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

Objection to the Issuance of NPDES Permit No. ING806568 =

John A. and Becky S. Stuber

Marion, Grant County, India= na

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 &= nbsp;

&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: &= nbsp; &nbs= p; &= nbsp; Sierra Alberts, Esq.

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 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; )

NPDES PERMIT NO. ING= 806568 &= nbsp; &nbs= p; ) &= nbsp;

JOHN A. AND BECKY S.= STUBER &= nbsp; &nbs= p; )

MARION, GRANT COUNTY, INDIANA &= nbsp; )

____________________= ____________________ ) 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

&= nbsp;

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:

= 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. The design specifications[3] submitted as part of the General Permit Notice of Intent specify that the concrete mix shall be Type I, IA, II or IIA Portland cement. Therefore, the Court GRANTS the motion to take official notice of the descriptions of Type II and Type V Portland cement as set out= by the PCA[4] on its web site [5], and more specifically that (1) Type II Portland cement, is “used for structures in water or soil containing moderate amounts of sulfate” a= nd (2) Type V Portland cement “resists chemical attack by soil and water high in sulfates”. The = Court finds that these are relevant to the issues raised in this matter and are f= acts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” However, the Court DENIES the motion to take official notice that the PCA “d= oes not indicate that Type I Portl= and cement has any resistance either to moderate or high sulfate concentrations” as this is not a fact that is “capable of accur= ate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

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 Indiana. Further, any argument regarding the validity of his opinions regarding the sulfate content of hog manure goes to the weight of his testimony rather than its admissibility. Dr. Veenhuizen adequately identifi= ed the source[6] of the information on which he based his testimony. The Petitioners’ request to = strike the entirety of his testimony based on their objections to his testimony on= one particular fact is without merit. The Motion to Strike Testimony of Michael A. Veenhuizen is DENIED.

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 Indiana<= /st1:place>.

<= 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 = Indiana. The Court finds that Dr. Veenhuizen’s testimony was generally more credible due to his greater familiarity with the Facility and with Indiana’s regulations.

[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], 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 Purdue University [11]. The acreage needed for land applic= ation is based on the amount of nitrogen needed as fertilizer. Ms. Martin presented testimony that there is a potential error of 30% in the guidance based on potential nitrog= en loss from the manure prior to land application. However, Dr. Veenhuizen found no e= rror after calculating the nutrient value using both the IDEM’s guidance a= nd Purdue University’s publication. He concluded tha= t the actual number of acres needed for land application to ensure that the manure was applied at the proper agronomic rate was less than the 508.2 acres that= the IDEM had calculated.

17.&= nbsp; The manure storage units allow for 331 days of storage. This represents the net storage capacity; the net tank dimensions were calculated by subtracting the volume taken up by support columns, dividing walls, and ventilation openings.

18.&= nbsp; The Permittee proposes to land apply the manure by injection. Manure is injected into the soil t= hus minimizing nutrient loss to air and runoff; and by reducing the potential f= or runoff, thereby reducing the potential for surface water contamination. The Permit contains reduced setback requirements because of the proposed method= of land application. Dr. Veenhui= zen testified that if the Permittee chose to surface apply the manure, approximately 75 acres could not be used due to the greater setbacks requir= ed for surface application around surface water features.

19.&= nbsp; The Petitioners object to the lack of information regarding crop yield in each = of the land application areas. T= his data is useful in determining the proper agronomic rate. The NOI Materials provided informa= tion on soil types in each of the land application areas.

20.&= nbsp; The Petitioners object to the absence of a carcass management plan in the NOI Materials. Evidence regarding= this was ruled to be irrelevant as the Board of Animal Health regulates this activity. The Petitioners mad= e an offer of proof.

21.&= nbsp; Petitioners, Lee Smallwood and Philip Mitchell, testified that they were aware that land application of manure has taken place on the farm fields near their residen= ces for over twenty (20) years.

22.&= nbsp; Mr. Smallwood testified that he has had his water well tested for potential contamination and that no contamination was found.

