Beverly Gard: How an idea becomes a state regulation

One question I get since leaving the Senate and moving on to chair the Environmental Rules Board concerns the differences between statutes and rules and how they are adopted. Rules carry the same weight as statutes, but that is where the similarities end.

The process of environmental rule-making is very different than rule-making by other state agencies and markedly different than the process of adopting statutes. While statutes are adopted over the relatively short time span of a legislative session, environmental rule-making for one rule can extend two to three years or longer.

Environmental rule-making, in my opinion, results in a product that has fewer errors, provides for more stakeholder input and has a process for citizens to propose an idea for a rule. The ERB is made up of members from a variety of backgrounds, is balanced politically and has representatives of several state agencies. My experience is that partisan politics has not played a role in ERB decisions. There are also strict ethics requirements that board members must follow.

In my seven years on the ERB, there have been three citizen petitions for rulemaking. One was rejected because it was beyond the jurisdiction of the ERB. One went through the rule-making process and was adopted. The third was just presented in November and this is what I will spend some time talking about.

The required petition with 200 or more signatures was presented to the ERB along with a statement of reasons. Supporting documentation was also presented in the form of comprehensive letters from many mayors of cities in the northern half of Indiana. The petitioners are requesting that Indiana adopt the Recreational Water Quality Criteria—called RWQC—that was adopted by the U.S. Environmental Protection Agency in 2012. Indiana’s current RWQC is based on the EPA’S 1986 criteria. Indiana’s water quality standards continue to be some of the most stringent in the country.

The petitioners contend that updating the RWQC to match the EPA 2012 standards will provide certainty to the over 100 combined sewer overflow communities in Indiana. Additionally, petitioners say it would ensure that future investments in wastewater infrastructure are not wasted on massively expensive projects with little environmental benefit.

The ERB accepted the petition in November and now the Indiana Department of Environmental Management staff is verifying that the petition has the required 200 signatures and a statement of reasons.

The ERB must then determine whether the proposal meets the “not plainly devoid of merit” standard. If the ERB determines that the petition has merit, a hearing on the petition must be scheduled. The ERB may decide that multiple hearings are warranted. There is also the option of forming a committee to work on the issue and report findings and/or recommendations to the ERB. Ultimately, the ERB must decide whether to direct IDEM to start a rule-making process on the topic.

Because this is a complex issue, any rulemaking will not happen quickly. The ERB will want to ask multiple questions. Will this proposal compromise Indiana water quality for recreational activities? If not enacted, will Indiana be at a competitive disadvantage for economic growth? Why isn’t language in current statute safeguard enough to keep communities from spending huge amounts of money with little environmental benefit?

If the ERB votes to proceed with rule-making after public hearings, then the process proceeds as spelled out in statute. The process is slow, deliberative and allows for thorough studying of the merits of the issue along with ample time for public input.•

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Gard is a former Indiana state senator and chairs the Environmental Rules Board and the Indiana VW Mitigation Trust Fund Committee. Send comments to ibjedit@ibj.com.