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Objection to the Issuance of NPDES Permit No. ING806568
John A. and Becky S. Stuber
2009 OEA 96, (07-W-J-4003)
[2009 OEA 9= 6, page 96 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 96, cite this case as
&nbs= p; John A. and Becky S. Stuber, 2009 OEA 96.
Topics:
hearing
Confined Animal Feeding Operation
CAFO
offer of proof
strike
Judicial Notice
seasonal high water table
concrete
perimeter drain
carcass management plan
land application
manure storage tanks
manure management plan
acres
setback
crop yields
soil conservation plan
surface water
ground water
Presiding Environmental Law Judge= :
Catherine Gibbs
Party representatives:
IDEM:
Petitioner: &nb= sp; &= nbsp; &nbs= p; James P. Fenton, Esq.; Eilbacher Fletcher LLP
Permittee/Respondent:&= nbsp; Daniel P. McInerny, Esq.; Bose McKinney & Evans LLP
Order issued:
July 29, 2009
Index category:
Water
Further case activity:
[None]
[2009 OEA 9= 6, page 97 begins]
STATE OF
&n= bsp;  = ; &n= bsp;  = ; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
COUNTY OF
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; )
NPDES PERMIT NO. ING= 806568 &= nbsp; &nbs= p; ) &= nbsp;
JOHN A. AND BECKY S.= STUBER &= nbsp; &nbs= p; )
____________________= ____________________ ) CAUSE NO. 07-W-J-4003
Carol Bone, Lee R &a= mp; Evaleen Smallwood, Phillip  = ; )
& Deborah Mitche= ll, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
Petitioners, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
John A. and Becky S.= Stuber, &= nbsp; &nbs= p; &= nbsp; )
Permittee/Respondent, &= nbsp; &nbs= p; )
Indiana Department o= f Environmental Management, &n= bsp; )
Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
FINDINGS OF FACT, CONCLUSIONS OF L=
AW AND
FINAL ORDER
This matter having c= ome before the Court for the final hearing held on February 17 and 18, 2009, on= the Petitioners’ Petition for Review; and the Court, being duly advised a= nd having read the pleadings, record and evidence and having heard the testimo= ny, finds that judgment may be made upon the record, makes the following findings of fact and conclusions of law and ent= ers the following Final Order:
Post-hearing
Motions
On April 17, 2009, t= he Petitioners filed Petitioners’ Proposed Findings As to Facts Submitte= d on Offer of Proof; Petitioners’ Request That the Court Take Judicial Not= ice of Facts Not Subject to Reasonable Dispute; and Petitioners’ Motion t= o Strike Testimony of Michael A. Veenhuizen. The Court, being duly advised and having read the motions and Permittee’s Response in Opposition to Petitioners’ Request That= the Court Take Judicial Notice of Facts Not Subject to Reasonable Dispute and Response in Opposition to Petitioners’ Motion to Strike Testimony of Michael A. Veenhuizen, now enters the following orders as to each motion:= p>
= 1. Petitioners’ Proposed Findings As to Facts Submitted on Offer of Proof: The Court had previously ruled that evidence regarding air emissions from the CAFO[1] and carcass management were irrelevant and immaterial to this matter. The Court AFFIRMS this ruling.
[2009 OEA 9= 6, page 98 begins]
=
=
2. Petitioners’
Request That the Court Take Judicial Notice of Facts Not Subject to Reasona=
ble
Dispute: The Court may take
judicial notice of facts that are “capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
questioned”[2] purs=
uant
to I.C. § 4-21.5-3-26(f)(1). Pursuant to I.C. § 4-21.5-3-26(f), official not=
ice
may be taken before the issuance of any order. Pursuant to Ind. Rules of Evidence
201(f), judicial notice may be taken at any stage during the proceeding.
3. Petitioners’
Motion to Strike Testimony of Michael A. Veenhuizen: The Court AFFIRMS the determination that Dr. Michael A. Veenhuizen is
qualified to testify as an expert regarding CAFOs in the State of
Statement of the =
Case
= 1.&n= bsp; On October 12, 2007, the Indiana Department of Environmental Management (the “IDEM”) issued NPDES Permit No. I= NG 806568 to John A. and Becky S. Stuber[7] (the Permittee) for the construction and operation of a Concentrated Animal Feeding Operation (CAFO) to be located at Section 25, Township 25 North, Ra= nge 8 East, Grant County, Indiana (the “Facility”).
