MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_01CA6464.02ABC840" This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer. ------=_NextPart_01CA6464.02ABC840 Content-Location: file:///C:/CE6AA10B/0630092009OEA70WolfCreek.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii"
Objection to the Approval of NPDES Concentrated Animal Feeding
Operation of
Wolf Creek Calf Company, LLC, Farm ID No. 6353
Wheatfield,
2009 OEA 70, (08-W-J-4078)
[2009 OEA 7= 0, page 70 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 70, cite this case as
&nbs= p; Wolf Creek Calf Company, LLC, 2009 OEA 70.
TOPICS: &= nbsp;
modify &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; retrofitted
dairy calves=
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; manure
distribution
chickens &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; manure
storage capacity
land applica=
tion &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; notice
aquifer &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &=
nbsp; wells
nitrate &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &=
nbsp; pharmaceuticals
e. coli &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; summary
judgment
affidavit
scientific t=
estimony &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Expert
witness
Individual N=
PDES
permit &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Ind.
Evid. R. 401 &=
nbsp; &nbs=
p; &=
nbsp;
327 IAC 15-1=
5-9 &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Ind.
Evid. R. 404
327 IAC 15-1=
5-8 &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &=
nbsp;
Lykins, 2007 OEA 114
DeGroot, 2006 OEA 1
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p;
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM: &= nbsp; &nbs= p; &= nbsp; Nancy A. Holloran, Esq.
Petitioners: &nbs= p; &= nbsp; &nbs= p; Peter M. Racher, Esq., Amy E. Romig, Esq.;
 = ; &n= bsp;  = ; &n= bsp; Plews Shadley Racher & Braun LLP
Respondent/Permittee:&= nbsp; Daniel P. McInerny, Esq., Alex C. Intermill, Esq.;
&nbs= p; &= nbsp; &nbs= p; &= nbsp; Bose McKinney & Evans LLP
ORDER ISSUED:
June 30, 2009
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
&nbs= p; &= nbsp;
[2009 OEA 7= 0, page 71 begins]
STATE
OF
) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF = &nb= sp; = &nb= sp; = )
&n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; )
OBJECTION TO THE APPROVAL= OF NPDES &= nbsp; &nbs= p; )
CONCENTRATED ANIMAL FEEDI= NG OPERATION &nbs= p; &= nbsp; )
OPERATION OF WOLF CREEK C= ALF COMPANY, LLC &= nbsp; &= nbsp; )
FARM ID NO. 6353 &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
WHEATFIELD,
_________________________= ___________________________ ) CAUSE NO. 08-W-J-4078
Spike Development, LLC, R= ichard Hughes, = &nb= sp; = ) &= nbsp; &nbs= p;
Leonard Richardson, and S= cott Helton &= nbsp; &nbs= p; &= nbsp; )
<= /span>Petitioners, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
Wolf Creek Calf Company, = LLC, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
<= /span>Respondent/Permittee, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
Indiana Department of Environmental Management, = &nb= sp; = )
<= /span>Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
FINAL ORDER
This matter comes before = the Office of Environmental Adjudication (“OEA” or “CourtR= 21;) on Cross-Motions for Summary Judgment by Spike Development, LLC, Richard Hughes, Leonard Richardson and Scott Helton, (collectively “Petitioners”) and Respondent/Permittee Wolf Creek Calf Company, LLC (“Wolf Creek”) regarding the Indiana Department of Environmental Management (“IDEM”) approval of the Notice of Int= ent and Application (“NOI”) submitted by Wolf Creek resulting in a general National Pollutant Discharge Elimination System (“NPDES”= ;) permit allowing Wolf Creek to operate and/or construct a cow concentrated animal feeding operation (“CAFO”). The Chief Environmental Law Judge (“ELJ”) having considered the petitions, evidence, and pleading= s of the parties, now finds that judgment may be made upon the record. The ELJ, by substantial evidence, = and being duly advised, now makes the following findings of fact and conclusion= s of law and enters the following Final Order:
FINDINGS OF FACT
<=
span
style=3D'mso-list:Ignore'>1.&n=
bsp;
On December 10, 2007,
[2009 OEA 7= 0, page 72 begins]
<=
span
style=3D'mso-list:Ignore'>2.&n=
bsp;
In the NOI,
<=
span
style=3D'mso-list:Ignore'>3.&n=
bsp;
On February 26, 2008, IDEM issued the document enti=
tled
“NPDES CAFO Information” (“CAFO Approval”) to
<= span style=3D'mso-list:Ignore'>4.&n= bsp; On March 12, 2008, Petitioners filed their Petition= for Administrative Review (“Petition”) of the CAFO Approval with the OEA.
