Sierra Club — “IDEM wants to change the way you see air permit proposals, and the public is not happy”

Emily Hopkins and Sarah Bowman, “IDEM wants to change the way you see air permit proposals, and the public is not happy,” IndyStar May 17, 2018

For decades, the state’s environmental regulators have been required to notify Hoosiers whenever a proposed polluter seeks a permit by publishing a notice in the local newspaper.

But that requirement has been lifted and the Indiana Department of Environmental Management wants to make a change — one that some environmental advocacy groups worry will make it more difficult for Hoosiers to learn about issues that could have a significant impact on their health.

Specifically, IDEM proposes doing away with newspaper notices, relying instead on its own website to inform the public — a website that receives only about 100 unique visitors a week.

That’s a sharp contrast to the more than 3 million Hoosiers who read a newspaper or newspaper site each week, according to the Hoosier State Press Association.

“This decision would be in contradiction of Governor [Eric] Holcomb’s pledge to deliver ‘great government service,'” said Jesse Kharbanda, executive director of the Hoosier Environmental Council. “Keeping large swathes of Hoosiers in the dark is the opposite of great government service.”

IDEM argues that making this change will expand public access to permit-related documents and decisions because more people are using the internet.

Some environmental agencies, however, say the notion of greater internet use leading to expanded access is “wrong.”

More than 23 percent of Hoosiers do not use or have access to internet, according to the National Telecommunications and Information Administration. That means that nearly 1.5 million Indiana citizens would not be able to access public notice of hearings under IDEM’s new rule.

“IDEM wrongly suggested that its proposed rule might expand access to agency decision-making,” Tony Mendoza, a staff attorney for Sierra Club’s Environmental Law Program said in his comments. “This is incorrect because the agency already provides e-notice … accordingly, there are no actual benefits of the proposed rule other than saving IDEM some money.”

The agency has also said this proposal would save it time associated with public notification as well as roughly $17,000 in costs. Still, Kharbanda said this rule change does not weigh the costs of a less informed public.

“Is saving far less than a penny per Hoosier per year worth the risks to Hoosier health that come with far less accessible information?” he asked. “Government has a responsibility to actively, extensively, and accessibly inform the public about its decision-making, especially when those decisions could impact the air that kids, senior citizens, expectant mothers, and those facing chronic illness could breathe.”

Kharbanda, along with the Hoosier press association and Public Notice Resource Center, have submitted comments to IDEM opposing this change.

Center executive director Richard Karpel said a case in Michigan last year shows just how important newspaper notification can be.

Nestle Water was requesting to pump more groundwater for its Ice Mountain bottling plant, which the state’s Department of Environmental Quality published notice of on its website.

That notice generated no public comment for 42 days. Yet, three days before the public comment period closed, an article published in the local Grand Rapids Press on the request brought the issue to the public’s attention — and resulted in more than 80,000 comments being submitted to the agency.

“People don’t go to government websites regularly, and that is a perfect example of how these sorts of things happen,” Karpel said. “If your concern is making sure people hear about this stuff, then it doesn’t make sense at all to take it out of the newspapers.”

Taking the notice out of print newspapers also removes it from the papers’ websites, the executive director added, which get significantly more traffic and traction.

“It’s counterintuitive,” he continued, “and IDEM is going to shoot themselves in the foot.”

Ryan Clem, IDEM’s director of communications, emphasized via email that while the rule change would allow the agency to forgo publishing notices in newspapers, it would not prohibit them from doing so. He said the agency has no way to know how many people submit comments because they saw a notice online or in a newspaper.

The agency’s move is based on a 2016 decision by the U.S. Environmental Protection Agency that lifts the requirement for agencies to provide public notice of certain air draft permits through newspapers.

Although EPA lifted that requirement, the final rule included no legal obligation to terminate newspaper notification, Mendoza with Sierra Club said.

IDEM initially proposed the change last fall. It received 553 responses during its first public comment period. Almost all of them — 551, to be exact — asked IDEM to continue publishing the notices in newspapers.

In response to the hundreds of comments protesting the proposal, IDEM said that the decision was based on the fact that the newspaper industry has a declining circulation, and that it does not expect the change to seriously impact access to the notices, which are currently publishes on its website in addition to local newspapers. Even people who do not have a computer or who have limited internet access, the response continued, would be able to access IDEM’s notices by visiting a library.

The agency’s response also mentions that people who would like to avoid the electronic experience can have notices mailed directly to their homes or businesses. It is unclear how this would be cost effective at scale, however.

In addition to cutting costs, IDEM hopes to eliminate delays that it said can occur when newspapers fail to publish notices on time.

“If you are part of a bureaucratic machine, sometimes you forget that your purpose is to serve the public. Instead it’s about making (your) job easier,” said Steve Key, executive director of the Hoosier State Press Association. Key said that his organization is ready and willing to work with IDEM to smooth out the notice publishing process where problems arise.

The second public comment period for the proposal closes Friday, May 18. Those who wish to do so can submit comments in the following ways:

By mail to
    LSA Document #17-395
Electronic Notice for Air Permits
Keelyn Walsh
Rules Development Branch Office of Legal Counsel
Indiana Department of Environmental Management
Indiana Government Center
North 100 North Senate Avenue
Indianapolis, IN 46204-2251

By facsimile to (317) 233-5970. Please confirm the timely receipt of faxed comments by calling the Rules Development Branch at (317) 232-8922

By email to kwalsh@idem.in.gov

By hand to the receptionist on duty at the thirteenth floor reception desk, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Indianapolis, Indiana. 

All comments must be postmarked, faxed, or time stamped no later than May 18, 2018. Hand-delivered comments must be delivered to the appropriate office by 4:45 p.m. on the above-listed deadline date.

Emily Hopkins and Sarah Bowman cover the environment for IndyStar. Contact Emily at (317) 444-6409 or emily.hopkins@indystar.com. Follow them on Twitter: @_thetextfiles. Call Sarah at (317) 444-6129. Follow her on Twitter and Facebook: @IndyStarSarah.

IndyStar’s environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.

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