Topics:

PRESIDING = JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM: = ; Valerie Tachtiris, Esq.

Petitioners:&nbs= p; Gregory Zubek, Esq., Larry Whitham, Esq. for KCCA;

= ; &n= bsp; Whitham Hebenstreit & Zubek LLP

&nbs= p; &= nbsp; Frank and Linda O’Neal, Richard and Betty Gooding, Pete V. Bitar; pro se

Respondent: = ; Sue Shadley, Esq., Amy Romig, Esq., John Ketcham, Esq.;

&nbs= p; &= nbsp; Plews Shadley Racher & Braun, LLP

Intervenor: = ; Timothy Lanane, Esq.

ORDER = ISSUED:

March 23, 2011

INDEX = CATEGORY:

Land

FURTHER CA= SE ACTIVITY:

[none]

[2011 OEA 2= 6, page 27 begins]

STATE OF = INDIANA = &nb= sp; ) &= nbsp; &nbs= p; BEFORE THE INDIANA OFFICE OF

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION &= nbsp; )<= /p>

&nbs= p;

IN THE MA= TTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = )

OBJECTION= S TO RENEWAL OF &n= bsp; = ; )

SOLID WAS= TE PERMIT NO. FP 48-06 = &nb= sp; ) &= nbsp;

MALLARD <= st1:place w:st=3D"on">LAKE LANDFILL &= nbsp; &nbs= p; = )

JM CORPOR= ATION &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

ANDERSON, MADISON COUNTY, INDIANA )

_________= ______________________________ ) &= nbsp; CAUSE NO. 10-S-J-4347

Killbuck Concerned Citizens Assn., Inc., et = al., &= nbsp; )

Petitioners= , &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

JM Corpor= ation, &= nbsp; &nbs= p; &= nbsp; &= nbsp; &nbs= p; )

Permittee/R= espondent, &= nbsp; &nbs= p; &= nbsp; )

Indiana Department of Environmental Management,&nbs= p; )

Respondent,= &= nbsp; &nbs= p; &= nbsp; &nbs= p; = )

City of <= st1:City w:st=3D"on">Anderson, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Intervenor<= span style=3D'mso-tab-count:6'> &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER<= /u>

<= /span>This matter came before the Office of Environmental Adjudication (the OEA or the Court) for a hearing on the petitions for review, and the Environmental Law Judge having heard the evidence and testimony and read the record and pleadings, enters the following findings of fact, conclusions of law and fi= nal order.

Summary of Decision

<= /span>The Petitioners appealed the Indiana Department of Environmental ManagementR= 17;s (the IDEM) issuance of Solid Waste Permit No. FP 48-06 to JM Corporation (JMC). The Petitioners conten= d the IDEM erred in issuing the Permit for a failure to comply with 329 IAC 10-11-5.1; 329 IAC 10-11-2.1(e); 329 IAC 10-14-1; 329 IAC 10-14-2; 329 IAC 10-13-2; and 329 IAC 10-16-1. The Court finds in favor of JM Corporation.&nb= sp;

Statement of the Case

[2011 OEA 2= 6, page 28 begins]

= 1. On February 22, 2010, Frank and Linda O’Neal (the O’Neals) filed a petition for review with the OEA. On February 23, 2010, Richard E. Gooding, Sr. and Betty Gooding (the Goodings) filed a petition for review with the OEA. On February 26, 2010, the Killbuck Concerned Citizens Association, Inc., William Kutschera and Daniel B. Spall (collectively KCCA) filed their petition for review. On February 26, 2010, Pete V. Bitar filed a petition for review with the OEA.&= nbsp;

= 2. On April 19, 2010, the City of An= derson moved to intervene in this matter. This motion was granted on May 7, 2010.

= 3. The IDEM filed its Motion to Dismiss on July 23, 2010. On the same date, JM Corporation f= iled its Motion for Summary Judgment.

4.&n= bsp; The ELJ issued Findings of Fact, Conclusions of Law= and Order on October 28, 2010. The Order provided:

= 1.&n= bsp; The IDEM’s Motion to Dismiss is GRANTED on all issues except as speci= fied in paragraphs #2 and #3 below.