<= span style=3D'mso-list:Ignore'>5.&n= bsp; On May 7, 2008, Petitioners filed their Amended Petition for Administrative Review (“Amended Petition”).
<= span style=3D'mso-list:Ignore'>6.&n= bsp; On June 27, 2008, Petitioners filed their Motion and Brief in Support of Summary Judgment (“Petitioners’ Brief”= ;) containing the affidavit of Paul Troy (“Troy Affidavit”).
=
7. On
June 27, 2008, Wolf Creek filed its Motion for Summary Judgment and Brief in
Support of Motion for Summary Judgment (“Wolf Creek’s
Brief”).
<=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
On July 21, 2008,
<=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
On July 22, 2008, Petitioners filed their Brief in
Opposition to
<= span style=3D'mso-list:Ignore'>10.&= nbsp; On August 4, 2008, Petitioners filed their Reply Brief in Support of Their Mot= ion for Summary Judgment (“Petitioners’ Reply).
<=
span
style=3D'mso-list:Ignore'>11.&=
nbsp; On
August 4, 2008,
[2009 OEA 7= 0, page 73 begins]
<= span style=3D'mso-list:Ignore'>12.&= nbsp; Petitioners raised three legal issues proposed for consideration in their Amended Petit= ion: (1) that the IDEM incorrectly determined that the facility had adequate man= ure distribution and land application capabilities; (2) that the IDEM should ha= ve required new notice pursuant to 327 IAC § 15-15-8(a) that identified t= he true owner/operator of the CAFO; and (3) that the IDEM should have required Wolf Creek to obtain an individual NPDES permit pursuant to 327 IAC § 15-15-9(a).
= 13. Petit= ioners presented evidence that:
= 14. Respo= ndents presented evidence regarding:
<= span style=3D'mso-list:Ignore'>15.&= nbsp; According to the NOI materials, Wolf Creek has a dry manure storage capacity of 230,0= 00 ft3, a total land application area of over 333 acres, and the si= te complies with the set-back criteria of 327 IAC § 15-15-12, et seq.
<=
span
style=3D'mso-list:Ignore'>16.&=
nbsp; According
to the NOI materials, manure production for
[2009 OEA 7= 0, page 74 begins]
<=
span
style=3D'mso-list:Ignore'>17.&=
nbsp; The
land subject to the permit was not undeveloped and had a valid NPDES permit=
at
the time the NOI was submitted to the IDEM. According to the NOI materials,
Schuringa currently had a NPDES General Permit (ING806353) covering the same
land as the current
<= span style=3D'mso-list:Ignore'>18.&= nbsp; The NOI materials provided manure distribution records for October, 2004 through October 2006 for Schuringa and indicated that the facility had successfully distributed 100% of manure produced in each of the previous two (2) years.<= /p>
<= span style=3D'mso-list:Ignore'>19.&= nbsp; IDEM’s Bruggen saw no evidence of any unauthorized construction during a January 2= 4, 2008 site inspection (Bruggen Affid= avit, para. 9) or had any knowledge that Wolf Creek submitted any false information to the IDEM regarding the CAFO approval at issue or any other permit application (Bruggen Affidav= it, para. 10).
