OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA X, cite this case as

Objection to the Issuance of Part 70 Operating Permit Renewal No. T039-24536-00538

VIM Recycling Inc.

Elkhart, Elkhart County, Indiana

2009 OEA 86, (09-A-J-4257)

[2009 OEA 8= 6, page 86 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 86, cite this case as &= nbsp;

&nbs= p; Vim Recycling, Inc., 2009 OEA 86.

Topics:

dismissal

Petition for Review

filing

I.C. § 4-21.5-3-2

I.C. § 4-21.5-3-7

receipt

effective &n= bsp;

Presiding Environmental Law Judge= :

Catherine Gibbs

Party representatives:

IDEM: = ; &n= bsp; = ; Valerie Tachtiris, Esq.

Petitioners: &nbs= p; &= nbsp; &nbs= p; Kim Ferraro, Esq.; Legal Environmental Aid Foundation

Permittee/Respondent:&= nbsp; &= nbsp; Amy Romig, Esq.; Plews Shadley Racher & Braun

Order issued:

July 16, 2009

Index category:

Air

Further case activity:

[none]

[2009 OEA 8= 6, page 87 begins]

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

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

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

IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; )

OBJECTION TO THE ISS= UANCE OF &= nbsp; &nbs= p; )

PART 70 OPERATING PE= RMIT RENEWAL &= nbsp; ) &= nbsp;

NO. T039-24536-00538= &= nbsp; &nbs= p; &= nbsp; )<= /p>

VIM RECYCLING INC. &= nbsp; &nbs= p; &= nbsp; )

ELKHART, ELKHART COUNTY, INDIANA )

____________________= ____________________ ) CAUSE NO. 09-A-J-4257

Baugo North Neighbor= hood Group, et al., = )

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

VIM Recycling, Inc.,= &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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

Indiana Department of Environmental Management, = )

<= /span>Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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

This matter having come b= efore the Court on VIM Recycling, Inc.’s Motion to Dismiss, which pleading = is a part of the Court’s record; and the Court, being duly advised and hav= ing read the record, motion, responses and reply now enters the following findi= ngs of fact, conclusions of law and final order:

Findings of Fact

= 1. On April 8, 2009, the Indiana Department of Environmental Management (the “IDEM”) issued Part 70 Operating Permit Renewal No. T039-24536-00538 (the “Permit”) to VIM Recycling, Inc. (“VIM”) for the facility located at 29861 Old U.S. Highway 33, Elkhart, Indiana (the “Site”).

= 2. Service of notice was sent by U.S. mail on April 9, 2009 to several persons who expressed interest, including = but not limited to Mrs. Joyce Bellows, Wayne Stutsman, and Kim Ferraro.

= 3. The Petitioners, Baugo North Neighborhood Group, by its representative members, Joyce Bellows, Wayne Stutsman, Barbara Stutsman and Edgar Bellows (the “Neighborhood Group”) filed their Petition for Administrative Review and Stay of Effectiveness on April 29, 2009.

= 4. It is unknown when Mrs. Bellows or Mr. Stutsman received the Notice. Kim Ferraro, the Petitioners’ attorney, received the Notice of Decision on April 20, 2009.

[2009 OEA 8= 6, page 88 begins]

Conclusions of Law=

= 1. The Indiana Department of Environmental Management (“IDEM”) is authorized to implement and enforce specified Indiana environmental laws, and rules promulgated relevant to those laws, per I.C. § 13-13, et seq. The Office of Environmental Adjudic= ation (“OEA”) has jurisdiction over the decisions of the Commissioner= of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.<= span style=3D'mso-bidi-font-weight:bold'>

<= /p>

= 2. 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.

<= /p>

= 3. This office must apply a de novo standard of review to this proceeding wh= en determining the facts at issue. Indiana Dept. of Natural Resources v. Uni= ted 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). “De novo review” means that:

<= /p>

all issues = are to be determined anew, based solely upon the evidence adduced at that hearing = and independent of any previous findings.

Grisell v. = Consol. City of <= st1:City w:st=3D"on">Indianapolis, 425 N.E.2d 247 (Ind.C= t.App. 1981).

<= /p>

= 4.&n= bsp; I.C. § 4-21.5-3-2, in pertinent part, states: =

(c) A period of time under this article that commences = when a person is served &n= bsp; with a paper, including the period in which a person may petition for judicial <= span style=3D'mso-tab-count:1'> review, commences with respect to a particular person on the earlier of the date that:

(1) = the person is personally served with the notice; or=

(2) = a notice for the person is deposited in the United States mail.

. . .

(e) If a notice is served through th= e United States mail, three (3) days must be added to a period that commences upon service = of that notice.

5.&n= bsp; I.C. § 4-21.5-3-7(a)(3)(A) states that a Petit= ion for Review must be filed “within fifteen (15) days after the person is given notice of the order or any longer period set by statute”. I.C. § 13-15-6-1(a) iterates this time frame. I.C. § 4-21.5-3-2(e) adds thr= ee (3) days if service is by U.S. mail so a petition for review should be filed wi= thin eighteen days.

6.&n= bsp; As the Permit in question is a renewal of a Title V= air permit, the Petition for Review must have been filed within 15 days “after the person is given notice or “any longer period set by statute.” The Notice of Decision was deposited in the United States mail on April 9, 2009. Therefore, a petition for review s= hould have been filed within eighteen days or on or before April 27, 2009.

7.&n= bsp; The Notice of Decision sent to the Petitioners stat= es, in relevant part:

For a Title= V Operating Permit renewal, a petition for administrative review must be submitted to the Office of Environmental Adjudication with fifteen (15) days from the receipt of this notice provided under I.C. § 13-15-5-3, pursu= ant to I.C. § 13-15-6-1(a).

8.&n= bsp; The Petitioners argue that the use of the word “receipt” sets a different time frame for filing a petition for review. They rely on I.C. &se= ct; 4-21.5-3-6(d) which states that an order is effective fifteen days after the order is served, unless a statute other than this article specifies a different date = or the agency specifies a later date in its order.

= 9.&n= bsp; I.C. § 4-21.5-3-3(c) st= ates:

(c)&= nbsp; An order is effective when it is issued as a final order under this chapter, except to the extent that:

(1) = a different date is set by this article;

(2) = a later date is set by an agency in its order; or

(3) = an order is stayed.

10.&= nbsp; The above statutes extend the effective date of an order; it does not extend the time frame for filing a petition for review. Pursuant to I.C. § 4-21.5-3-7= (a)(3)(A), a petition for review must be filed “within fifteen (15) days after t= he person is given notice of the order or any longer period set by statute.= 221; IDEM does not have the authority to extend the time deadline for filing a petition for review. Only the state legislature may ena= ct a statute specifying a different time frame.

11.&= nbsp; The Permit in question here is a renewal of a Title V Air Permit. Notice of IDEM’s decision was mailed by U.S. mail. The petition for review= must have been filed within eighteen days, therefore no later than April 27, 200= 9.

FINAL ORDER<= /span>

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition for Review filed by Petitioners is hereby DISMISSED.

You are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7.5, the Office of Environmental Adjudicat= ion 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 filed with a ci= vil court of competent jurisdiction within thirty (30) days after the date this notice is served.

IT IS SO ORDERED this 16th day of July, 2009 in Indianapolis, IN. &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = &= nbsp; &nbs= p; &= nbsp; &nbs= p;

= &nb= sp; = &nb= sp; = Hon. Catherine Gibbs

Environmental Law Judg= e

[2009 OEA 86: end of decision]

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