Type: Law Bulletins
Date: 03/09/2011

IDEM's Remediation Non Rule Policy, Tailoring Rule, and Other Updates

The Indiana Manufacturers Association’s Patrick Bennett, Vice President of Energy, Environment, and Infrastructure, arranged for an informative meeting with IDEM’s commissioners to provide an update on pending environmental laws, regulations, and non rule policies.  Participants included IDEM Commissioner Tom Easterly, IDEM Chief of Staff Kent Abernathy, and all of IDEM’s Assistant Commissioners: Office of Legal Counsel David Joest, Office of Air Quality Keith Baugues, Office of Land Quality Bruce Palin and Peggy Dorsey, Office of Water Quality Bruno Pigott and Martha Clark Mettler, and Pollution Prevention and Technical Assistance Rick Bussingham.  Below is a summary of some of the highlights of the February 24, 2011 meeting.

  • Remediation Non Rule Policy – Commissioner Easterly recently received the new "Remediation Non Rule Policy,” which will replace IDEM’s Risk Integrated System of Closure (“RISC”).  The Remediation Non Rule Policy implements House Enrolled Act 1162 and is designed to achieve the closure of contaminated sites through an approach using multiple lines of evidence.  The Policy is 462 pages long, and it will take Commissioner Easterly some time to review the policy and work with the assistant commissioners to finalize the policy.  A non rule policy is the department’s interpretation, supplementation, or implementation of a statute or rule.  Ind. Code § 13-14-1-11.5(a).  IDEM must publish its final proposal of the policy in the Indiana Register 45 days before it presents the policy to the Water Pollution Control Board, it must allow for public comment on the proposal, and the policy cannot be put into effect until 30 days after it is presented to the Board.  I.C. § 13-14-1-11.5(b).  An accompanying "User Guide" is still being developed.  IDEM expects the User Guide will be in final form to send to Commissioner Easterly for his initial review in the next few months.
  • Achieving Closure of Low Priority Sites – Because of the need to allocate resources to the most important sites, IDEM has hundreds of low priority sites that are simply being worked on as time and resources allow.  The quickest way to achieve no further action closure on a low priority site is to make sure you have followed IDEM’s Environmental Restrictive Covenant (“ERC”) template.  The ERC template has been reviewed and approved by the Indiana Attorney General’s Office and submission of any other form will require special review and delay closure.
  • Coal ash – IDEM is still waiting for EPA guidance on the regulation of coal ash.  Coal ash should not be regulated as hazardous waste.     


  • Antidegradation – The Office of Water Quality just finished finalizing its response to public comments and sent the final draft rule to Commissioner Easterly for his review.  Commissioner Easterly explained that de minimis will be set at 10% for individual discharges and the cumulative cap.  There will be exemptions for new or increased discharges that are less than that threshold for significant lowering of water quality.  And, certain exemptions will be deemed to meet the social, economic, and technical threshold tests.  The new antidegradation rules will trigger the fiscal analysis requirement and require review by the Office of Management and Budget.
  • Nutrients – U.S. EPA has examined up to twenty Illinois NPDES permits that fail to have a numeric nutrient criteria. Despite having no credible science to support the nutrient rules, U.S. EPA continues to push this issue.  EPA adopted numeric nutrient criteria in Florida and lawsuits followed.  Wisconsin adopted numeric limits for nitrogen, while Ohio has proposed numeric nutrient limits for nitrogen and phosphorus for certain water bodies. 


  • Tailoring Rule – After IDEM adopted an emergency rule to have the authority to issue greenhouse gas (“GHG”) permits, U.S. EPA found a minor wording issue with the statue and has asked that the emergency rule be revised.  IDEM will adopt this new language and continue to have authority to issue GHG permits.  EPA expects IDEM to include its authority to permit GHG in its State Implementation Plan (“SIP”).  If the basis to regulate GHGs is withdrawn by the federal legislature or Supreme Court action, it is believed that IDEM would not enforce its GHG permitting rules.  However, if such regulations are included in the SIP, others may be able to force compliance with the Tailoring Rule. 
  • GHG PSD Permitting – Starting January 3, 2011, the Prevention of Significant Deterioration (“PSD”) rules required companies otherwise discharging a criteria pollutant to apply for a GHG PSD permit if they discharged more than 75,000 metric tons of GHG.  Companies discharging more than 100,000 metric tons of GHG (even if they do not discharge a criteria pollutant) must apply for a Title V permit or have applied for and been granted a permit modification so that they are protected by January 1, 2012.  IDEM has thus far received three GHG PSD permit applications, and the permits are subject to EPA’s BACT Guidance.
  • SO2 – There is a new one hour standard.  Nine Indiana counties will likely fail to comply with the new attainment standards, and IDEM is working on a plan with the utilities in these counties to bring them into compliance.

For more information on participating in IDEM’s rulemaking process and IDEM’s new laws and regulations, please contact Bill Wagner or any member of Taft’s environmental practice group.

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