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

Objection to the Denial of Construction and Operating Permit <= /o:p>

Application No. FP-23-03, Greenview Recycling and Disposal Facility= ,

Fountain County, Indiana

2009 OEA 21, (08-S-J-4159)

[2009 OEA 2= 1, page 21 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 21 cite this case as

= ; Greenview Recycling and Disposal, 2009 OEA 21.

Topics:

jurisdiction

protective filing

dismissal

trial court

exclusive jurisdiction

Presiding Environmental Law Judge= :

Catherine Gibbs

Party representatives: <= /o:p>

IDEM: = ; Timothy Junk, Esq.

Petitioner: = ; Donn H. Wray, Esq., Mickey J. Lee, Esq.; Stewart & Irwin, P.C.

Order issued:

March 24, 2009

Index category:

Land

Further case activity: <= /o:p>

[none]

[2009 OEA 2= 1, page 22 begins]

STATE OF INDIANA &= nbsp; &nbs= p; ) &= 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; &= nbsp; &nbs= p; )

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

OBJECTION TO DENIAL OF CONSTRUCTION &= nbsp; &nbs= p; )

AND OPERATING PERMIT APPL= ICATION &= nbsp; &nbs= p; &= nbsp; )

NO. FP 23-03 &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) CAUSE NO. 08-S-J= -4159

GREENVIEW RECYCLING AND D= ISPOSAL FACILITY = ; )

FOUNTAIN COUNTY, INDIANA &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

FINAL ORDER OF DISMISSAL

This ma= tter having come before the Court on NJK Farms, Inc.’s Status Report, file= d on March 18, 2009, which pleading is a part of the Court’s record;

The Court, having read the pleadings filed in this matter, FINDS and CONCLUDES as follows:

1.&n= bsp; The Petitioner, NJK Farms, Inc. (hereinafter referr= ed to as “NJK”) filed its Petition for Administrative Review and Request for Sua Sponte Dismissa= l for Lack of Subject Matter Jurisdiction and Remand to IDEM or Request for Autom= atic Stay (“Protective Filing”) on August 20, 2008 (the “Petition”) objecting to a letter issued by the Indiana Departm= ent of Environmental Management (the IDEM) on August 8, 2008 (the “2008 L= etter”).

2.&n= bsp; The Petition asked for review of the IDEM’s 2= 008 Letter denying the construction/operating permit application (No. FP 23-03)= for the Greenview Recycling and Disposal Facility. The IDEM admits that the 2008 Lett= er was a denial of the Permit Application No. FP 23-03 initially submitted to the = IDEM on November 8, 1991.

3.&n= bsp; The 2008 Letter is the subject of judicial review a= nd a complaint for breach in Marion County Superior Court. On November 20, 2008, the Marion Superior Court, Civil Division, ruled that “the matter before it deals solely with the permit application for the Greenview Landfill filed Novembe= r 8, 1991, and assigned number FP23-03, that the aforesaid application is the on= ly application pertaining to the “Greenview Landfill” and that this Court is vested with exclusive jurisdiction to consider any proceedings incidental to this sole application pertaining to the “Greenview Landfill”.

4.&n= bsp; On March 18, 2009, NJK filed its Status Report informing this Court of the decision in Marion Superior Court and that the Petition was filed “under protest and for the purpose of protecting i= ts rights and, as such, is a “Protective Filing” for administrative review”. Further, NJK requested that the Office of Environmental Adjudication dismiss this matter= upon finding that the 2008 Letter is a “legal nullity”.

[2009 OEA 2= 1, page 23 begins]

5.&n= bsp; The Court concludes that dismissal in this matter is proper because (1) NJK, as the Petitioner, after iterating that the Petitio= n is a “protective filing” only, has requested a dismissal, and (2) = the OEA does not have jurisdiction to consider this Petition for Review pursuan= t to the determination made in Marion County Superior Court, Civil Division. As the Court is without jurisdicti= on to hear this matter, it does not have the authority to make a determination regarding the legal status of the IDEM August 8, 2008 denial.

THE COURT, being duly advised OR= DERS that this matter, pursuant to 315 IAC 1-3-7, is DISMISSED. All further proceedings are VACATED.

You are hereby further notified that pursuant to provision= s 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. &sec= t; 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely on= ly if it is filed with a civil court of competent jurisdiction within thirty (= 30) days after the date this notice is served.

<= b>

IT IS SO ORDERED this 24th day of March, 2009 in Ind= ianapolis, IN.

Hon. Catherine Gibbs

Environmental Law Judge

[2009 OEA 21: end of decision]

2009 OEA 21 in .doc format

2009 OEA 21 in .pdf format