Federal Initiatives
Regulatory Streamlining
FERC Handbook
State Initiatives
Access Indiana
 State Information Center
 Indiana State Agency Mediation
Indiana State Department of Health, Regulatory Reform Model
 Floating Oil Memorandum of Agreement
DNR Application Assistance Manual
 Conversion of Special Permits to General Permits
 Automatic Expiration of Rules

RECENT EFFORTS TO COORDINATE AND STREAMLINE


FEDERAL INITIATIVES


Regulatory Streamlining

Both federal and state agencies are pursuing efforts to reduce the number and complexity of regulations. One illustration is an effort being undertaken by the Environmental Protection Agency. The effort was begun in late 1995and would eliminate about 1,400 pages, or roughly 10%, of its existing regulations.60

In 1993, President Bill Clinton issued Executive Order 12866. The order required that each federal "agency shall draft its regulations to be simple and easy to understand with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty."


FERC Handbook

The Federal Energy Regulatory Commission has attempted to make its processes more understandable with the development of THE HYDROELECTRIC PROJECT LICENSING HANDBOOK. The publication seeks to assist applicants, public interest groups, and FERC staff in the development, review, and processing of applications for nonfederal water power projects on a navigable waterway or a federal land.61



STATE INITIATIVES


IDEM/DNR Memorandum of Understanding

As a direct result of resolutions by the Blue Ribbon Advisory Panel for Lake Michigan issues and by the Lake Michigan Marina Development Commission, the Indiana Department of Enviornmental Management and the Department of Natural Resources are developing a memorandum of understanding ("MOU") to help move permit coordination forward. The MOU is now being formulated with the understanding the Natural Resources Commission and Water Pollution Control Board also have important state regulatory roles. In addition, the design is eventually to invite participation from the Army Corps of Engineers, the Environmental Protection Agency, and the U.S. Coast Guard.

A draft version of the MOU was presented to the Natural Resources Commission for comment during its January 1998 meeting.62 The draft MOU considered by the NRC provides:
  • IDEM and DNR would agree to work toward better coordination and cooperation with each other.

  • A technical workgroup would be established to establish guidelines for early coordination of the permit process for projects directed to activities within:
    1. Lake Michigan and its navigable tributaries.
    2. Waterways permitting, generally, in Indiana where it is deemed more productive and more responsive to the two agencies and the applicant.

  • The technical workgroup would identify particular strategies to do the following:
    1. Determine whether early coordination might be accomplished for a project to include the applicant and IDEM, DNR, and the Army Corps of Engineers (and, as appropriate, the U.S. Fish and Wildlife Service, the Environmental Protection Agency, and the U.S. Coast Guard).
    2. Where not already available, establish a process for the applicant to request early permit coordination and negotiation to resolve any disagreements.
    3. Establish a measure of success of the joint permitting process, and whether the development of the joint permit application among IDEM, DNR, and the Army Corps is feasible.
    4. Determine whether other methodolgies, supportive of streamlining and protective of the environment, should also be pursued.
    5. IDEM and DNR would jointly publish a permit handbook or brochure to assist local communities in Indiana.

Access Indiana

A rapidly expanding medium for the transfer of information and coordination is the Internet, and particularly the World Wide Web. In Indiana, the umbrella entity which provides state agency services is the Access Indiana Information Network.

Access Indiana "is an interactive information and communication system created to provide equal electronic access to information, regardless of geographic location, for residents and businesses across Indiana." The Access Indiana Network is one part of a three-part initiative "of the State of Indiana designed to improve the quality of life of Indiana's citizens through the use of information technology service providers and state agencies cooperating together."

As the state's electronic information service, Access Indiana operates under the Indiana Intelenet Commission. Network operations are governed by the Intelenet Commission's Enhanced Data Access Review Committee. "Access Indiana relies on task forces comprised of state agencies, professional associations, businesses and citizens to help it establish interactive prices, determine policies, design the appearance and arrangement of interactive output, and determine new interactive services."

One major advantage of Access Indiana and similar services is accessibility. Any site with a telephone line can be developed to acquire its information. The service is available 24 hours a day, and seven days a week.