[2009 OEA 9= 6, page 99 begins]
<= span style=3D'mso-list:Ignore'>2.&n= bsp; On October 22, 2007, Danford R. Pierce, Lee R. Smallwood, Evaleen Smallwood, Carol Bone, Deborah J. Mitchell and Philip Mitchell (collectively referred to as the Petitioners) filed a petition for review of the Permit with the Office of Environmental Adjudication.
<= span style=3D'mso-list:Ignore'>3.&n= bsp; On December 11, 2007, the Petitioners filed their Amended Verified Petition for Administrative Review.
<= span style=3D'mso-list:Ignore'>4.&n= bsp; Danford R. Pierce was dismissed at his request on J= uly 18, 2008.
<= span style=3D'mso-list:Ignore'>5.&n= bsp; The Permittee filed a Motion for Summary Judgment on March 5, 2008. The Petitioners filed their Response in Opposition to Motion for Summary Judgment on April = 18, 2008. The Permittee filed his= reply on May 5, 2008. The Motion for Summary Judgment was denied on July 18, 2008.
<= span style=3D'mso-list:Ignore'>6.&n= bsp; The OEA determined that genuine issues of material = fact existed which precluded summary judgment.&= nbsp; The presiding ELJ also determined that evidence regarding air emissi= ons and/or possible discharges from unknown land application areas were irrelev= ant and immaterial.
<= span style=3D'mso-list:Ignore'>7.&n= bsp; A hearing was held on February 17 and 18, 2009.
<= span style=3D'mso-list:Ignore'>8.&n= bsp; The Petitioners filed Petitioners’ Proposed Findings of Fact and Conclusions of Law; Proposed Findings of Fact As to Fa= cts Submitted on Offer of Proof; Petitioners’ Request That the Court Take Judicial Notice of Facts Not Subject to Reasonable Dispute; and Petitioners’ Motion to Strike Testimony of Michael A. Veenhuizen on A= pril 17, 2009.
<= span style=3D'mso-list:Ignore'>9.&n= bsp; The Permittee filed his Proposed Findings of Fact, Conclusions of Law and Final Order on April 17, 2009.
<= span style=3D'mso-list:Ignore'>10.&= nbsp; The Permittee filed Permittee’s Response in Opposition to PetitionersR= 17; Request That the Court Take Judicial Notice of Facts Not Subject to Reasona= ble Dispute and Response in Opposition to Petitioners’ Motion to Strike Testimony of Michael A. Veenhuizen on May 8, 2009.
FINDINGS OF FACT
<= span style=3D'mso-list:Ignore'>1.&n= bsp; On September 6, 2007, Livestock Engineering Solutio= ns, Inc., on behalf of John A. and Becky S. Stuber, submitted a General Permit Notice of Intent, General Permit Construction Notice of Intent and supporti= ng documentation (“NOI Materials”) in support of a Concentrated An= imal Feeding Operation (“CAFO”) to be located in Grant County, Indiana.
[2009 OEA 9= 6, page 100 begins]
<= span style=3D'mso-list:Ignore'>2.&n= bsp; On October 12, 2007, the Indiana Department of Environmental Management (the “IDEM”) issued NPDES Permit No. I= NG 806568 to John A. and Becky S. Stuber (the Permittee) for the construction = and operation of a CAFO to be located at Section 25, Township 25 North, Range 8 East, Grant County, Indiana (the “Facility”). The CAFO would consist of two wean-to-finishing buildings with concrete pits beneath slatted floors for t= he storage of liquid manure from approximately 648 nursery pigs and 3,672 finishing hogs each (for a total capacity of 1,296 nursery pigs and 7,344 finishing hogs).
<= span style=3D'mso-list:Ignore'>3.&n= bsp; The Permit was issued as a general permit under 327= IAC 15-15.
