Environmental law update: faster permitting, a wetlands ruling and good news for brown field buyers.

• Author: McKimmie, Kathy
• Position: Environment - Brief Article

Regulating air, water and waste, and determining who will pay for cleanups. Those are the topics that have consumed the environmental agenda for some 20 years. While the growing pains that followed passage of major initiatives are mostly a thing of the past, there's still an annual tweaking that goes on at the Statehouse, and there's still a nagging concern that never goes away: the permitting process can he as slow as molasses.

"The longer it takes, the less desirable it is to he in Indiana," Frank Deveau, head of the environmental practice group of Sommer & Barnard, Indianapolis, says of the permitting process. If it takes two months to get a permit in another state versus 12 months in Indiana, "you're inclined to go with the shorter period if everything else is equal."

Most of the permitting Deveau refers to surrounds air emissions. "IDEM is generally conscientious," he says. "They recognize it's a big deal." But one obstacle to expediency is EPA's Region V office. "We thought that when Bush became president they would be more reasonable, but it's a huge organization." Changes haven't filtered down to regional offices yet.

FASTER PERMITTING

Updating water discharge permits is also a problem, says Kari Lewis, associate in the environmental law department of Barnes & Thornburg's Indianapolis office. An answer may be the passage of House Enrolled Act 1329 in the 2002 regular session of the General Assembly, amending an existing law to jumpstart the permitting process under the National Pollutant Discharge Elimination System. Through lack of action, IDEM has allowed more than 100 permits to expire in the state, some for 10 years, says Lewis.

When a water discharge permit expires it is administratively extended, so initially there was no demand for expeditious renewal because many businesses were happy with their old permit and concerned that a new one might be more stringent. "But now, it's hindering their ability to make changes," says Lewis. "You can't keep delaying projects. The reason this was passed was several facilities in the state were saying, 'Hey, something's got to give.'"

"A number of years ago we adopted water quality standards that were fairly strict," says Lew Beck-with, partner with Baker & Daniels Indianapolis, who practices primarily in environmental law and OSHA areas. "We patted ourselves on the back" at the time, he says, but the delays and uncertainties surrounding permits will ultimately impact businesses that...