A second major advantage as developed by Access Indiana, but not ordinarily available on websites, is the availability of keyword search mechanisms. These allow the user to locate reports, documents, or articles in which a particular word or phrase is referenced. Within the Access Indiana Information Network, a keyword search which is general to agency homepages can be located through the Search for Information page.63 Other keyword searches are available for more specialized functions. For example, a keyword search is provided to Indiana General Assembly Bills.64 A second example is the keyword search for administrative decisions by the Natural Resources Commission.65

Most information services on the Access Indiana Information Network are available free of charge to residents and businesses. A few services which feature "dynamic, fast-changing information which must be available instantaneously and highly accurately ('expedited' or 'dynamic' applications) are available for a fee by subscription." The expedited or dynamic applications include, or will include, such items as driver license official records, motor vehicle titles and liens, corporate records, and court dockets, calendars and opinions. "Fees for expedited applications are all approved by the Intelenet Commission and are clearly identified on the Access Indiana Information Network menus." The Access Indiana Information Network's Internet address is: http://www.ai.org/


State Information Center

The State Information Center was established as a central contact point for business and the general public to answer questions relative to the operation of state government. Included is information on state agency programs and services, access to common application forms for business licenses and state assistance programs, and help in matching customer needs with state programs. The center is accessible either through a toll free telephone number, 1-800-45-STATE (1-800-457-8283) or at the Customer Service Center, Room W160, Indiana Government Center South, 402 West Washington Street, Indianapolis (8:00 am to 5:00 pm, EST).66


Indiana State Agency Mediation 67

The use of "alternative dispute resolution" (or "ADR") as a methodology to resolve disputes without resort to litigation has enjoyed increasing acceptance and application in recent years by the civil courts. There are several forms of ADR, with two of the most familiar being (binding) arbitration and (non-binding) mediation. With the success of alternative dispute resolution at the civil level, there has been a growing interest in its application at the administrative level. Alternative dispute resolution provides an important opportunity for streamlining government.

One limitation to alternative dispute resolution at the state administrative level is that there are regulatory structures which cannot be negotiated, nor typically can the authority to enforce regulatory requirements be delegated by the state agency to a third person. This limitation is perhaps most notable for instances where a state agency has primary enforcement authority (or "primacy") for a federal program.68 The state agency must regularly demonstrate to its federal counterpart the ability to enforce a regulatory program in a manner which is at least as effective as at the federal level.

As a consequence, the form of alternative dispute resolution generally favored by state agencies is mediation. The mediator helps bring litigants or potential litigants together. Communications among the parties and the mediator are privileged as settlement negotiations. The mediator can urge a compromise, can help point out weaknesses in a party's position or strengths in the opposing party's position, and can assist in bringing a sense of realism to a dispute. The mediator has no authority, however, to require a negotiated settlement or to order or prohibit an enforcement action. The parties retain all of their legal rights and privileges throughout a mediation session.

The Indiana General Assembly in 1995 created the Administrative Orders and Procedures Act Study Committee. This study committee joined state legislators and citizens in a review of the Indiana administrative orders and procedures act.69 One of the charges of the AOPA Study Committee was to determine whether "alternative dispute resolution would be effective to streamline and simplify administrative adjudication." If the AOPA Study Committee determined ADR would be effective, a related charge was "how best to implement alternative dispute resolution" in the context of state administrative law.

With this backdrop, the Governmental/Regulatory Agencies Committee of the Alternative Dispute Resolution Section, Indiana State Bar Association, met in September 1995. This Committee agreed to discuss the use of mediation by the Natural Resources Commission pursuant to the timber buyer law, the opportunity for mediation within the voluntary remediation program administered by the Indiana Department of Environmental Management, and the possibility that the AOPA Study Committee would propose legislation with respect to one or more forms of alternative dispute resolution. A consensus was achieved with respect to three key points:

  • Mediation, with its dependence upon achieving an agreement by all parties in the final settlement, was the most conservative form of alternative dispute resolution and the form to be pursued in state administrative law.

  • The mediator should enjoy technical expertise relative to the agency's programs and their application to the Indiana administrative orders and procedures act.

  • A statutory structure should be developed which would be cognizant of the worth of mediation and the need to preserve the integrity of the negotiation process, including the protection of confidential statements by the parties.

The Governmental/Regulatory Agency Committee forwarded its recommendations to the AOPA Study Committee. The Indiana State Bar Association, as a whole, also adopted a general resolution harmonious with the Committee proposal for submission to the AOPA Study Committee.

