TOPICS:

PRESIDING JUDGE:

Catherin Gibbs

PARTY REPRESENTATIVES:

IDEM: = ; Justin Barrett, Esq.

Petitioners: &nbs= p; Walter and Janene Crawford, pro se

Respondent: = ; Guinn Doyle, Esq.; Barnes & Thornburg

ORDER ISSUED:

August 6, 2010

INDEX CATEGORY:

Air

FURTHER CASE ACTIVITY:

[none]

[2010 OEA 8= 6, page 87 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<= /st1:PlaceName> &= nbsp; )

IN THE MATTER OF: = &nb= sp; = &nb= sp; )

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

OBJECTION TO THE ISSUANCE OF = &nb= sp; )

SOURCE SPECIFIC OPERATING AGREEMENT= ) &= nbsp;

NO. 181-29071-05341 &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

ILLINOIS MINING CORPORATION &n= bsp; = ; )

MONON, WHITE COUNTY, INDIANA = )

_________________________________________ ) &= nbsp; CAUSE NO. 10-A-J-4366

Walter & Janene Crawford, = &nb= sp; = &nb= sp; )

= ; Petitioners, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Illinois Mining Corporation, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

= ; Permittee/Respondent, &= nbsp; &nbs= p; &= nbsp; )

Indiana Department of Environmental Management, )

= ; Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

This matter having come before the Cour= t on the hearing on the petition for administrative review filed by Walter and Janene Crawford (the Petitioner), which pleadings are parts of the Court’s record; and the Court, being duly advised and having read the record, exhibits and evidence and heard the testimony, now enters the follo= wing findings of fact, conclusions of law and final order:

Findings of Fact

1. On= April 1, 2010, the Indiana Department of Environmental Management (the IDEM) issu= ed Source Specific Operating Agreement No. 181-29071-05341 (the Permit) to Illinois Mining Corporation (the Permittee). The Permit authorizes the Permitte= e to operate a portable stone crushing operation at a location 1/3 mile east of = 1189 E. State Rd., Monon, Indiana (the Facility).

2. On= April 7, 2010, the White County Plan Commission filed a petition for review of the Permit. At the request of the= While County Plan Commission, the petition for review was dismissed on June 21, 2= 010.

3. On= April 17, 2010, Carolyn S. Sollars and Holly Franscoviak filed a petition for rev= iew of the Permit. Carolyn = S. Sollars and Holly Franscoviak were defaulted and dismissed from this cause = on July 20, 2010 for failure to appear at the prehearing conference held on Ju= ne 29, 2010.

[2010 OEA 8= 6, page 88 begins]

4. On= April 16, 2010, Walter and Janene Crawford filed a petition for review of the Per= mit.

5. Ja= nene Crawford appeared at the prehearing conference on June 29, 2010. At that time, she consented to hav= ing this matter heard on July 30, 2010.

6. The final hearing in this matter was held on July 30, 2010. Janene Crawford appeared and prese= nted evidence; the IDEM appeared and presented evidence; the Permittee appeared by counsel= .

7. The Crawfords live at 8186 N. = Lowes Road in Monon Indiana. Their home is located less than &f= rac12; mile from the Facility. The Crawfords have a daughter, Kinzy, who has moderate persistent asthma and allergic rhinitis, with positive skin tests to multiple aeroallergens. Ms. Crawford has asthma.

8. Ms. Crawford is concerned about the impact of fugitive dust from the Facility on her and her daughter’s health.

9. Sh= e was unable to identify any legal deficiency in the Permit.

10. Ms. Crawford seeks a requirement that the Permittee plant a tree barrier between her property and the Facility.

Conclusions of Law

1. &n= bsp; The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner= of the Indiana Department of Environmental Management (“IDEM”) and= the parties to this controversy pursuant to I.C. § 4-21.5-7, et seq.

2. &n= bsp; Findings of Fact that may be construed as Conclusio= ns of Law and Conclusions of Law that may be construed as Findings of Fact are= so deemed.

