Indiana Senate approves sweeping administrative rulemaking overhaul

Despite pushback from environmental advocates, Indiana senators moved forward Monday with a bill that would give the General Assembly more power over rulemaking that is currently left to state agencies.

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.

Of greatest concern to some critics is language in the measure that seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.

The bill was voted out of the Senate 30-18, with bipartisan opposition. 

Bill sponsor Sen. Chris Garten, R-Charlestown, said the bill seeks to improve transparency, increase oversight, and simplify the rulemaking process. 

“As I travel around the state, I’ve spoken to many constituents … most of them, when I asked, ‘What’s your biggest concern in the state?’ — no matter where they’re from, Republican or Democrat — they say, ‘Don’t let us become like Washington.’ I think that’s something to coalesce around,” Garten said. “There’s not a lot of legislating going on in our nation’s capitol right now. But there’s a lot of executive orders. And there’s a lot of rulemaking. 

“House Bill 1623 is a monumental step in reforming our state’s rulemaking process, and provides the checks and balances and transparencies that Hoosiers expect and deserve,” he continued.

The bill now heads back to the House for final approval. It’s still not clear how where the governor stands on the proposal, should it make it to his desk, however.

“Each of their concerns warrant further inspection. And what I have done in the past is to say, show me the exact example of what you’re referring to, and what are we trying to fix?” Gov. Eric Holcomb said earlier on Monday about lawmakers’ intentions with the bill. “There is absolutely a need for oversight that comes with the appropriations that we’re entrusted with.”

Lawmakers get more say

Currently, decisions about pesticide use are left to the state chemist and Indiana’s Pesticide Review Board. 

Under the bill, the review board will still have “interim” rulemaking authority over new pesticides that hit the market. But after that, it’s up to the legislature to decide whether to adopt the rule permanently.

Another piece in the proposal 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.

Utilities lobbyists say the change is needed because a new coal ash disposal permitting program under consideration by IDEM oversteps current federal rules. 

Environmental advocates, on the other hand, say the draft IDEM proposal seeks to fill in gaps in federal rules — not supersede them.

“When we’re essentially saying, ‘Alright, we’re just going to limit IDEM to only what the federal government does,’ we are really, really limiting it,” said Sen. Rodney Pol, D-Chesterton. “The harmful effects of coal ash in my district have been really detrimental. I’ve got a lot of people that have contacted me — a lot of people that are very, very concerned as to what happens with coal ash.”

A large part of the bill would further 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. 

House Bill 1623 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. 

Other, more significant changes also stipulate that any proposed rule involving a fine, fee and penalty would first have to be approved by a five-member State Budget Committee.

Public hearings held on proposed rules would additionally have to be webcast, and citizens must have the opportunity to testify remotely. The legislature doesn’t allow remote testimony on their own bills. 

The latest draft of the legislation also allows Hoosiers to sue the Indiana Professional Licensing Agency for damages if they fail to adopt rules as required by law. 

“This bill gives me some consternation because we’re actually saying we want you to abide by the federal rules. Administrative rulemaking is a process that you think is convoluted at the state level. You could probably add another year to that at the federal level,” said Senate Minority Leader Greg Taylor, D-Indianapolis. “Do you think we should treat every environmental contamination the same in the state of Indiana? Because, quite candidly, some of the communities are going to suffer because of it.”