The AOPA Study Committee considered the use of alternative dispute resolution by state agencies in its 1995 summer session and proposed a legislative response. The AOPA Study Committee settled upon the use of mediation as the form of ADR to be implemented and developed a legislative draft. The AOPA Study Committee draft was ultimately embodied in SB 241, and the bill passed with only modest amendments from the AOPA Study Committee. Senate Bill 241 added a new chapter70 to the administrative orders and procedures act. The legislation became effective July 1, 1996 but requires action by the "ultimate authority" for the agency to determine the appropriate application of mediation to the agency.71


EPA-IDEM NEPPS

The National Environmental Performance Partnership System (NEPPS) was developed by the EPA and the states, working to improve the federal-state relationship in environmental management. The system was implemented as a pilot in 1996 by six states: Illinois, Colorado, New Jersey, Utah, Oklahoma and Delaware.72

The Indiana Department of Environment began operating under the NEPPS in 1997. IDEM describes the NEPPS as "a new approach to developing and implementing the State-EPA oversight relationship. Under this system, EPA and IDEM work together to direct scarce public resources toward improving environmental results. Both agencies agree on a set of environmental goals and objectives for Indiana, and measure progress in terms of 'outcomes' instead of 'outputs.' The Environmental Performance Partnership Agreement describes IDEM strategic priorities and partnership with U.S. EPA Region 5."73

According to IDEM, the NEPPS "will enable Indiana to shift from separated air, water and waste planning and priority-setting, to overall planning for Indiana's environment. It will allow IDEM and everyone we serve and work with to measure environmental results, customer service, and efficiency. We believe it will be a significant step forward for both IDEM and Indiana's environment." In 1997, IDEM assembled an agency team to implement the NEPPS. "This approach represents a fundamental shift in the State-EPA relationship and is a major step towards a true partnership based on attaining environmental results."

In general, states and the EPA view the NEPPS as a way to resolve four long-standing environmental management problems:

  • Unnecessary and duplicative levels of federal oversight in state programs.

  • The using "bean counting" (examples: the number of permits or the number of enforcement actions) to measure success, instead of measuring environmental improvements and customer service improvements.

  • A lack of flexibility in determining a state's priorities and needs.

  • The duplication of effort between federal and state governments despite having limited resources.

Indiana State Department of Health,
Regulatory Reform Model

The Indiana State Department of Health has undertaking a comprehensive review of its rules. A keystone of the effort seeks to identify the public health relevance of the rule or regulatory program. The efforts asks:

  • What is the public health risk?

  • What is the size of the population affected?

  • What is the seriousness of the risk?

  • How effective is intervention?

The Indiana State Department of Health prepares a one-page summary and flow chart for each affected regulatory program. Inquiries are made as to whether the agency is complying with any statutory mandate. Data collection is scrutinized, and outcomes are measured. Tracking systems are reviewed. The agency looks at quality assurance mechanisms, the allocation of monetary and human resources, inspections, enforcement, and timeliness. An evaluation is made as to how "labor intensive" an effort is and whether there is overlap within the agency or with another agency. The maturity and sophistication of the regulated community are considered, stakeholders are identified, and the utility of special expertise is evaluated.

Other state programs are compared. Recommendations are made for "enhancing innovation." The regulatory reform effort is then summarized in a final report.74


Floating Oil Memorandum of Agreement

The U.S. Environmental Protection Agency and the Indiana Department of Environmental Management are pursuing "a geographic initiative in Northwest Indiana that seeks multi-media environmental protection. A focus of this effort is the Grand Calumet and the Indiana harbor Canal at the intersection of the Lake George Branch and the Indiana Harbor Canal, where the presence of free phase hydrocarbons on the surface water is a concern." The effort includes private sector participants who will work "voluntarily and cooperatively" in order to "effectively pursue environmental protection measures without relying on traditional regulatory approaches." The private sector participants will submit site-specific documentation to EPA and IDEM within three phases: (1) a current conditions report; (2) a Phase I verification report; and, (3) a Phase II implementation and verification report. Original signatories to a 1994 Memorandum of Cooperation were Amoco Corporation, Mobil Oil Corporation, Northern Indiana Public Service Company, Phillips Pipe Line Company, and the Safety-Kleen Corporation.75


DNR Application Assistance Manual

In April 1996, the Consulting Engineers of Indiana conducted a Permit Training Conference to assist in making permitting processes more streamlined and better understood by the public. A focus was upon permits issued by the Division of Water to conduct what might be broadly termed "construction activities" in or near waterways.

