By Jaime K. Saylor, Hatchett & Hauck LLP
Originally passed by the General Assembly in 2016 but vetoed by then-Governor Pence, House Enrolled Act (HEA) 1082 called for a process where new IDEM rules determined to be more restrictive than federal standards would not become effective until the end of the next legislative session, providing lawmakers the chance to review those proposed stricter rules. In February 2017, both the House (65-29) and the Senate (49-1) voted to override Governor Pence’s 2016 veto. In Indiana, the General Assembly can override a veto with a simple majority, meaning HEA 1082-2016 is now law roughly a year after its original passage.
The early drafts of the 2016 legislation would have presented a greater bar to IDEM adopting any rules which were more stringent than federal rules. While there was support for this by many members of the regulated community, others viewed it as giving up the state’s right to address its own environmental concerns. Subsequent amendments by the Senate – including that “more stringent” IDEM rules would merely be delayed rather than forbidden – resulted in what proponents considered to be a reasonable compromise. However, the Flint, Michigan water crisis loomed large in the background. Citing his concern that HEA 1082 would hinder IDEM’s ability to act in environmental emergencies like the Flint crisis, Governor Pence vetoed the bill.
While the law does carve out from this “more stringent than” review certain emergency rules or actions, the effect that this new law may have on IDEM’s broader ability to regulate in Indiana is unclear. The law also requires IDEM to include in an annual report to the Legislative Services Agency any new or altered operating policy or procedure and any proposed or newly effective nonrule policy or statement “that constitutes a change in the policy previously followed by [IDEM].” While these policy changes do not appear to be subject to the implementation delay now required for IDEM rules, they will now be subject to the broader political process, where more scrutiny by interested parties can be expected.
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