penalties on citizens.
Bartels said the bill is about the legislature being proactive and taking more responsibility when it comes to limiting citizens – “that’s our job.”
The bill standardizes comment periods, reduces rule length to five years before a readoption process, requires publication of a regulatory analysis at the same time of the proposed rule and gives the Attorney General the ability to block emergency rules, which will now be called provisional.
There are some more significant changes, though. For instance, any proposed rule involving a fine, fee and penalty would first have to be approved by a five-member State Budget Committee.
In the amendment added this week, it requires public hearings held on proposed rules to be webcast and citizens must have the opportunity to testify remotely.
The legislature doesn’t allow remote testimony on bills, and even made citizens come to the Statehouse during COVID-19 in 2021.
That amendment also now allows Hoosiers to sue the Indiana Professional Licensing Agency for damages if they fail to adopt rules as required by law.
Glick said the committee vote on the bill was premature — “I would like to see this bill held to clarify many of the issues that have been brought forward today. It is far reaching, and it will affect many areas that weren’t even discussed today. And for that reason, I vote no on the bill.”
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