2.&n= bsp; JMC’s Motion for Summary Judgment is DENIED as to the following issues= : whether JMC has complied with 329 = IAC 10-16-1.

3.&n= bsp; To avoid dismissal of this matter, the Court grants leave to the Petitioners to amend their petitions for review, in a manner consistent with this Order, within ten (10) days on the following issues ONLY. Failure to amend in a timely manner shall result in the dismissal of= the petitions for review.

· Frank and Linda O’Neal shall amend the= ir petition to specify which regulations IDEM failed to follow relating to the= ir allegation that their well water will be affected.

· Richard E. Gooding, Sr. and Betty Gooding sh= all amend their petition to specify which regulations IDEM failed to follow relating to their allegation that the Landfill will have an impact on surfa= ce and ground water.

· Pete V. Bitar shall amend his petition to specify which regulations IDEM failed to follow relating to his allegation = that the Landfill will have an impact on surface and ground water.

· KCCA shall amend its petition to specify how= (1) JMC has failed to comply with applicable regulations since the Permit was initially issued in 1988; (2) IDEM failed to consider certain environmental data; and (3) IDEM failed to follow applicable statutes and regulations regarding the issuance of the Permit. <= /p>

5.&n= bsp; KCCA and the Goodings filed amended Petitions on November 5, 2010.

6.&n= bsp; A final prehearing conference was held on November = 9, 2010. KCCA, the city of Ander= son, the Goodings and Mr. Bitar appeared. The O’Neals did not appear.

[2011 OEA 2= 6, page 29 begins]

7.&n= bsp; The final hearing was held on November 17 and 18, 2= 010.

FINDINGS OF FACT

1. &n= bsp; The findings of fact set forth in the Findings of F= act, Conclusions of Law and Order issued on October 28, 2010 are incorporated herein.

&nb= sp;

2. &n= bsp; In 1988, IDEM issued a solid waste operating permit= to JMC. The permit authorized the operation of the Mallard Lake Landfill located at 3823 East 300 North, Anderson, Madison County, Indiana (the Landfill) as a municipal solid waste landfill.

3. &n= bsp; Construction of the initial fill area was completed= in late 1987.[1]

4. &n= bsp; The operating permit was effective on July 2, 1998.= [2]

&nb= sp;

5. &n= bsp; The Permit’s expiration date was July 2, 2003.

6. &n= bsp; JMC submitted its renewal application on March 4, 2003.

7. &n= bsp; On February 11, 2010, IDEM renewed Solid Waste Faci= lity Permit No. FP 48-06 (the Permit) pursuant to the requirements of 329 IAC 10= .

8. &n= bsp; The Landfill has not received waste for disposal. The Indiana Supreme Court, in KCCA v. J.M. Corporation, 2011 Ind. LEXIS 70 (Ind. 2011), determined that JMC’s facility included a container collection system and had received waste for storage.=

9. &n= bsp; The Landfill is located more 11,000 feet from the <= st1:place w:st=3D"on">Anderson Municipal Airport.

10. On May 3, 1996, JMC notified the Federal Aviation Administration and the Ander= son Municipal Airport that the Landfill would be located within a five-mile rad= ius of the an airport runway.

11. Pursuant to I.C. § 4-21.5-3-26(f), the ELJ takes official notice of the fact th= at JMC was a corporation in good standing on March 4, 2003.[3]

Applicable Law

[2011 OEA 2= 6, page 30 begins]

= ; The Indiana Department of Environmental Management (IDEM) is authorized to implement and enforce specified Indiana environmental laws and rules promulgated relevant to those laws, pursuant to Ind. Code (I.C.) § 13. The Office of Environment= al Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner of the IDEM and the parties to this controversy pursuant to I.= C. § 4-21.5-7-3.

&nbs= p;

&nbs= p; KCCA alleges that JMC failed to make a timely application for renewal of the Per= mit under 329 IAC 10-11-5.1. This regulation requires that an application for renewal must be submitted ̶= 0;at least one hundred twenty (120) days prior to the expiration date of the per= mit or the permit will be invalid upon expiration.”