<=
span
style=3D'mso-list:Ignore'>4.&n=
bsp;
Pursuant to 327 IAC 15-15-4, the Facility may not
discharge manure, litter or process wastewater pollutants to the waters of =
the
State of
<= span style=3D'mso-list:Ignore'>5.&n= bsp; On October 22, 2007, Danford R. Pierce, Lee R. Smallwood, Evaleen Smallwood, Carol Bone, Deborah J. Mitchell and Philip Mitchell (collectively referred to as the Petitioners) filed a petition for review of the Permit with the Office of Environmental Adjudication.
<= span style=3D'mso-list:Ignore'>6.&n= bsp; The Stipulations of the Parties, entered into the record at the hearing on February 17, 2008, are attached and made a part of= the Court’s record.
<= span style=3D'mso-list:Ignore'>7.&n= bsp; The Petitioners presented evidence regarding the alleged deficiencies in the NOI Materials as follows:
- Deficiencies in t= he design of perimeter drains
- Deficiencies in t= he design of the manure storage tanks
- Deficiencies in t= he Manure Management Plan
- Deficiencies in t= he Management and Operation Plan regarding the calculation of &= nbsp; &nbs= p; &= nbsp; the number of acres needed for land application
- Failure to justify reduced setbacks for use of injection during land application
- Failure to present sufficient information regarding crop yield
- Failure to presen= t a carcass management plan
- Failure to identi= fy potentially threatened surface and ground waters
- Failure to submit an ad= equate soil conservation plan
- Failure to require greater setbacks from residences and public buildings
Further, the Petitioners argue that a general NPDES permit was inappropriate for this Fa= cility and an individual permit should have been required.
<=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
The Petitioners relied on the expert testimony of M=
s.
Kathy Martin. The Permittee r=
elied
on the expert testimony of Dr. Michael Veenhuizen. Dr. Veenhuizen prepared the NOI
Materials for the Facility and has consulted on many CAFOs in the State of =
[2009 OEA 9= 6, page 101 begins]
<= span style=3D'mso-list:Ignore'>9.&n= bsp; The Facility will be located on land with a seasonal high water table. The Permit includes the requirement that a perimeter drainage tile be installed to dra= in the soils surrounding the concrete manure storage structures and to act as = an interceptor drain. The perime= ter drain will be installed around each building below the base floor elevation= of the structures. Each building= has a collection sump and observation point.&nbs= p; The sump pumps will lift the collected water to a rock distributor p= oint toward a vegetative area.
<= span style=3D'mso-list:Ignore'>10.&= nbsp; The purpose of the perimeter drain is to protect the structural integrity of the floor of concrete manure structures, particularly before the pigs are put i= nto the buildings.
<= span style=3D'mso-list:Ignore'>11.&= nbsp; Ms. Martin testified that the NOI Materials provided insufficient detail to all= ow for a determination that the perimeter drain meets the requirements in the regulations. Dr. Veenhuizen testified that sufficient information had been provided to meet the IDEM performance standards.
<= span style=3D'mso-list:Ignore'>12.&= nbsp; The NOI Materials[8] cont= ain the specifications for the manure storage structures. Amongst other requirements, the structures will be constructed from Type I, IA, II or IIA Portland cement.[9] The NOI Materials state that the preferred type of concrete is Type I with an added air entrainment admixture. Further, the NOI Materials specify that concrete shall conform to the ACI Manual of Concrete Practices, ACI 301 and the structures shall have a particular minimum compressive strength.
= 13.&= nbsp; Ms. Martin testified that the NOI Materials do not contain sufficient informati= on to allow IDEM to determine whether the structures will be constructed in su= ch a way as to minimize leaking or seepage as required by the regulations. In particular, the NOI Materials d= o not specify the permeability of the concrete or require the use of Type V Portl= and cement. Ms. Martin believed t= hat Type V Portland cement was necessary because of the highly corrosive nature= of hog manure.
= 14.&= nbsp; The Court has taken judicial notice of the fact that Type II Portland cement is “used for structures in water or soil containing moderate amounts of sulfate” and that Type V Portland cement “resists chemical atta= ck by soil and water high in sulfates”.= However, Dr. Veenhuizen testified that, based on his review of applicable literature, the NOI Materials proposal to use Type I, high-quali= ty, air entrained concrete with a compressive strength of 4,000 PSI and a water-cement ratio of 0.50 and concrete cover of 2 inches over the reinforcement bar is suitable for manure storage structures.