3. This Court 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), Indiana-Kentucky Electric v. Commissioner, Indiana Department of Environmental Management,= 820 N.E.2d 771 (Ind. Ct. App. 2005). Findings of fact must be based exclusively on the evidence presented to the ELJ, IC § 4-21.5-3-27(d). Deference to = the agency’s initial determination is not allowed. Id.<= span style=3D'mso-spacerun:yes'> “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.<= span style=3D'mso-spacerun:yes'> Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247, 253 (= Ind. Ct. App. 1981).

4.      326 IAC 2-9-8 sets= out the regulations applicable to crushed stone processing plants. These regulations are incorporated= into the Permit at Section D.3.

[2010 OEA 8= 6, page 89 begins]

5.      Specifically, 326 = IAC 2-9-8(b)(4)(G) states: “Fugitive parti= culate emissions at a crushed stone plant shall not escape beyond the property lin= e or boundaries of the property, right-of-way, or easement on which the source i= s located, pursuant to 326 IAC 6-4.”

6.      Ms. Crawford was u= nable to identify any deficiency in the Permit.&= nbsp; She was concerned that fugitive dust crossing the property boundary would have an impact on her and her daughter’s health.

7.      The OEA has held on previous occasions that a permit will not be overturned on speculation that= the regulated entity will not operate in accordance with the law. In the Matter of: 327 Article 3 Construction Permit Application Plans and Specifications for Sidney Wastewa= ter Treatment Plant and Sanitary Sewer System Permit Approval No. 16684, 20= 04 In. Env. Lexis 22 (Ind. Off. Env. Adjud. November 5, 2004); In Re: Objection to the Issuance of Confined Feeding Operation Approval, Swine Pro 1, LLC, 2007 OEA 115 (“SwinePro”); In Re: Objection to Issuance of Approval No. AW5499/Farm ID #6370, NPDES CAFO ID No. 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 Amend= ment to Approval No. AW #5076/Farm ID#6165, Confined Feeding Operation, DeGroot Dairy, 2006 OEA 1 (“DeGroot”); In Re: Objection to Issuance of Approval No. AW5404, Mr. Stephen Gettlefinger, Washington, IN, 1998 WL 918589 (Ind. Off. Env. Adjud.) (“Gett= lefinger”).

8.      Unless a petitione= r can prove that the Permittee cannot operate in accordance with the law because of flaws in the facility plans, allegations that a Permittee mig= ht violate the terms of the permit are not sufficient grounds to overturn a permit.

9.      Ms. Crawford has legitimate concerns. However,= it is a violation of the Permit for any fugitive dust to cross the property boundary. She has not present= ed sufficient evidence to show that the Permittee is incapable of complying wi= th the terms of the Permit.

10. Further, neither I= DEM nor the Office of Environmental Adjudication (“OEA”) may requir= e an applicant to include information or to perform actions in excess of that required by law. See In the Matter of: Objection to the Issuance of Appro= val No. AW-5499 Concentrated Animal Feeding Operation, Talara Lykins, Jackson County, Indiana, Cause No. 05-W-J-3602, 2007 OEA 114, aff’d., Marion County Superi= or Court Civil Division, Room F-12, Cause No. 49F12-0708-MI-32019 (April 4, 2008). Ms. Crawford requested= that the Permittee plant a tree barrier between her property and the Facility. She did not provide any authority = which would allow the OEA to grant this request and the presiding ELJ knows of no such authority.

11. Ms. Crawford has n= ot presented sufficient evidence that the Permit is legally deficient. Therefore, judgment shall be grant= ed in favor of the Permittee, Illinois Mining Corporation.

<= /span>

[2010 OEA 8= 6, page 90 begins]

=

Final Order

      = ;      IT IS ORDERED, ADJUDGED AND DECREED that judgment is entered in favor of the Permittee, Illinois Mining Corporation and the Petition for Review filed by Petitioners is hereby DISMISSED.

      = ;

      = ;      You are hereby further notified that pu= rsuant to provisions 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 O= rder subject to Judicial Review consistent with applicable provisions of I.C. &s= ect; 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.

=

        &= nbsp;   IT IS SO ORDERED this 6thday of August, 2010 in Indianapolis, IN.

Hon. Catherine Gibbs

Environmental Law Judge

[2010 OEA 86: end of decision]

2010 OEA 86 in .doc format=

2010 OEA 86 in .pdf format

&n= bsp;