in-20250910-IR-355240618RAA: (765) 494-1547

TITLE 355 STATE CHEMIST OF THE STATE OF INDIANA Readoption Review LSA Document #24-618

I. Statement Whether the Subject Matter Covered by the Rule Remains Carried out by the Agency

Yes, IC 15-16-2-1 continues to require the State Chemist to administer this rule. Additionally, IC 15-16-2-41 instructs the State Chemist that bulk fertilizer must be stored in a manner that minimizes the release and protects waters of the state.  IC 15-16-2-44 further directs the State Chemist to adopt rules concerning the staging, management, and land application of fertilizer material and to adopt rules concerning the use of fertilizer materials.

II. Rationale for the Continued Need for the Rule  

There is a continued need for these regulations. Reexamine: OISC has reviewed previous cost benefit, economic impact, fiscal impact statements.  There has been no change in circumstances that affect the analysis. Alternative methods: To fulfill the charge of protecting waters of the state and the management of fertilizer materials, we do not see an alternative method to achieve the regulatory goals; however, changes could be made to exempt additional entities from the requirements. This article currently has draft revisions that will be less restrictive.  The changes would increase the volume of fertilizer that could be stored before this article becomes applicable.  The draft rules would also allow for short term seasonal storage.  Those changes would reduce the economic impact on small businesses.  The draft will also codify some policies that we are using to allow the use of new technologies.  We anticipate that process will start soon. The standards in IC 4-22-2-19.5 have been reviewed, and the rules in 355 IAC 2 satisfy them as explained below. Minimizing expenses: While there can be substantial cost associated with the construction of a storage facility for liquid or dry fertilizers, it needs to be understood that these are valuable inputs that the user would want to protect. Some states require that the construction plans be submitted and reviewed prior to construction.  Some require that the plans be submitted by a professional engineer. Additionally, when the rule was written a benefit was also created. IC 6-1.1-12-38 allows for a deduction of assessed value on an individual’s property tax for any improvements made to comply with 355 IAC 2. Lastly, OISC is a self-funded agency.  The cost of administering the fertilizer program does not come from taxes, but rather from user fees.  The Indiana Commercial Fertilizer Law requires a $20 per product registration fee for bulk fertilizer products with an additional inspection fee of $0.45/ton paid to the State Chemist.  Basing the inspection fee on usage leads to the larger firms having a larger total fee. Achieve regulatory goal in the least restrictive manner: OISC has 856 registered bulk storage facilities, of which 483 are listed as farmer storage.  The 483 registered bulk storage facilities were mentioned because in 2024 there were approximately 52,000 farms in Indiana.  A very small number chose to store bulk commercial fertilizers that would fall under these rules.  The containment rules do not apply until a facility has a single tank greater than 2,500 gallons or the total storage capacity at a facility is greater than 7,500 gallons.  This allows many producers the ability to have the benefit of on-farm storage without the expense imposed by the rule. Avoid duplicating standards found in state or federal laws: There are no federal standards for fertilizer containment.  Long ago USDA decided to allow the states to regulate fertilizer products and storage. OISC and the Indiana Department of Environmental Management (IDEM) share complementary roles in protecting waters of the state in statute.  While IDEM has requirements for above ground storage tanks and underground storage tanks for various products, OISC has storage requirements for fertilizer and pesticides. Be written for ease of comprehension: As with all OISC fertilizer rules, we formed a working group to develop and revise the regulations.  The working group includes individuals from all aspects of the regulated industry.  Members of this working group represented farmers, ag retailers, environmental health & safety personnel, lawn care, and warehouse or terminal operations managers.  The thoughts and words from the individuals working in these areas are what was used to write and revise this article. Have practicable enforcement: OISC has been analyzing fertilizer products since 1881.  Our staff of field inspectors visit the retail locations multiple times a year to perform their sampling duties.  Most of the samples that are collected are from bulk containers; therefore, it provides great efficiency for OISC to regulate the storage of bulk fertilizers.  Our staff is well trained in the requirements and can refer to our engineers for additional resources. The rules are performance- based; they do not specify a particular building code to follow, but rather state to use good engineering practices in the constructions.  This reduces the burden on the facility and allows them to have the contractor use their knowledge to construct a storage facility.

III.  Analysis of fees, fines, and civil penalties under IC 4-22-2-19.6

355 IAC 2 does not include fees.  The civil penalties for 355 IAC 2 are contained in 355 IAC 9 and meet each of the IC 4-22-2-19.6 standards.  The civil penalty schedule table has a set dollar amount that is calculated using a per day, per incident, or per year formula.

IV.   Cost-Benefit, Economic Impact, Fiscal Impact, or Regulatory Burden Statements

The OISC sets forth the prior regulatory burden statement below. Regulatory Burden Statement Agency: Office of Indiana State Chemist Proposed Rule: 355 IAC 2 Commercial Fertilizer

V.   Alternative Methods of Achieving the Purpose of the Rule

To fulfill the charge of protecting waters of the state and the management of fertilizer materials we do not see an alternative method to achieve the regulatory goals, however we could change the threshold for storage requiring secondary and operational containment. This article currently has draft revisions that will be less restrictive.  The changes would increase the volume of fertilizer that could be stored before this article becomes applicable.  The draft rules would also allow for short term seasonal storage.  Those changes would reduce the economic impact on small businesses.  The draft will also codify some policies that we are using to allow the use of new technologies.  We anticipate that process will start soon.

VI.   Complaints and Comments

This is a rule readoption for 355 IAC 2.  As with any regulation, several businesses or people think that they do not need to be told how to handle their business or operation. One comment that keeps coming up is the need to allow temporary seasonal storage.  This is being addressed in the future revisions that we hope to promulgate later this year.

VII.   Difficulties Encountered

In my 29 years with the agency, I have not encountered any difficulties in administering the rule.  As with all OISC fertilizer regulations, we are actively involved with the regulated communities during the development of the regulations through working groups.  Once changes are made, we have a tremendous outreach initiative, historically allow multiple years for implementation, and use discretionary enforcement to assist with compliance.  I have not seen difficulties from small businesses or regulated parties with our rules.

VIII.   Changes in Technology, Economic Conditions, or Other Factors

There have been substantial changes in technology since the rule was last changed.  That is why we are in the process of revising the rules but need to readopt them, so the article does not expire.  The Indiana Commercial Fertilizer Law, IC 15-16-2-45, does allow for the use of new technologies not addressed in the administrative rules.  Part of our forthcoming draft rule revisions is the codification of these policies that allow the use of new technologies into rules.  For example, large field erected tanks that use a bladder system have been approved for many years; however, there is no reference to that system in the regulations.  Our anticipated revisions intend to make our policy requirements for bladder systems a regulation under 355 IAC 2.

IX.   Other State or Federal Requirements

However, I was unable to locate specific regulations pertaining to the storage of fertilizer.

X.   Previous Amendments

This article was written in 1991, revised in 2001, and readopted in 2007, 2013, and 2019. We have begun a new revision as well.  We are currently readopting the article to keep it from sunsetting.

XI.   Integration into Indiana Code

355 IAC 2 is a good candidate for integration into Indiana Code with our forthcoming revisions or modifications.

XII. Contact Information of Staff to Answer Substantive Questions

Matthew E. Pearson Fertilizer Administrator Office of Indiana State Chemist 175 S University St West Lafayette, IN  47907-2063 (765) 494-1547 www.OISC.purdue.edu fertregistration@groups.purdue.edu Notice of Public Comment Period for Rule Readoption: 20250910-IR-355240618RNA Notice of Determination Received: September 2, 2025