EnviroNotes

By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

The Indiana Department of Environmental Management ("IDEM") is seeking to reduce the administrative burdens of permit renewals by proposing to extend the permit terms for renewals of federally enforceable state operating permits (“FESOPs”) and minor source operating permits (“MSOPs”) from five years to ten years. The proposed rule was published in the Indiana Register on November 1, 2006.

Indiana law grants the IDEM the authority to issue renewal permits for terms of 10 years, but until this rulemaking the IDEM has declined to do so. IC § 13-15-3-2 states that the IDEM shall issue original permits for terms not exceeding five years, but allows the Air Pollution Control Board to adopt rules allowing for permits to be renewed for terms not exceeding ten years. The IDEM has now decided to act upon this authority and the proposed rule seeks to lengthen the terms of renewal FESOPs and MSOPs to ten years. Renewals of Title V permits are not covered by the proposed rule and will continue to have a term of five years. New FESOPs and MSOPs will continue to be issued for an initial term of five years.

The IDEM first considered extending the renewal terms for FESOP and MSOP permits as an incentive for participants in IDEM’s new Environmental Stewardship Program (“ESP”). The ESP, which was final adopted by the Air Pollution Control Board on February 7, 2007, allows the 10-year renewal terms for FESOPs and MSOPs as an incentive to qualified participants who agree to perform beneficial environmental projects above what is required by Indiana law. With this rulemaking, the IDEM has decided to make this benefit available to all FESOP and MSOP holders, regardless of whether they are ESP participants. In the Notice of Second Comment Period, the IDEM stated that it expends a large amount of IDEM permitting resources processing FESOP and MSOP renewals and that this rule will provide time and cost savings to the agency.

The proposed rule is scheduled to be considered for preliminarily adoption at the March 7, 2007 Air Pollution Control Board meeting. Final adoption is expected to be scheduled for August or September of 2007.

A copy of the proposed rule can be obtained from the Indiana Register website at here.

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