CONCLUSIONS OF LAW
1.&n= bsp; The OEA has jurisdiction over the decisions of the = IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.
2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.5-3-27, and 315 IAC 1-2-1(9). Findings of fact th= ey may be construed as conclusions of law and conclusions of law that may be const= rued as findings of fact are so deemed.
3.&n= bsp; In this case, Petitioners and Wolf Creek both moved= for summary judgment as to whether any genuine issues of material fact exist whether the IDEM correctly determined that Wolf Creek had adequate manure storage and distribution capabilities; whether notice was required pursuant= to 327 IAC 15-15-8(a); and whether Wolf Creek should have been required to get= an individual permit pursuant to 327 IAC 15-15-9(a).
4.&n=
bsp;
The OEA may enter judgment for a party if it finds =
that
“the pleadings, depositions, answers to interrogatories, and admissio=
ns
on file, together with the affidavits and testimony, if any, show that a
genuine issue as to any material fact does not exist and that the moving pa=
rty
is entitled to judgment as a matter of law.” I.C. § 4-21.5-3-23; Wade v.
5.&n=
bsp;
The moving party bears the burden of establishing t=
hat
summary judgment is appropriate.
“A genuine issue of material fact exists where facts concernin=
g an
issue that would dispose of the litigation are in dispute of where the
undisputed facts are capable of supporting conflicting inferences on such an
issue.” Laudig v. A fact is “material” i=
f it
helps to prove or disprove an essential element of plaintiff’s cause =
of
action. Weide v. Dowden, 664 N.E.2d 742, 747 (Ind. Ct. App. 1996). All facts and inferences must be
construed in
[2009 OEA 7= 0, page 75 begins]
favor o=
f the
non-movant. Gibson v. An opposing party’s mere
assertions, opinions or conclusions of law will not suffice to create a gen=
uine
issue of material fact as to preclude summary judgment. Sanchez
v. Hamara 534 N.E.2d 756, 758 (Ind. Ct. App. 1989), trans. denied; McMahan v. Snap-On Tool Corp., 478 N.E.2d 116, 1=
22
(Ind. Ct. App. 1985). Factual
disputes that are irrelevant or unnecessary will not be considered. Owen
v. Vaughn, 479 N.E.2d 83, 87 (Ind. Ct. App. 1985). Once each moving party sets out a p=
rima
facie case in support of the summary judgment, the burden shifts to the
non-movant to establish a factual issue.
6.&n=
bsp;
“The fact that both parties requested summary
judgment does not alter our standard of review. Instead, we must separately
consider each motion to determine whether there is a genuine issue of mater=
ial
fact and whether the moving party is entitled to judgment as a matter of
law.”
7.&n= bsp; The ELJ is not permitted to weigh the evidence or j= udge credibility when deciding whether to grant summary judgment. “Summary judgment must be de= nied if the resolution hinges upon state of mind, credibility of the witnesses, = or the weight of the testimony. = Mere improbability of recovery at trial does not justify the entry of summary judgment against” a party. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 706 (Ind. Ct. App. 1999).
8.&n=
bsp;
The OEA’s 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. I.C. § 4-21.5-3-27(d); 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, 781 (Ind. App. 2005). “De novo review” means that “all issues are to be
determined anew, based solely upon the evidence adduced at that hearing and
independent of any previous findings.” Grissell
v. Consl. City of
[2009 OEA 7= 0, page 76 begins]
9.&n= bsp; OEA is required to base its factual findings on substantial evidence. Huffman v. Office of Environmental Adjudication, 811 N.E.2d 806, 809 (Ind. 2004) (appeal of OEA review of NPDES permit); see also I.C. &s= ect; 4-21.5-3-27(d). While the par= ties dispute whether the IDEM correctly determined that: (1) Wolf Creek had adeq= uate manure storage and land application capabilities; (2) Wolf Creek was not required to give new notice pursuant to 327 IAC 15-15-8(a); or (3) Wolf Cre= ek was not required to get an individual NPDES permit, OEA is authorized ̶= 0;to make a determination from the affidavits … pleadings or evidence.” I.C. § 4-21.5-3-23(b). “Standa= rd of proof generally has been described as a continuum with levels ranging from a ‘preponderance of the evidence test’ to a ‘beyond a reasonable doubt’ test.
