After a successful debut in 2022, IDEM and the IndyBar Environmental Law Section hosted their second annual Update and Emerging Issues Seminar. The seminar brings IDEM staff and local practitioners together to discuss pressing topics outside the context of individual cases.
IDEM Commissioner Brian Rockensuess opened the event, providing details on the Department’s priorities and directions. He expressed gratitude for Governor Holcomb’s recent action increasing compensation for state employees, which has enabled IDEM to hire and retain extremely qualified candidates to step in the shoes of the veteran public servants who are retiring.
One priority, which the Commissioner said was a result of the Supreme Court’s Sackett decision earlier this year, was to tackle the Department’s wetlands permitting process. The Commissioner and Department have been partnering with a variety of stakeholders to streamline the application process—which can be confusing—so that it is more accessible to laypeople.
Another priority was to ensure Indiana’s voice is heard in the notice-and-comment rulemaking process at the federal level. By the end of the year, EPA will have issued around 70 air rules alone. IDEM has commented on a variety of those rules, bringing Indiana’s perspective to the national discussion.
Finally, the Commissioner observed the lengthy (12-15 year) average cleanup time for sites in the State Cleanup/VRP program and expressed his desire to cut that time in half. Dubbed Speedup the Cleanup, the Commissioner said he wants to try and eliminate some of the red tape and so-called “paper volleyball” that can extend the life of projects.
After the Commissioner concluded, IDEM staff dug into the substance.
Attorneys April Lashbrook and Mark Finley introduced a new Long-Term Stewardship program for sites with long-term exposure, modeled after the current closure/post-closure regulations that apply to landfills. The program would allow sites to formally “close”—reducing the burden on both the facility and IDEM—subject to continuing conditions that ensure adequate environmental protection. IDEM staff and practitioners discussed some of the practical issues with implementing the program and potential creative solutions. Sound interesting? Come next year!
Drake Abramson, IDEM’s Legislative Director, provided an update on the main pieces of legislation passed in the last Session. These included amendments to the Title V air permit program, ELTF legislation, and changes to the administrative rulemaking process. He provided a preview of what might happen in the next Session, including legislation on wetlands and electronic access.
Branch Chief Brian Wolff and Senior Attorney Sierra Alberts summarized the state of wetlands permitting in Indiana following the Sackett decision. He reported that the U.S. Army Corps of Engineers—which determines what wetlands are “federal” versus “state” wetlands—had suspended all decisions on that issue nationwide while it analyzes the Sackett rule. Absent a determination by the Corps that wetlands are not federally regulated, state agencies cannot proceed. Permittees can, of course, proceed as if the wetlands are federally regulated, and that is what many entities are doing while the federal agencies determine how to comply with Sackett.
Attorney Sarah Sharpe and Program Director David Schilling provided useful tips and updates about the new-and-improved Virtual File Cabinet, which was described as “not quite Google, but getting there.” The search interface was updated recently, so if you have not used the VFC recently, check it out. If you notice bugs, contact IDEM—they are aware of many issues but would benefit from user feedback.
Finally, Section Chief Mark Derf spoke about air quality issues resulting from the Canadian Wildfires. He explained the constituents and measurements used to document air quality. He also went into “weatherman mode” and explained why Indiana had experienced so many air quality issues due to the wildfires hundreds of miles away. The presentation concluded Attorney John Pritchard’s summary of how exceptional events are treated by EPA.
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