[2009 OEA 9= 6, page 103 begins]

23.&= nbsp; Mr. Mitchell testified that he has had his water well tested, and could not rec= all whether any contamination was identified, but he stated that if contaminati= on had been found, he would probably have recalled that fact.

24.&= nbsp; The Permittee testified that he has approximately twenty-four (24) years of experience raising hogs and ten (10) years of experience in land application using injection/incorporation. He stated that he has personally land applied manure on the farm fields near t= he residences of Mr. Smallwood and Mr. Mitchell with no adverse affects. His own residence is located within fifty (50) feet of one of the land application areas.

CONCLUSIONS OF LAW<= /b>

1.&n= bsp;     The Indiana Department of Environmental Management (“IDEM”) is authorized to implement and enforce specified Indiana environm= ental 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.<= /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.

3.&n= bsp;     This office must apply a de novo standard of review to this proceeding when determining the facts at issue. Indiana<= /i> Dept. of Natural Resources v. United 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:

      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 Indianapolis, 425 N.E.2d 247 (Ind. Ct. App. 1981).

4.&n= bsp;     OEA is required to base its factual findings on substantial evidence. Huffman v. Of= fice of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004); Jennings Water, Inc. v. O= ffice of Envtl. Adjudication= , 2009 Ind. App. LEXIS 965, July 20, 2009 (Ind. Ct. App.<= /st1:address> 2009); see also I.C. &se= ct; 4-32.5-3-27(d). “Standard of proof generally= has been described as a continuum with levels ranging from a "preponderanc= e of the evidence test" to a "beyond a reasonable doubt" test. The "clear and convincing evidence" test is the intermediate standard, although many varying descriptions may be associated with the definition of this intermediate test.” Matter of Moore, 453 N.E.2d 971, 972, n. 2. (= Ind. 1983). The "substantial evidence" standard requires a lower burden of proof than the preponderance test, yet = more than the scintilla of the evidence test. Burke v. City of Anderson, 612 N.E.2d 559, 565, n.1 (Ind. Ct. App. 1993). GasAmerica #47, 2004 OEA at 129. See also Blue River Valley, 2005 OEA at 11, 12. Objection to the Denial of Excess Liability Trust Fund Claim Marathon Point Service, = ELF #

=

[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.

5.&n= bsp;     The OEA will not overturn an IDEM approval upon speculation that the regulated entity will not operate in accordance with t= he law. In the Matter of: 327 Article 3 Construction Permit Application Plans and Specifications for Sidn= ey Wastewater Treatment Plant and Sanitary Sewer System Permit Approval No. 16= 684, 2004 In. Env. Lexis 22 (Ind.<= /st1:State> Off. Env. Adjud., November 5, 2004); see also Jennings Water, Inc. v. O= ffice of Envtl. Adjudication= , 2009 Ind. App. LEXIS 965, 972, July 20, 2009 (Ind. Ct. App. 2009). To the= extent that the Petitioners allege that the Permit was improperly issued because of the possibility that the Permittee will violate the Permit, these allegatio= ns are not sufficient to support a conclusion that the Permit is invalid.

6.&n= bsp;     The Appellate Court found in Jennings Water, Inc. v. O= ffice of Envtl. Adjudication= , 2009 Ind. App. LEXIS 965, 972, July 20, 2009 (Ind. Ct. App. 2009)&= nbsp;that the OEA committed no error in its determination “that while Jennings Water had shown possible improvements to Lykins' proposed CFO, (Appellan= t's App. at 78), it had not shown by substantial evidence that IDEM's issua= nce of the permit did not comply with all the regulatory and statutory requirements.” It is not sufficient to argue that the Permittee should have to use better methods or materials; the Petitioners must show by substantial evidence that the Permit was not issued in compliance with the regulations.