The test
‘clear and convincing evidence’ test is the intermediate standa=
rd,
although many varying descriptions may be associated with the definition of
this intermediate test.” Matter of
10.&= nbsp; As Wolf Creek correctly argues, the OEA has considered several appeals of Conf= ined Feeding Operations and CAFO approvals, and has established precedent, including:
a.&n=
bsp;
The OEA may not overturn an IDEM approval upon
speculation that the regulated entity will not operate in accordan=
ce
with the law. In Re: Objection to the Issuance of Confined Feeding Operation
Approval, Swine Pro 1, LLC, 2007 OEA 115 (“Swine Pro”); In R=
e:
Objection to Issuance of Approval No. AW5499/Farm ID #6370, NPDES CAFO ID N=
o.
ING806370, Concentrated Animal Feeding Operation, Talara Lykins, 2007 OEA 114, aff’d., Cause No. 49F12-0708-MI-32019 (April 4, 2008)
(“Lykins”); In Re: Objection to Amendment to Appro=
val
No. AW #5076/Farm ID#6165, Confined Feeding Operation, DeGroot Dairy, 2=
006
OEA 1 (“DeGroot”); =
In Re: Objection to Issuance of Approv=
al No.
AW5404, Mr. Stephen Gettlefinger,
b.&n= bsp; OEA may not overturn the IDEM’s approval of a permit upon speculation that the permittee would allow unauthorized run-off, that the permittee would not detect or control failure of a concrete tank w= hich otherwise complied with applicable design or operation requirements and regulations, or that the permittee would fail to comply with land applicati= on rules. Lykins, supra.
c.&n= bsp; The Water Pollution Control Board promulgated appli= cable regulations, and in so doing, determined that the regulations were protecti= ve of human health and the environment. Therefore, OEA only has jurisdictions to determine whether the IDEM acted in accordance with Title 13 and applicable regulations. Swine Pro, supra.
[2009 OEA 7= 0, page 77 begins]
11.&=
nbsp; In
support of its Motion for Summary Judgment,
=
12. In
addition, the affidavits set forth each affiant’s belief that the NOI
complied with specified regulations (327 IAC 15-15). As Petitioners note, “Wolf C=
reek
cited these affidavits for the proposition that the NOI materials submitted=
by
Wolf Creek complied with the rules for CAFOs,” (Motion to Strike Affidavits, p.2), and further list six (6) particular topics for which each affiant
identifies as complying with regulatory requirements. (Bruggen Affidavit, para. 5; Sever=
son
Affidavit, para. 7). Witnesses
generally may not testify as to legal conclusions. Ind.
Evidence Rule 701; Evid. R. 704(b);
Duncan v.
a.&n= bsp; If scientific, technical, or other specializing knowledge will assist the trier of fact to understand the evidence of to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form = of an opinion or otherwise.
b=
. Expert
scientific testimony is admissible only it the court is satisfied that the
scientific principles upon which the expert testimony rests are reliable.=
p>
An expert w=
itness
is one who, by reason of special knowledge or skill, generally may state op=
inions. Burp
v. State, 612 N.E.2d 169, 171, n. 1 (Ind. Ct. App. 1993). “Affidavits that make assert=
ions
and cite to legal authority in an effort to provide essential information to
the trier of fact do not constitute inadmissible legal conclusions.”<=
span
style=3D'mso-spacerun:yes'>
13.&=
nbsp; However,
OEA cannot rely solely on each affiants’ averment that the NOI materi=
als
in controversy comply with 327 IAC 15-15, et
seq., without conducting further de
novo review of the facts which
[2009 OEA 7= 0, page 78 begins]
14.&=
nbsp; Pursuant
to 327 IAC 15-15-8(a), public notice is required whenever “[a]n owner=
or
operator … submits a NOI to construct on land that is undeveloped or =
for
which a valid existing CFO approval or NPDES permit has not been issued.
