Obje=
ction
to Approval of Renewal, Solid Waste Facility Permit No. FP 46-09
2011=
OEA
73, (10-S-J-4432)
[2011 OEA 73, page 73 begins]
OFFICIAL
SHORT CITATION NAME: <=
/b>When referring to 2011 OEA 73 cite this case as
&nbs=
p;
TOPICS:
Solid
Waste Transfer Station
Solid Waste Facility Permit
Initial permit
permit renewal application
120 days
road cut
driveway permit
collateral estoppel
Notice pleading
Motion for Judgment on the Pleadings
I.C. § 13-15-4-6
I.C. § 13-15-4-9(2)
329 IAC 11-9-2(a)(12)
329 IAC 11-9-2(h)
329 IAC 11-9-4
329 IAC 11-9-49d)
Ind. Trial Rule 9.2
Ind. Trial. Rule 12(C)
City of
JM Corp., 2011 OEA 26
PRESIDING
JUDGE:
Mary
L. Davidsen
PARTY
REPRESENTATIVES:
IDEM: &n=
bsp; =
; &n=
bsp; April
D. Lashbrook, Esq.
Petitioners: &=
nbsp; &nbs=
p; Dougl=
as
L. Biege, Esq., (
Gwenn R. Rinkenberger, Esq., (
Respondent/Permittee: John Lloyd, Esq.; Krieg DeVault LLP=
&=
nbsp; &nbs=
p; &=
nbsp; &nb=
sp; Barry
F. McDonnell, Esq.
ORDER
ISSUED:
June
9, 2011
INDEX
CATEGORY:
Land
FURTHER
CASE ACTIVITY:
[none]
[2011 OEA 73, page 74 begins]
STATE
OF
) =
; &n=
bsp; OF
ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF:<=
span
style=3D'mso-tab-count:3'> &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
=
=
&nb=
sp; =
&nb=
sp; =
&nb=
sp; =
)
OBJECTION TO THE
APPROVAL OF RENEWAL =
)
SOLID
WASTE FACILITY PERMIT NO. FP 46-09 &nb=
sp; )
_____________________________________________ ) &=
nbsp; CAUSE
NO. 10-S-J-4432
Porter
Porter
County Highway Department, =
; Monte
Struyf, =
)
LaPorte
LaPorte
Petitioners=
, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Permittee/R=
espondent, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Indiana
Department of Environmental Management,&nbs=
p; &=
nbsp; )
Respondent<=
span
style=3D'mso-tab-count:6'> &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
=
FINDINGS OF FACT, CONCLUSIONS OF LAW and FIN=
AL
ORDER
=
This
matter came before the Office of Environmental Adjudication (“OEAR=
21;
or “Court”) on the March 10, 2011 Motions for Judgment on the
Pleadings filed by Respondent, Indiana Department of Environmental Manageme=
nt,
and by Permittee/Respondent, Great Lakes Transfer, LLC, as to whether to
dismiss Petitions for Administrative Review filed by Petitioner Porter Coun=
ty
Board of Commissioners and Porter County Highway Department (“Porter
County”) and the LaPorte County Board of Commissioners and LaPorte Co=
unty
Health Department (“LaPorte County”) for judgment on the pleadi=
ngs
for failure to state a claim for relief.&n=
bsp;
Petitioners Porter County and LaPorte County also filed a February 1=
8,
2011 Petition for Temporary Stay of Proceedings as to whether administrative
litigation of this cause should be stayed, pending a decision concerning ro=
ad
access now pending before the Indiana Court of Appeals.
=
The
Chief Environmental Law Judge (“ELJ”), having considered the
petitions, evidence, and pleadings of the parties, now finds that judgment =
may
be made upon the record. The =
Chief
ELJ, by substantial evidence, and being duly advised, now makes the followi=
ng
findings of fact and conclusions of law and enters the following Final Orde=
r:
<= o:p>
F=
INDINGS
OF FACT
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>1. &n=
bsp;
On
November 9, 2005, the Indiana Department of Environmental Management (̶=
0;IDEM”)
approved Solid Waste Facility Permit FP 46-09 (“Permit”) to Gre=
at
Lakes Transfer, LLC (“
[2011 OEA 73, page 75 begins]
station on property
located at
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>2. &n=
bsp;
3. Petitioners raised=
the
following challenges to IDEM’s issuance of the initial Permit:
a) Although Great
Lakes’ permit application showed road access, the application was
incomplete because
c) &n=
bsp;
Due
process rights of the Towns and their citizens were violated.
d) &n=
bsp;
There
was a significant adverse effect on public health and the environment.
e) &n=
bsp;
The
permit application did not meet relevant requirements.
f) &n=
bsp;
The
facility would not be constructed and operated according to the relevant
statutes.
