IDEM says it can't make air pollution permits stricter. Experts say that's only partially true

Activists and concerned residents in Indiana are starting to challenge industrial facilities’ permits to pollute the air when they come up for renewal — like BP's Whiting Refinery.

But the Indiana Department of Environmental Management said it doesn’t have the authority to make these permits any stricter.

Former experts with the Environmental Protection Agency said there are some things IDEM could do.

IDEM has to operate within federal and state laws

Former EPA experts say — it’s true, IDEM can’t set stricter emissions limits for big industrial facilities without a change to federal or state laws.

The EPA sets emissions limits for major industrial facilities based on what category of facility it is. So an oil refinery is going to have different requirements under federal law than a steel plant.

The EPA also sets national air quality standards for things like ozone (which can form smog) and particle pollution (also known as soot).

Eric Schaeffer worked in EPA enforcement and founded the watchdog group the Environmental Integrity Project. He said any new federal or state rules are supposed to be added into the permits for these large industrial facilities about every five years.

Michael Koerber retired as deputy director in the EPA’s Office of Air Quality and once worked at the agency’s Midwest regional office. He said, if parts of Indiana aren’t meeting national air quality standards, IDEM is required to find a way to reduce pollution in those areas through what are called state implementation plans.

Those plans can include things like requiring industrial facilities to add better emissions control technology or change how often industrial plants can run.

Like many environmental laws, the Clean Air Act does allow states to set their own, tighter pollution restrictions. But Indiana and some other states have hamstrung their ability to do so.

What's often known as the "no more stringent than" law requires state regulators to go through several hoops in order to pass environmental rules that are stricter than federal ones. That includes notifying state lawmakers and allowing a whole legislative session to take place before they can be implemented.
 

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Though it's difficult to pass stricter rules, Schaeffer said it's something state regulators could try — especially when it comes to reducing emissions in Indiana communities that are overburdened by pollution.

What leeway does IDEM have without changing state, federal laws?

Schaeffer said there are parts of federal laws that are often up to state agencies to interpret.

For example, he said IDEM could decide to monitor a facility’s emissions more often to make sure they’re following the law and not emitting more than they're allowed. Schaeffer said that can do a lot to control pollution — and it's an area where many states are lacking.

He said if, say, a facility is required to emit no more than five pounds of particle pollution per hour, a state agency that only requires one smoke stack test every five years is likely not going to be as protective.

“You're doing one three-hour test, usually under ideal conditions, and then you're just going to assume your emissions will never be greater than that for five years? No way," he said.

Schaeffer said state regulators sometimes allow companies to modify their permits while failing to meet deadlines for renewals — which means the public has less of an opportunity to comment on those changes.

Koerber said IDEM can also make sure the public has access to all of the information that the agency is using to make its decisions. Activists in northwest Indiana have asked IDEM to make things like environmental justice analyses available before public meetings on these air permit renewals, but the agency hasn’t granted those requests yet.

Koerber said that info should be available before a permit has been finalized.

“They can't say, ‘Well, trust us, we'll show you our math later after we’ve actually issued the final permit.’ It’s like, no, you have to put it all out there and be very transparent," Koerber said.

IDEM declined requests for an interview.

Rebecca is our energy and environment reporter. Contact her at rthiele@iu.edu or follow her on Twitter at @beckythiele.