&nbs= p; KCCA further alleges that JMC’s permit application was deficient for failu= re to comply with 329 IAC 10-11-2.1(e). This regulation requires the applicant, if it is a corporation, to include a certificate of existence signed by the secretary of state. 329 IAC 10-11-5.1 requires a permit renewal application to comply with most of the requirements of 329 IAC 10-11-2.1, including 2.1(e). =

&nbs= p; KCCA also argues that the Permit was improperly issued because IDEM did not cons= ider JMC’s non-compliance with certain regulations. 329 IAC 10-13-2[4] requ= ires the following:

&nb= sp;

The commissioner shall review the application to determine whether the solid waste land disposal facility or the operation is in compliance with t= he plans and specifications in its existing permit. The commissioner may reque= st clarification or supplementation of information submitted in support of the renewal application. The commissioner shall evaluate the facility's complia= nce record under:

(= A) = the operational requirements of 329 IAC 10-20, 329 = IAC 10-28, or 329 IAC 10-36 as appropriate; and

(= B) = any prior or existing permit conditions.

= ; KCCA contends that the IDEM erred in issuing the Permit because JMC had not comp= lied with the requirements of 329 IAC 10-14-1 and 329 IAC 10-14-2. 329 IAC 10-14-1 requires the owner= or operator of a “solid waste land disposal facility” “that = is open to accept solid waste for disposal”[5] to submit quarterly reports to the IDEM. 329 IAC 10-14-2 requires a “solid waste land disposal facility” “that is open to accept solid waste for disposal̶= 1; to install weighing scales.

[2011 OEA 2= 6, page 31 begins]

= ; The Supreme Court of Indiana, in KCCA v= . J.M. Corporation, 2011 Ind. LEXIS 70 (Ind. 2011)[6], for purposes of determining whether I.C. §13-20-2-11 was applicable, held = that JMC’s “facility” had accepted waste prior to April 2008 b= ased on JMC operating a collection container system at the facility. However, the Court distinguished b= etween the terms “facility” and “landfill” saying “<= span style=3D'color:#333333'>The term [facility] includes solid waste landfills,= id., but it is not limited to them.” KCCA at 76. “Put another way, JMCs facility includes both its landfill (disposal operation) and collection container system (storage operation).” KCCA at 77.

= ; 329 IAC 10-2-176 defines “solid waste land disposal facility” as “a permitted facility that accepts solid waste for deposit and coveri= ng in or on the ground surface. Permitted solid waste land disposal facilities must be classified into one (1) of the following types: (1) Municipal solid waste landfill (MSWLF). (2) Construction/demolition site. (3) Restricted wa= ste site. (4) Non-municipal solid waste landfill.

329 IAC 10-2-116 defines “municipal solid waste landfill” as “a solid waste land disposal facility that is:

(= 1) = &nb= sp; permitted to accept municipal solid waste; and

(= 2) = &nb= sp; not:

(= A) = &nb= sp; = a land application unit;

(= B) = &nb= sp; = &nb= sp; a surface impoundment;

(= C) = &nb= sp; = an injection well; or

(= D) = &nb= sp; = a waste pile.

(= b) = &nb= sp; = &nb= sp; An MSWLF is a sanitary landfill for purposes of I.C. § 13-20-21. Such a landfill may be publicly or privately owned.

329 IAC 10-2-117 defines “Municipal solid waste landfill unit” or “MSWLF unit” as:

(a) “Municipal solid waste landfill unit” or “MSWLF unit” means a discre= te area of land or an excavation that is:

(= 1) = permitted to accept municipal solid waste for dispo= sal; and

(= 2) = not:

(= A) = &nb= sp; = &nb= sp; a land application unit;

(= B) = &nb= sp; = &nb= sp; a surface impoundment;

(= C) = &nb= sp; = &nb= sp; an injection well; or

(= D) = &nb= sp; = &nb= sp; a waste pile.

(b) The landfill may be publicly or privately owned. An MSWLF unit may be a new MSW= LF unit, an existing MSWLF unit, or a lateral expansion.

[2011 OEA 2= 6, page 32 begins]

&= nbsp; In accordance with 329 IAC 10-2-119, a “New municipal solid waste landfill unit” or “new MSWLF unit” is defined as “"New municipal solid waste landfill unit" or "new MSWLF unit" means any MSWLF unit that= has not received solid waste.”

