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Objection to the Issuance of Part 70 Operating Permit Renewal No.
T039-24536-00538
VIM Recycling Inc.
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
&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
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
&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; )
PART 70 OPERATING PE= RMIT RENEWAL &= nbsp; ) &= nbsp;
NO. T039-24536-00538= &= nbsp; &nbs= p; &= nbsp; )<= /p>
VIM RECYCLING INC. &=
nbsp; &nbs=
p; &=
nbsp; )
____________________= ____________________ ) 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
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
=
2. Service
of notice was sent by
= 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
=
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.
=
3. This
office must apply a de novo standard of review to this proceeding wh=
en
determining the facts at issue. “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.
Grisell v.
= 4.&n= bsp; I.C. § 4-21.5-3-2, in pertinent part, states: =
(1) =
the person is personally served with the notice; or=
(2) =
a notice for the person is deposited in the
. . .
(e) If a notice is served through th=
e
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
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=
span>
(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
FINAL ORDER
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]
2009 OEA 86 in .doc format
2009
OEA 86 in .pdf format
Objection to the Issuance of Part 70 Operating Permit Renewal No.
T039-24536-00538
VIM Recycling Inc.
2009 OEA 86, (09-A-J-4257)