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IDEM’s Proposed CFR Update Rule to Incorporate Boiler MACT and CISWI Rules

10.01.2011

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On September 14, 2011, IDEM public noticed its Findings of Amendments to Rules Concerning References to the Code of Federal Regulations (“CFR”), LSA #11-472, in the Indiana Register. The rule proposes to update the CFR references in 326 IAC 1-1-3 and 326 IAC 11-8 from the 2010 edition of the CFR to the 2011 edition of the CFR. The rulemaking has been brought in accordance with IC § 13-14-9-8 (expedited rulemaking) which allows for only one public notice period and then allows IDEM to proceed straight to final adoption.

Although IDEM’s Office of Air Quality updates its CFR references annually, this year’s proposed rule is a bit different because it includes incorporation of both the Final National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers (“Boiler MACT”), and the Final New Source Performance Standards for Commercial and Industrial Solid Waste Incineration (“CISWI”) Units (76 FR 15608 and 76 FR 15704, respectfully, both published on March 21, 2011), along with U.S. EPA’s delay of the effective dates for both these rules at 76 FR 28662, published on May 18, 2011. IDEM does not appear to be under any pressing obligation to incorporate these stayed rules which are expected to change. In fact, the same day U.S. EPA published these rules, it also issued a notice to reconsider both of the rules. 76 FR 15266. On May 18, 2011, U.S. EPA then stayed the effective dates of both rules pursuant to Section 705 of the Administrative Procedures Act.

IDEM has proposed to incorporate both of these rules utilizing the expedited rulemaking procedures of IC 13-14-9-8, despite U.S. EPA’s statements in its Final Delay of Effective Dates Notice that “we believe the public did not have a sufficient opportunity to comment on certain revisions EPA made to the proposed rules.” Because IDEM has the capability of carving out portions of the 2011 CFR during incorporation, it is curious why it did not choose to carve out these two controversial rules and wait for U.S. EPA to make its revisions to them.

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