= 15.&= nbsp; The Manure Management Plan, as submitted in the NOI Materials and as approved by the Permit and applicable regulations require manure and soil sampling prio= r to the initial land application and at various times so that manure will be applied at the appropriate agronomic rate.
[2009 OEA 9= 6, page 102 begins]
=
16.&=
nbsp; The
Permittee identified 922 acres available for land application of the hog ma=
nure
produced by the CAFO. The IDE=
M,
using its guidance[10]=
a>,
calculated that a minimum of 508.2 acres was required for land application,
based on the number and size of the hogs.&=
nbsp;
The IDEM guidance is based on a publication from
[2009 OEA 9= 6, page 103 begins]
CONCLUSIONS OF LAW
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. all issues =
are to
be determined anew, based solely upon the evidence adduced at that hearing =
and
independent of any previous findings. Grisell
v. [2009 OEA 9=
6, page 104
begins] 9810570/FID #1054, New Castle, Henry C=
ounty,
Indiana; Winimac Service, ELF #9609539/FID #14748, Winimac, Pulaski County,
Indiana; HydroTech Consulting and Engineering, Inc. (04-F-J-3338), 2005 OEA 26, 41. 8=
. The
Petitioners in this case have not challenged the rules governing CAFOs, but
have challenged whether the Permit issued in this matter complies with the
applicable rules and is consistent with guidance published by the IDEM. This Court’s review is limited to =
that
question. Any evidence that t=
he
rules and guidance contain errors cannot serve as support for the conclusion
that the Permit in this case is
invalid as the Petitioners have not directly challenged the rules and guida=
nce,
but are challenging whether the Permit was issued in compliance with the ru=
les
and guidance. 9=
. In
addition, the Court finds that, while both expert witnesses are certainly
qualified to testify as experts in this matter, Dr. Veenhuizen is more
persuasive as he has a greater familiarity with the Facility and with [2009 OEA 9=
6, page 105
begins] Perimeter Drain Manure Storage Tanks [2009 OEA 9=
6, page 106
begins] Manure Management Plan Land Application Acres 1=
7. The
Petitioners have failed to present sufficient evidence that the Permittee d=
oes
not have adequate acreage on which to land apply the waste. The evidence consisted of testimon=
y by
Ms. Martin that the guidance document used by the IDEM to calculate the num=
ber
of acres needed for land application has an error of 30%[12]=
a>. The IDEM presented evidence that, =
in
compliance with applicable guidance, the number of acres needed was 508.2.<=
span
style=3D'mso-spacerun:yes'> The Permittee has 922 acres availa=
ble. Even accounting for the alleged 30%
error,[13]=
a>
the Permittee has adequate acreage for land application as calculated using
IDEM guidance. The Petitioner=
s did
not present substantial evidence that the number of acres needed for land
application was inconsistent with either the regulations or the guidance.=
p>
1=
8. Specu=
lation
that the erroneous calculation of acres would lead to the over application =
of
manure is insufficient to support a conclusion that the Permit is
deficient. 327 IAC 16-10-2 re=
quires
that “the agronomic rate for potentially available nitrogen must not
exceed the nitrogen requirements of current or planned crops of the upcoming
growing season” and 327 IAC 16-6-1(e)(2) requir=
es
that “all
manure application must be in accordance with agronomic rates for potential=
ly
available nitrogen as documented in records at the confined feeding operati=
on.” Various provisions in 327 IAC 15-1=
5,
including 327 IAC 15-15-4 and 327 IAC 15-15-10 regulate the rate and manner=
in
which manure may be applied. =
327
IAC 15-15-12 requires that land application rates must conform to certain
published standards. If the
Permittee fails to properly calculate the agronomic rate and over-applies
manure, this could be a violation.
Speculation that a permittee will not comply with the regulations is=
not
sufficient to support a conclusion that the Permit is invalid. [2009 OEA 9=
6, page 107
begins] Land Application Setbacks <=
span
style=3D'mso-list:Ignore'>19.&=
nbsp; The
Petitioners argue that the Permittee has failed to provide sufficient
justification for reduced setbacks.
