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IDEM Prepares Overhaul to Air Permitting Rules

10.01.2009

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On July 27, 2009 the Indiana Department of Environmental Management (“IDEM”) published the long-awaited first notices of rulemakings to overhaul Indiana’s air permitting rules found in 326 Indiana Administrative Code 2 (“Article 2”). IDEM plans to address changes to Article 2 in two separate rulemakings: the Long-Term Article 2 Rulemaking (LSA #09-492); and the Near-Term Article 2 Rulemaking (LSA #09-493). In addition to these new rulemaking actions, IDEM second noticed its Article 2 Fix-Up Rule (LSA #07-372) on September 3, 2009 to make changes and corrections to address the United States Environmental Protection Agency’s (“U.S. EPA”) identified deficiencies and comments regarding the federal approveability of certain permitting rules as well as address other consistency issues.

Long-Term Article 2 Rulemaking (LSA #09-492)
The IDEM's Long-Term Article 2 Rulemaking will include amendments IDEM has categorized as requiring more extensive deliberation and consultation than the Near-Term Article 2 Rulemaking. The types of changes that might be included in this rulemaking, include but are not limited to:

  1. Combining or streamlining, or both, overlapping permit programs;
  2. Adding permit revision applicability to clearly define what would trigger a higher permit level. For example, revisions to 326 IAC 2-9 could allow a federally enforceable state operating permit source to lower its limits without being considered a significant modification; and
  3. Removing unnecessary steps in the permit process. For example, deleting administrative requirements that are not required by federal rule or state statute and that do not provide value to the public or the applicant.

Near-Term Article 2 Rulemaking (LSA #09-493)
The Near-Term Article 2 Rulemaking will include amendments that IDEM believes can be adopted in an expeditious manner. The types of changes that might be included in this rulemaking, include but are not limited to:

  1. Consolidating or revising definitions of the same term or similar terms to ensure consistency among rules;
  2. Adding definitions for terms used in 326 IAC 2 that currently are not defined. For example, Article 2 has different requirements for environmentally significant changes to monitoring but does not define the term "environmentally significant"; and
  3. Revising applicability language to allow for a notice-only change, an administrative amendment, a minor revision, or minor modification for a change that is clearly not significant. This would include changes to clarify when the addition of a new or revised federal requirement to permits can be accomplished through an administrative amendment, a minor revision, or a minor modification.

Article 2 Initiative Workgroup
IDEM has established an Article 2 Initiative Workgroup to address the Near and Long-Term Rulemakings. In addition to providing comments on recommended changes to the permitting rules, the Workgroup will assist IDEM in determining which issues should be addressed in each rulemaking. The Workgroup held its first meeting on September 16, 2009 and plans to meet approximately every six (6) weeks.

During the first Workgroup meeting IDEM announced that the following criteria will be applied to each recommended rule change to determine if the change will be addressed under the Near-Term or Long-Term rulemakings:

  1. EPA approvability;
  2. Accommodation of the rulemaking timeline;
  3. Ease of implementation; and
  4. Level of controversy.

Persons wishing to participate in the Workgroup have been asked to submit their recommended changes to Article 2 via email to Amy Smith at asmith@idem.in.gov by October 7, 2009 so that the Workgroup members can consider same before and during the next Workgroup meeting on October 29, 2009. 

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