Board of Commissioners of LaPorte County, Board of
Commissioners of Porter County, Town of Beverly Shores and Town of Pines vs.
Great Lakes Transfer, LLC and the Indiana Department of Environmental
Management,
888 N.E.2d 784, 787 (Ind. Ct. App. 2008) .
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>4. &n=
bsp;
The
initial Permit was sustained on administrative review, Great Lakes Transfer Station SWFP, 2006 OEA 24, on judicial rev=
iew
by the Marion County Superior Court, Cause
49F12-0610-PL-044019, and on appellate review. 888 N.E.2d 784 (
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>5. &n=
bsp;
The
initial Permit was set to expire, by operation of law, on November 1,
2010.
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>6. &n=
bsp;
The
transfer station has not been constructed or operated.
[2011 OEA 73, page 76 begins]
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>7. &n=
bsp;
Porter
County Board of Commissioners (and named Commissioners) and Porter County
Highway Department timely petitioned for administrative review of the Renew=
al
on November 19, 2010. LaPorte
County Board of Commissioners (and named Commissioners) and LaPorte County
Health Department timely petitioned for administrative review of the Renewa=
l on
November 23, 2010, as did Monte Struyf.[3]
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>8. &n=
bsp;
An
initial prehearing conference on the petitions for administrative review was
held as rescheduled on January 26, 2011.&n=
bsp;
Based on the parties’ expectation that the Counties might file=
a
Petition for Temporary Stay of Proceedings, the Court issued a Report of
prehearing conference and case management order concerning temporary stay
briefing on January 27, 2011.
9. The parties do not
dispute that Road cut access is subject to the jurisdiction of the Porter
County Board of Commissioners and the Porter County Highway Department. Porter
Co. Pet., p. 4. The Count=
ies
based the majority of their similar petitions for administrative review on =
a) The property is cl=
ose to
wetlands and to
b) After the Permit w=
as
issued, property on the other side of the
c) If a Permitted fac=
ility
is not constructed, it cannot be renewed.
d) The
application for Renewal was untimely filed less than 120 days before the Pe=
rmit
expired.
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>10.
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>11. The Counties’
February 18, 2011 Petition for Temporary Stay of Proceedings seeks to place
litigation of this cause in abeyance, so as to conserve litigant and Court
resources until the plenary appeal of
[2011 OEA 73, page 77 begins]
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>12. Respondents sought=
to
conserve litigant and Court resources by terminating the administrative cau=
se
via judgment on the pleadings. IDEM’s March 10, 2011 Response t=
o the
Counties’ Petition for Temporary Stay, its Motion for Judgment on the
Pleadings and supporting memorandum; Respondent Great Lakes’ March 10,
2011 Response to the Counties’ Petition for Temporary Stay.
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>13. In its March 10, 2=
011
Response, IDEM asked the Court to deem the pleadings closed per 315 IAC 1-3=
-2,
correctly noting that more than thirty days had passed since the January 26,
2011 initial prehearing conference.
<=
span
style=3D'font-size:12.0pt;font-family:"Times New Roman"'>14. On April 8, 2011, =
the
Counties addressed IDEM’s and
&=
nbsp; &nbs=
p; &=
nbsp;
C=
ONCLUSIONS
OF LAW
1.&n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.5-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.
3.&n=
bsp;
In their Motions for Judgments on the Pleadings, bo=
th
Respondent IDEM and Permittee Great Lakes seek to dismiss the Counties̵=
7;
Petitions for Administrative Review.
Judgment on the pleadings, per Ind. Tria=
l Rule
12(C), may be sought after the pleadings are closed. In this case, more than thir=
ty
days have passed since the time when the Counties could amend their Petitio=
ns
as a matter of right. 315 IAC=
1-3-2(e). The Counties have not obtained lea=
ve of
Court or the parties’ written consent to amend their Petitions.
[2011 OEA 73, page 78 begins]
4.&n=
bsp;
Per T.R. 12(C), after the pleadings are closed, any
party may move for judgment on the pleadings. “A motion for judgment on the
pleadings tests the sufficiency of the complaint to state a redressable cla=
im,
not the facts to support it. Steel=
e v.
McDonald's Corp., 686 N.E.2d 13=
7, 141
(Ind. Ct. App. 1997), tr=
ans.
denied. The test to be applied is whether the allegations of the compla=
int,
taken as true and in the light most favorable to the non-movant and with ev=
ery
intendment regarded in his favor, sufficiently state a redressable claim. <=
st1:State
w:st=3D"on">
5.&n= bsp; In considering Respondents’ Motions for Judgm= ents on the Pleadings, the Court will consider the Counties’ Petitions, in addition to the Counties’ Motions to Stay Proceedings, their response= s to the Respondents’ Motions for Judgments on the Pleadings and replies to Respondents.