The method of land application chosen by the Permittee is injection.=
327 IAC 15-15-5(b)(1)(O) requires =
that
an applicant seeking to use the land application setbacks for injection must
demonstrate that this method will provide as much environmental protection =
as
the usual setbacks. 327 IAC
15-15-12(l) provides the setback distances when a permittee is injecting ma=
nure. Injection incorporates the manure =
into
the soil thereby minimizing nutrient loss to the air and ground water and
reducing the potential for run-off to surface water. Therefore, the Permittee adequately
demonstrated that injection will provide as much environmental protection as
the usual setbacks. The Petit=
ioners
have failed to present substantial evidence that the IDEM erred in approving
the reduced setbacks. Crop Yield Inf=
ormation <=
span
style=3D'mso-list:Ignore'>20.&=
nbsp; Information
regarding crop yields is not required to be submitted as part of the NOI. Carcass Manage=
ment =
21. Pursu=
ant to
327 IAC 15-15-4(g)(7), the Facility may not dispose of mortalities in a Surface and Gr=
ound
Water Contamination =
22. The
Petitioners presented no persuasive evidence that surface or ground water w=
ould
be contaminated by the Facility.
There was no evidence of any contamination from prior land applicati=
on
activities in the vicinity of the Petitioners’ residences. No persuasive evidence was introdu=
ced
that the manure management structures would leak as a result of improper
design. Any allegations that
surface or ground water contamination would occur as the result of violatio=
ns
of the applicable statutes or regulations do not serve as a basis for
overturning the approval of this Permit. [2009 OEA 9=
6, page 108
begins] Soil Conservat=
ion Plan =
23. Pursu=
ant to
327 IAC 15-15-11, CAFOs must develop and implement soil conservation
plans. The soil conservation =
plan
is not required to be part of the NOI.&nbs=
p;
The absence of a soil conservation plan is not relevant to the issue=
of whether
the permit should have issued.
Setbacks for W=
aste
Management Systems =
=
24. 327 I=
AC
16-8-2(e) allows the IDEM to impose greater setback distances if necessary =
to
protect human health or the environment.&n=
bsp;
The Petitioners argue that IDEM should have imposed greater setback
distances because of the air emissions from the CAFO. However, the Petitioners did not p=
resent
substantial evidence that the IDEM was unaware of potential emissions and
failed to consider the effect of the exhausting of nitrogen and dust when it
reviewed and approved the design standards. There is no indication that this p=
rocess
is insufficient to protect human health and the environment. An individual =
NPDES
permit is not required. =
25. The
Petitioners have failed to produce substantial evidence that the Facility or
the Permittee meet any of the conditions that justify the requirement for an
individual permit under 327 IAC 15-15-9(a). FINAL ORDER AND THE COURT=
, being
duly advised, hereby ORDERS, ADJUDGES AND DECREES that judgment shall be entered in favor=
of
the Respondents. The
Petition for Review is DISMISSED. You are hereby furth=
er
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 administ=
rative
review of decisions of the Commissioner of the Indiana Department of
Environmental Management. Thi=
s is a
Final Order subject to Judicial Review consistent with applicable provision=
s 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. IT IS SO OR=
DERED
this 29th day of July, 2009 in Indianapolis, IN. Hon. Catherine Gibbs=
p>
Environmental Law Judg=
e [2009 OEA 96: end of
decision] 2009
OEA 96 in .doc format 2009
OEA 96 in .pdf format Under 327 IAC 15-15-4(h)(1), CAFOs=
must
maintain operating records.
Information regarding expected crop yields must be maintained for a
period of five (5) years after the issuance of the permit. The Petitioners have failed to pre=
sent
substantial evidence that the Permit was improperly issued for failure to
include crop yield information in the NOI Materials.
[1] Concentrated Animal Feeding Operation
[2]
[3] Page 92, paragraph 4, General Permit Notice of Intent, General Permit Construction Notice of Intent and Supporting Documentation, PetitionersR= 17; Exhibit 1A, received September 7, 2007 by the IDEM.
[4]
[5] www.cement.org/basics/concretebasics_facqs.asp
[6]
The source was a study from
[7] Mrs. Stuber is deceased.
[8] Marked as Plaintiff’s Exhibit 1A, pages 72 and 92.
[9] Plaintiff’s Exhibit 1A, page 92.
Objection to the Issuance of NPDES Permit No. ING806568
John A. and Becky S. Stuber
2009 OEA 96, (07-W-J-4003)