15.&=
nbsp; Petitioners
have not presented substantial evidence that the NOI lacked all required
information regarding adequate manure storage and distribution
capabilities. Substantial evi=
dence
shows that
= 16. Pursu= ant to 327 IAC 15-15-9(a) the IDEM “may” require a CAFO operator to obtain an individual NPDES per= mit in certain situations, including:
(1)&= nbsp; The applicable requirements contained in this artic= le [327 IAC 15-15] are not adequat= e to ensure compliance with:
= (a)&= nbsp; water quality standards under 327 IAC 2-1 or 2-1.5; or
= (b)&= nbsp; the provisions that implement water quality standar= ds contained in 327 IAC 5
(7)&= nbsp; The owner or operator has commenced construction, as defined at I.C. § 13-11-2-= 40.8, before receiving written confirmation from the department that the construc= tion plan is consistent with the general permit.
(9)&= nbsp; The owner or operator has knowingly or intentionally submitted false information to the department as part of the NOI or the fal= se information is in the required operating records under this rule.
17.&=
nbsp; Petitioners’
allegations that the aquifer underlying the Wolf Creek CAFO will be a risk =
from
any potential discharge of manure through inadequate management practices, =
land
application or unintended manure releases does not establish a genuine issu=
e of
material fact as to the IDEM requiring Wolf Creek to obtain an individual N=
PDES
permit. See Lykins, supra (OEA may not overturn the IDEM’s approv=
al
of a permit upon speculation that the permittee would allow unauthorized
run-off or that the permittee would fail to comply with land application
rules). Petitioners have pres=
ented
no evidence that the owner or operator commenced construction prior to
receiving written confirmation from the IDEM or that Wolf
[2009 OEA 7= 0, page 79 begins]
is no g=
enuine
issue of material fact that the IDEM did not err in not requiring
FINAL ORDER
AND THE COURT, being duly advised, hereby FINDS AND ORDERS that Wolf Creek has provided substantial evide= nce required to meet its burden of showing that NPDES Concentrated Animal Feedi= ng Operation General Permit No. ING806353 for Farm ID #6353, complied with applicable law, as a matter of law, and that no genuine issue of material f= act exists to the contrary on the following issues:
1.&n=
bsp;
2.&n=
bsp;
3.&n=
bsp;
IT IS THEREFOR ORDERED, ADJUDGED AND DECREED that Wolf Creek’s Motion for Summary Judgment is GRANTED, and Petitioners Spike Development, LLC, Richard Hughes, Leonard Richardson and Scott Helton’= ;s Motion for Summary Judgment is DEN= IED as to the following issues:
1.&n=
bsp;
2.&n=
bsp;
3.&n=
bsp;
THE COURT FINDS FURTHER that Petitioners’ Amended Petition for Administrative Review is hereby DENIED.
You are further notified = that pursuant to the provisions of I.C. § 4-21.5-7-5, the Office of Environmental Adjudication serves as the ultimate authority in administrati= ve decisions of the Commissioner of the Indiana Department of Environmental Management. Pursuant to I.C. = § 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.=
IT IS SO ORDERED in
Honorab=
le Mary
L. Davidsen
Chief Environmental Law Judge
[2009 O= EA 70: end of decision]
2009 OEA 70 in .doc format
2009
OEA 70 in .pdf format
Objection to the Approval of NPDES Concentrated Animal Feeding
Operation of
Wolf Creek Calf Company, LLC, Farm ID No. 6353
Wheatfield,
2009 OEA 70, (08-W-J-4078)