6.&n=
bsp;
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue. 315 IAC 1-3-10(b); Indiana Dept=
. of
Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993), Indiana-Kentucky Electric v.
Commissioner, Indiana Department of Environmental Management, 820 N.E.2d 771 (Ind. C=
t.
App. 2005). Findings of fact =
must
be based exclusively on the evidence presented to the Environmental Law Jud=
ge
(“ELJ”), I.C. § 4-21.5-3-27(d). Deference to the agency’s in=
itial
determination is not allowed.
[2011 OEA 73, page 79 begins]
7.&n=
bsp;
OEA is required to base its factual findings on sub=
stantial
evidence. Huffman v. Office of Envt=
l.
Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of OEA review of NPDES
permit); see also I.C. §
4-21.5-3-27(d). While the par=
ties
disputed whether IDEM’s issuance of Renewal to
8.&n= bsp; Respondents IDEM and Great Lakes seek favorable judgment on the pleadings, for the reasons that Petitioners fail to state a claim upon which relief can be granted on the issue that Great Lakes did not submit a sufficient or timely renewal application, and, for all other issue= s, that the prior adjudication of the original permit bars relitigation of identical issues raised in challenge to the original permit’s renewal.
9.&n=
bsp;
Issues which were, or which could have been litigat=
ed
in challenges to the initial permit may not be relitigated in the
Counties’ administrative challenge to the initial permit’s
renewal. Litigation of the in=
itial permit
concluded with the Indiana Court of Appeals’ decision in Board of Commissioners of
10.&=
nbsp; The
parties to this instant case, challenging the initial permit’s renewa=
l,
are: the Porter County Board =
of
Commissioners (and named Commissioners), Porter County Highway Department,
LaPorte County Board of Commissioners (and named Commissioners), LaPorte Co=
unty
Health Department and Monte Struyf.
Mr. Struyf’s petition for administrative review is being deter=
mined
on other grounds, in a separate order.&nbs=
p;
Although the Town of Beverly Shores and the Town of
[2011 OEA 73, page 80 begins]
11.&=
nbsp; In
12.&=
nbsp; The
issues raised by petitioning Counties in their challenge to Great LakesR=
17;
initial permit were litigated=
and
decided by this Court on September 12, 2006 during administrative review of=
Issues decided =
in
the administrative challenge to the initial permit cannot be retried in this
cause, the administrative challenge to the initial permit’s renewal.<=
span
style=3D'mso-spacerun:yes'> Collateral estoppel or issue precl=
usion
bars subsequent litigation of an issue necessarily adjudicated in a former =
suit
if the same issue is presented in the subsequent suit. “Bourbon Mini-Mart, Inc. v. Gast Fuel & Servs=
., Inc., 783 N.E.2d 253, 257 (Ind. 2003) (qu=
oting Shell Oil Co. v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998)).
[2011 OEA 73, page 81 begins]
7. &n=
bsp;
Petitioners
and Intervenor [
8. &n=
bsp;
Petitioners
and Intervenor have also complained that IDEM’s Environmental Strateg=
ic
Justice Plan will be violated by issuance of the permit because residents of
the area will be disproportionately affected by pollution. Petitioners and Intervenors have
presented no evidence indicating that indeed the issuance of the permit will
result in pollution or other negative environmental impacts upon the local
residents that might trigger any environmental justice issues. Speculation that the transfer stat=
ion
may lead to additional pollution is again an operational issue that is not
within the jurisdiction of the OEA.
Petitioners and Intervenors have likewise not presented any evidence
demonstrating how the Environmental Strategic Justice Plan is incorporated =
into
the permitting process. The
regulations governing issuance of transfer station permits does not allow I=
DEM
to deny a permit based solely upon environmental justice issues. The existence of disputed facts
concerning compliance with or violation of the Environmental Strategic Just=
ice
Plan present no genuine issue of material fact as to whether the moving
parties, Great Lakes and IDEM, are entitled to judgment as a matter of
law.
9. &n=
bsp;
While
Petitioners have shown that their legal interest in enforcing road weight
limits, local zoning and building permit regulations is aggrieved and adver=
sely
affected should Great Lakes’ not comply with applicable regulations,
including lack of a road-cut permit because if the alleged harm, i.e., the
alleged inability to construct an access road because Great Lakes lacks a r=
oad
cut permit, such condition will also prevent IDEM from allowing Great Lakes=
to
operate if in fact that condition is true. . . .
15. . . . 329 IAC 11-9=
-2(h)
only requires that
16.
[2011 OEA 73, page=
82
begins]
§=
§
10.024.050, 10.024.060. This =
Court
does not have the jurisdiction to consider traffic issues that are within t=
he
province of local municipalities.