&= nbsp; Lastly, KCCA asserts that the permit application was deficient in that JMC failed to comply with 329 IAC 10-16-1 and that the Landfill is a bird attractant and thus, presents a danger to aircraft and persons using and living in the are= a of Anderson = Municipal Airport. This regulation requires that the = permit applicant demonstrate that a landfill located less than 10,000 feet from an airport will not create a bird hazard to aircraft. If the landfill is located within = five (5) miles of an airport, the applicant must notify the airport and the Fede= ral Aviation Administration.

&= nbsp; 329 IAC 10-16-1(f) states, “A new MSWLF must not be permitted within six = (6) miles of a public airport as specified under 49 U.S.C. Sec. 44718 unless the MSWLF permittee has been granted an exemption under 49 U.S.C. Sec. 44718.” 49 U.S.C. 44718= does not apply to landfills that were constructed prior to the law’s effec= tive date (April 5, 2000). &nb= sp;

CONCLUSIONS OF LAW<= /b>

<= span style=3D'mso-bidi-font-weight:bold'>1.      The OEA has subject matter jurisdiction to hear the petitions for review as the petitions request review of a decision made by the IDEM Commissioner. Further, the Court concludes that = the petitions were timely filed.=

2.&n= bsp;     This office must apply a de novo standard of review to this proceeding when determining the facts at issue. Indiana<= /i> Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993). Findings of fact must be based exclusively on the evidence presented to the ELJ, and deference to the agency’s initial factual determination is not allowed. Id.; I.C. §4-21.5-3-27(d). Further, OEA is required to base i= ts factual findings on substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004) (appeal of = OEA review of NPDES permit); see also I.C. § 4-21.5-3-14; I.C. § 4-21.5-3-27(d).

3.&n= bsp;     The Goodings failed to amend their petition for rev= iew in accordance with the October 28, 2010 Order issued by the presiding ELJ.<= span style=3D'mso-spacerun:yes'> Further, the Goodings failed to ap= pear at the final hearing in this matter. The Petition for Review filed by Richard E. Gooding, Sr. and Betty Gooding is DISMISSED for failu= re to comply with the Court’s order and for failure to present evidence regarding the objections specified in the Petition for Review.

4.&n= bsp;     Mr. Bitar and the O’Neals failed to amend the= ir petitions for review in accordance with the October 28, 2010 Order issued by the presiding ELJ. Frank and = Linda O’Neal and Pete V. Bitar’s claims relating to ground or surface water contamination are DISMISSED.=

5.&n= bsp;     JMC submitted its application on the 120^{th
day prior to the Permit’s expiration date. JMC’s submission of the Perm=
it
renewal application was timely.}

=

[2011 OEA 2= 6, page 33 begins]

=

6.&n= bsp;     Even if the application was not timely, 329 IAC 10-11-5.1(b) does not preclude the issuance of a renewal. This regulation administratively e= xtends the effectiveness of a permit in the event that the IDEM does not complete = its review prior to a permit’s expiration date. If a permittee fails to file its r= enewal application on time, the consequence is that the permit expires. There is no provision that the IDE= M is then precluded from issuing the renewal once it completes its review, as it= did in this case.

7.&n= bsp;     Further, in this case, the Permit is an operating permit. Whether the permit ex= pired is a moot point as the Landfill did not operate between 2003 and IDEM’= ;s issuance of the renewal.

8.      While a permit applicant has the obligation to submit a complete renewal applicat= ion, the IDEM must also review the application for completeness and give the applicant the opportunity to supplement its application before it is denied. I.C. § 13-15-4-9= . Ther= efore, if JMC failed to submit its statement of existence, the proper course of ac= tion for IDEM would not be to deny t= he permit, but rather to request the required information. The permit could on= ly be denied if the permittee then failed to submit the requested information. Additionally, the Petitioners failed to show that JMC was not a corporation in good standing = at the time of the renewal application was submitted. A search of the Secretary of State’s website[7] reve= aled that JMC was, in fact, a corporation in good standing at the time the renew= al application was submitted.[8] OEA finds that the failure to subm= it the Certificate of Existence in compliance with 329 IAC 10-11-2.1(e) is not gro= unds for revocation of the permit renewal. The OEA will not impose such an extreme sanction for failure to comp= ly with a requirement that can be accurately and readily determined by resort = to sources whose accuracy cannot be reasonably questioned.

