IN Code § 13-14-9-8 (2021)
2021 Indiana Code|Title 13. Environment|Article 14. Powers and Duties of Department of Environmental Management and Boards|Chapter 9. Rulemaking Procedures|13-14-9-8. Special Rulemaking Process for Certain Rules; Findings; Notice; Hearing; Rule Based on Nullified Federal Law or Regulation

Sec. 8. (a) Except as provided in subsection (g), unless a board determines that a proposed rule should be subject to additional comments or makes a determination described in subsection (f), sections 2 through 7 and sections 9 through 14 of this chapter do not apply to a rulemaking action if the commissioner determines that:(1) the proposed rule constitutes:(A) an adoption or incorporation by reference of a federal law, regulation, or rule that:(i) is or will be applicable to Indiana; and(ii) contains no amendments that have a substantive effect on the scope or intended application of the federal law or rule;(B) a technical amendment with no substantive effect on an existing Indiana rule; or(C) an amendment to an existing Indiana rule, the primary and intended purpose of which is to clarify the existing rule; and(2) the proposed rule is of such nature and scope that there is no reasonably anticipated benefit to the environment or the persons referred to in section 7(a)(2) of this chapter from the following:(A) Exposing the proposed rule to diverse public comment under section 3 or 4 of this chapter.(B) Affording interested or affected parties the opportunity to be heard under section 3 or 4 of this chapter.(C) Affording interested or affected parties the opportunity to develop evidence in the record collected under sections 3 and 4 of this chapter.(b) If the commissioner makes a determination under subsection (a), the commissioner shall prepare written findings under this section. The full text of the commissioner's written findings shall be included in:(1) the notice of adoption of the proposed rule; and(2) the written materials to be considered by the board at the public hearing held under this section.(c) The notice of adoption of a proposed rule under this section must:(1) be published in the Indiana Register; and(2) include the following:(A) Draft rule language that includes the language described in subsection (a)(1).(B) A written comment period of at least thirty (30) days.(C) A notice of public hearing before the appropriate board.(d) The department shall include the following in the written materials to be considered by the board at the public hearing referred to in subsection (c):(1) The full text of the proposed rule as most recently prepared by the department.(2) Written responses of the department to written comments received during the comment period referred to in subsection (c).(3) The commissioner's findings under subsection (b).(e) At the public hearing referred to in subsection (c), the board may:(1) adopt the proposed rule;(2) adopt the proposed rule with amendments;(3) reject the proposed rule;(4) determine that additional public comment is necessary; or(5) determine to reconsider the proposed rule at a subsequent board meeting.(f) If the board determines under subsection (e) that additional public comment is necessary, the department shall publish a second notice in accordance with section 4 of this chapter and complete the rulemaking in accordance with this chapter.(g) If the board adopts the proposed rule with amendments under subsection (e)(2), the amendments must meet the logical outgrowth requirements of section 10 of this chapter, except that the board, in determining whether the amendments are a logical outgrowth of comments provided to the board, and in considering whether the language of comments provided to the board fairly apprised interested persons of the specific subjects and issues contained in the amendments, shall consider the comments provided to the board at the public hearing referred to in subsection (c)(2)(C).(h) This subsection applies to that part of a rule adopted under this section that directly corresponds to and is based on a federal law, rule, or regulation that is stayed or repealed, invalidated, vacated, or otherwise nullified by a legislative, an administrative, or a judicial action described in subdivision (1), (2), or (3). If:(1) a proposed rule is adopted by a board under subsection (e)(1) based on a determination by the commissioner under subsection (a)(1)(A) and the federal law, rule, or regulation on which the adopted rule is based is later repealed or otherwise nullified by legislative or administrative action, then that part of the adopted rule that corresponds to the repealed or nullified federal law, rule, or regulation is void as of the effective date of the legislative or administrative action repealing or otherwise nullifying the federal law, rule, or regulation;(2) a board adopts a proposed rule under subsection (e)(1) that is based on a determination by the commissioner under subsection (a)(1)(A) and the federal law, rule, or regulation on which the adopted rule is based is later invalidated, vacated, or otherwise nullified by a judicial decree, order, or judgment of a state or federal court whose decisions concerning such matters have force and effect in Indiana:(A) then that part of the rule that corresponds to the invalidated, vacated, or otherwise nullified federal law, rule, or regulation shall not be enforced by the commissioner or any other person during the time in which an appeal of the judicial decree, order, or judgment can be commenced or is pending; and(B) either:(i) that part of the adopted rule that corresponds to the invalidated, vacated, or otherwise nullified federal law, rule, or regulation is void as of the date that the judicial decree, order, or judgment becomes final and unappealable; or(ii) enforcement of the adopted rule is restored if the judicial decree, order, or judgment is reversed, vacated, or otherwise nullified on appeal; and(3) the federal law, regulation, or rule that is the basis of a rule that is adopted under subsection (e)(1) and based on a determination by the commissioner under subsection (a)(1)(A) is stayed by an administrative or a judicial order pending an administrative or a judicial action regarding the validity of the federal law, rule, or regulation, the commissioner may suspend the enforcement of that part of the adopted rule that corresponds to the stayed federal law, rule, or regulation while the stay is in force.[Pre-1996 Recodification Citation: 13-7-7.1-8.]As added by P.L.1-1996, SEC.4. Amended by P.L.204-2007, SEC.12; P.L.79-2011, SEC.1; P.L.159-2011, SEC.15; P.L.6-2012, SEC.103.