Both the jurisdiction to consider such traffic issues, and the
enforcement power to enforce local regulations cannot be encroached upon by
this Court, should operation of the Transfer Station in fact harm
17.
14=
. The
Counties’ Petitions show that the issues they raised in challenge to =
the
renewal were already decided in Gre=
at
Lakes Transfer SWPF I, except for the issue of timeliness of the renewal
application. Except for the i=
ssue
of the timeliness of
15= . The Counties’ Petitions raise “the following issues from the public comment section: . . . 4. Comment: The Notice of Application to L= ocal Officials states that the permit application is “for a renewal to continue operations at the facility.” There has never been any construct= ion at the site.” = Petitions, p. 7 of each. As the Counties later cite in their briefs opposing Respondents’ 12(C) Motion, 329 IAC 11-9-4 states requirements for facilities which are not constructed before the permit mus= t be renewed. The Counties provide= no further legal authority for the Petitions’ contention that a facility must be constructed in order to be renewed. Respondents are entitled to judgme= nt on the evidence on this issue.
[2011 OEA 73, = page 83 begins]
16= . The Counties seek to defeat collateral estoppel on the issue of building and zo= ning permits based on a change in relevant renewal application regulations made after Great Lakes SWPF 1 was decided. For facilities which= are not constructed before the permit must be renewed, “the renewal application must include any construction and operation requirements as specified in this article, as amended in 2010, and applicable to the facility.” 329 IAC 11-9= -4(d) (June 28, 2010). 329 IAC 11-9-2(a)(12) (June 28, 2010) requires that:
a. = a complete application for a solid waste facility permit must consist of the following information, submitted to [IDEM] . . . (12) Documentation from the zoning authority that proper zoning approvals have been obtained and one (1= ) or more of the following documents, as applicable:
(A) A copy of the zoni=
ng
requirements, if any, for solid waste facilities in the area where the faci=
lity
is to be located.
(B) The status of any
appeals of any zoning determination and, if none pending, the date by which=
the
appeal must be initiated.
17. Per the 2010 versions of 329 IAC 11=
-9, et seq.,
18. The Counties base =
an
objection to the permit Renewal on the contention that IDEM lacked authorit=
y to
issue a renewal when the renewal application was filed less than 120 days
before the permit expired. It=
is
undisputed that
[2011 OEA 73, page 84 begins]
boards,
the existing permit does not expire until a final determination on the appl=
ication
has been made by” IDEM.
Applications for renewal must be submitted at least 120 days prior to
the date the initial permit expires.
329 IAC 11-9-4. Constr=
ued
together, the above statute and rule provide that if a permittee files a
renewal application less than 120 days before the initial permit expires, t=
hen
the permit may expire before IDEM issues a determination, if IDEM does not
renew the initial permit prior to its expiration date. When a permit’s
renewal application is timely filed, the effectiveness of an initial permit=
is
administratively extended, 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 may expire before I=
DEM
can make a determination. The=
re is
no provision that the IDEM is then precluded from completing its review and
issuing the renewal prior to the initial permit’s expiration, as it d=
id
in this case. The allegations=
of
the Counties’ Petitions, taken as true and in the light most favorabl=
e to
them and with every intendment regarded in their favor, present no material
issues of fact. The facts
shown by the pleadings clearly entitle Respondents to entry of judgmen=
t on
the pleadings in their favor.
FINAL ORDER=
&=
nbsp; For
all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR=
EED
that Respondent Great Lakes Transfer, LLC’s and the Indiana Departmen=
t of
Environmental Management’s request to close Petitioners’ pleadi=
ngs
per 315 IAC 1-3-2(e) is GRANTED and Motion for Judgment on the Evidence is GRANTED. The Petitions for Administrati=
ve
Review filed by Porter County Board of Commissioners, Porter County Highway
Department, LaPorte County Board of Commissioners and LaPorte County Health
Department are DISMISSED. All
further proceedings are VACATED.
&=
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 with applicable 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 fi=
led
with a civil court of competent jurisdiction within thirty (30) days after =
the
date this Notice is served.
Hon. Mary L. Davidsen Chief Environmental Law Judge [2011 OEA 73: end of decision] 2011
OEA 73 in .doc format 2011
OEA 73 in .pdf format
[1]
Petitions for Administrative Review of the initial Permit were filed by Tow=
n of
[2]
Great Lakes sought a driveway permit on the county line road at
[3] Mr. Struyf’s petition for administrative review is subject to a Janua= ry 24, 2011 Notice of Proposed Order for Dismissal for failure to respond to a November 30, 2010 Notice of Incomplete Filing and Order to Supplement Petit= ion, and is addressed in a separate Final Order.
Obje=
ction
to Approval of Renewal, Solid Waste Facility Permit No. FP 46-09
2011=
OEA
73, (10-S-J-4432)