For the conference, the Department of Natural Resources prepared the Application Assistance Manual to help individuals with the preparation and submission of permit applications to the agency. "By following the procedures and requirements outlined in this document, applicants can minimize the potential that their applications will be placed in abeyance due to incomplete submissions." The text is designed to provide applicants with a basic understanding of the regulatory programs and the overall review process.

Descriptions are provided as to the documentation needed to prepare a complete application, including engineering and technical support materials, as well as for compliance with notice requirements. Included are numerous sketches and photographs to help illustrate graphically how the permitting process is implemented. There are tables providing critical information such as the names and locations of conservancy districts, public freshwater lakes which have been mapped to identify wetlands and other areas of special concern, and waterways declared navigable.

The Application Assistance Manual and supporting documentation have since been updated and modified.76 These updates are available in two forms, one directed primarily to consultants and contractors, and a second abbreviated version for nonprofessionals.77


Conversion of Special Permits to General Permits

As discussed previously in this chapter, the Natural Resources Commission may adopt rules to exempt construction activities from the full rigors of the permitting process, where those activities pose "no more than a minimal potential for harm."78 Using this authority, the commission has recently approved several activities for general permits which formerly required special permits. Included among these are the following:

  • "Wetlands restoration measures" constructed in association with the Department of Natural Resources, the U.S. Fish and Wildlife Service, or the U.S. Natural Resources Conservation Service, and which meet the conditions of the general permit, qualify for a general permit.79
  • Beach nourishment on Lake Michigan, placed either above or below the ordinary high watermark, may be eligible for a general permit.80

  • Logjams in rivers and stream may be removed pursuant to a general permit, and logjams and sandbars beneath bridges may be completely exempted from permitting.81


A committee within the DNR is now considering whether other a activities might properly be made the subject of a general permit.


Understanding Conservancy Districts

A conservancy district is a local government entity which serves a specified limited purpose or purposes. The development of conservancy districts is an increasingly active option for addressing a variety of land use issues at the local level. The breadth of purposes within the potential jurisdiction of conservancy district is discussed previously in this chapter.

A conservancy district is managed by a board elected by its freeholders and subject to the general supervision of the county circuit court. The Natural Resources Commission and Department of Natural Resources serve advisory and administrative roles both respect to the district and the court. The Indiana Department of Environmental Management, Indiana State Department of Health, and Utility Regulatory Commission may also have regulatory or technical advisory roles relative to a district.82

Recently, the Advisory Council for the Bureau of Water and Resource Regulation of the Department of Natural Resources reviewed the performance of conservancy districts, and particularly the role of the Natural Resources Commission and the Department of Natural Resources relative to their formation and development. Issues included a consideration of procedures applicable to key phases in the life of conservancy districts, mechanisms for cost-benefit analyses, the identification of appropriate district boundaries, and special problems associated with conservancy districts derived from levee districts.83 Not all issues were fully addressed, but significant progress was made toward making conservancy districts more accessible to and understandable by the public.

One of the results was the development by the Commission of its Conservancy District Policy "to foster better coordination" among the administering agencies for the benefit of the effected citizens. This document was focused not upon the substance of conservancy districts but rather upon how interested persons might actively participate in activities relating to the formation of districts, the development of district plans, and the dissolution of districts.84

In response to the Advisory Council's review of conservancy districts and the nonrule policy document, the DNR Division of Water developed a guide book in 1997 titled, ESTABLISHMENT GUIDE FOR THE CONSERVANCY DISTRICTS. The guide includes guidelines and timeframes of establishment procedures, an explanation of the requirements for developing a district plan, a copy of the Conservancy District Act, a copy of the nonrule policy document, and recommended contacts to facilitate early coordination between residents, local officials, and DNR regarding district establishment.85


Automatic Expiration of Rules

In 1996, the Indiana General Assembly enacted new legislation which provides for the automatic expiration of rules on the seventh year after the rule takes effect but not later than January 1, 2002. A rule which is not readopted will be removed from the Indiana Administrative Code unless the Governor finds that the failure to readopt causes in emergency; in that case, an executive order may extend the vitality of the rule for one year.86

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