7.&n= bsp;     In addition, the OEA presumes that the rules promulgated by the Water Pollution Control Board are protective of human he= alth and the environment. The appe= llate court in Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 7= 88 N.E.2d 495, 500 (Ind.Ct.App. 2003) said “In addressing Bryant Health Care's contentio= n, we are mindful that a State agency has the undoubted = right to adopt rules and regulations designed to enable it to perform its duties = and to effectuate the purposes of the law under which it operates, when such authority is delegated to it by legislative enactment.” See Dep't.= of Ins. v. Golden Rule Ins., 639 N.E.2d 339, 341 (Ind. Ct. App. 1994) (referring to administrative boards).

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 Indiana’s statutes, regulations and guidance than Ms. Martin.

[2009 OEA 9= 6, page 105 begins]

Perimeter Drain

10.&= nbsp; 327 IAC 16-8-1(a)(5) provides that manure management systems may not be placed = in soil that is expected to be in the seasonal high-water table unless the wat= er table is lowered to below the bottom of the waste management system. Various regulations provide the mi= nimum requirements for perimeter drains. These include 327 IAC 16-8-3 (requires an access point for sampling)= and 327 IAC 16-7-10 (must show detailed views and cross sections to define all dimensions and construction materials).&nb= sp; The perimeter drain, as proposed by the NOI Materials, complies with= the regulatory requirements.

11.&= nbsp; The Petitioners have the burden of proof on any of their allegations. The Court finds that Dr. Veenhuize= n had more credibility on this issue due to his familiarity with Indiana’s requirements for perim= eter drains and with the site conditions at the Facility. On this issue, the Petitioners have failed to produce substantial evidence that the Permittee has not provided sufficient detail on the design of the perimeter drain to meet the IDEM standards.     &n= bsp;

Manure Storage Tanks

12.&= nbsp; 327 IAC 15-15-4 requires that all manure management systems must be constructed= to minimize leakage, seepage and prevent spills. 327 IAC 16-8-6 provides that all n= ew manure storage structures for liquid manure must meet certain basic structu= ral requirements.

13.&= nbsp; The Petitioners argue that the Permittee should be required to use better mater= ials than the ones the Permittee proposes. However, the Petitioners have failed to present substantial evidence that the proposed design specifications do not comply with the regulations = or are incapable of protecting human health and the environment.

14.&= nbsp; The Permittee has presented substantial evidence that the manure management systems,   installed in compliance with industry standards using the concrete specifications propos= ed in the NOI Materials which are maintained and monitored as required by the Permit and the regulations are adequate to protect ground or surface water.

15.&= nbsp; The Petitioners’ allegations, that the design and construction specificat= ions for the concrete structures are insufficient to assure adequate protection = of ground or surface water, are unsupported by the evidence. The evidence supports a conclusion= that the concrete structures have been designed in accordance with industry and = IDEM standards and regulations.

[2009 OEA 9= 6, page 106 begins]

Manure Management Plan

16.&= nbsp; The Petitioners argue that the manure management plan (MMP) as set out in the Permit is inadequate. However= , the Petitioners have failed to prove that the MMP does not comply with the applicable regulations. Any allegations that the Permittee will violate the regulations are speculative= and insufficient to prove that the MMP is inadequate. Further, while the Petitioners and= Ms. Martin present evidence as to what they believe are better methods/practice= s, they have not challenged the rules, but are objecting to this specific Permit. The Petitioners faile= d to prove how this specific MMP does not comply with the applicable regulations= .

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]. 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] 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.


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. 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.

Carcass Manage= ment

= 21. Pursu= ant to 327 IAC 15-15-4(g)(7), the Facility may not dispose of mortalities in a liqu= id manure or process wastewater system. Further, 327 IAC 15-15-10(h) requires that dead animal compost operations must have run-on and run-off controls. This rule allows for the land application of dead animal compost and provides that the disposal of dead a= nimals must comply with the regulations promulgated by the Board of Animal Health. The rule does not req= uire that this information be submitted as part of the application. Failure to comply with this requir= ement would be a violation and would potentially subject the facility to an enforcement action. The absen= ce of a carcass management plan is not relevant to the issue of whether the permit should have issued.

=

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
Environmental Law Judg= e

[2009 OEA 96: end of decision]

=

2009 OEA 96 in .doc format

2009 OEA 96 in .pdf format