9.&n= bsp;     The regulations, 329 IAC 10-14-1 and 329-10-14-2, d= eal with submitting quarterly reports and having weighing scales on site, respectively. However, each o= f the rules at issue applies only to landfills that are accepting waste. Specifically, 329 IAC 10-14-1(c) s= tates that the rule regarding submission of quarterly reports applies to a site “that is open to accept solid= waste for disposal.” (Emp= hasis added). 329 IAC 10-14-2(a)(2)= (A) contains a similar exception, noting that “[e]xisting solid waste land disposal facilities required to install weighing scales under the following conditions: (A) The solid waste land disposal facility is open to accept solid waste for disposal.” (Emphasis added). The landfill at issue has never ac= cepted solid waste for disposal, and thus the permittee was not required to submit quarterly reports or have weighing scales on site.

=

[2011 OEA 2= 6, page 34 begins]

=

10.&= nbsp; Moreover, 329 IAC 10-13-2 does not require compliance with the provisions of 329 IAC 10-14. Therefore, as the Petitioners failed to present any evidence that such compliance was necessa= ry or that JMC was not in compliance with (a) the requirements of 329 IAC 10-1= 4-1 and 329-10-14-2 or (b) with the “operational requirements of 329 IAC 10-20, 329 IAC 10-28, or 329 IAC 10-36 as appropriate”[9], the Petitioners have failed to meet their burden of proof on this objection.

11.&= nbsp; The Supreme Court’s determination that the “facility”, in the form of a container collection system, accepted waste is not conclusive her= e. The Court distinguished between accepting waste for storage versus accepting waste for disposal and held that JMC had accepted waste for storage. As the remaining Petitioners faile= d to prove that the landfill accepted waste for disposal, the requirements of 329 IAC 10-14-1 and 329 IAC 10-14-2 are not applicable.

<= span style=3D'mso-bidi-font-weight:bold'>12. While it may be true that the Landfill will be a bird attractant and therefore, m= ay create a bird hazard at the airport, this, alone, is not sufficient to determine whether that the Permit was properly issued. The standard is whether the Permit complies with all written criteria contained within the relevant rules and statutes. The Solid Waste Management Board, as the board with the authority to promulgate rules relat= ing to solid waste, decides what an acceptable risk to human health and the environment is.

13. KCCA alleges that since the landfill at issue has never accepted waste, it meets= the definition of a “new MSWLF Unit.” However, the Mallard Lake Landfill= is a “MSWLF” not a “MLSWLF unit.” Compare 329 IAC 10-2-116 and 32= 9 IAC 10-2-117.

14. Since the Mallard Lake Landfill is not a new MSWLF, and is more than 10,000 feet = from the Anderson Airport, pursuant to 329 IAC 10-16= -1, it is only required to complete “[n]otification to the affected airport = and the Federal Aviation Administration (FAA) of the intent to site a solid was= te land disposal facility.” KCCA has not demonstrated that the applicant and the IDEM failed to meet the requirements of 329 IAC 10-16-1.<= o:p>

15. The Landfill was constructed prior to 2000. Therefore, 49 U.= S.C. 44718 is not applicable.

&n= bsp;

FINAL ORDER

        &= nbsp;   IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petitions for Review filed by the Petitioners are DISMISSED.

        &= nbsp;   You are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Office of Environmental Adjudication serves as the Ultimate Authority in the administrative review of decisions of the Commissioner of = the Indiana Department of Environmental Management. This is a Final Order subject to Judicial Review consistent

&n= bsp;

[2011 OEA 2= 6, page 35 begins]

&n= bsp;

with ap= plicable provisions of I.C. § 4-21.5. Pursuant to I.C. § 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely only if it is filed with a civil court of compet= ent jurisdiction within thirty (30) days after the date this notice is served.

&n= bsp;

            IT IS SO ORDERED this 23rd day of March, 2011 in Indianapolis, IN.       &nb= sp;            =             &nb= sp;            =              &= nbsp;           &nbs= p;            &= nbsp;
Hon. Catherine Gibbs

Environmental Law Judg= e

[2011 OEA 26: end of decision]

2011 OEA 26 in .doc format

2011 OEA 26 in .pdf format

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