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<=
span
style=3D'mso-tab-count:1'> =
Objection
to the Approval of Solid Waste Facility Major Modification and Renewal Perm=
it
for Clifty Creek Ash and FGD By-product Landfill, Restricted Waste Site Typ=
e 1,
FP 39-04 Indiana-Kentucky Electric Corporation
2010 OEA 141, (08-S-J-4106)
[2010 OEA 1= 41, page 141 begins]
OFFICIAL S= HORT CITATION NAME: When referring to 2010 OEA 141 cite this as
&nbs=
p; Indiana-Kentucky
Electric Corporation, 2010 OEA 141.
TOPICS=
:
dismissal
landfill
solid waste
ash
deference
collateral estoppel&n= bsp;
de novo
PRESIDING = JUDGE:
Catherine Gibbs
PARTY
REPRESENTATIVES:
IDEM:  = ; Denise Walker, Esq.
Petitioners: &nbs= p; Jerome Polk, Esq.; Polk & Associates
Permittee: = Guinn Doyle, Esq., Anthony Sullivan, Esq., David Heger, Esq.;
&nbs= p; &= nbsp; Barnes & Thornburg, LLP
ORDER ISSU=
ED:
September 22, 2010
INDEX CATE= RGORY:
Land
FURTHER CA=
SE
ACTIVITY:
[none]
&nb= sp; = &nb= sp; = &nb= sp; =
[2010 OEA 1= 41, page 142 begins]
STATE OF =
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MA=
TTER OF: &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; =
) OBJECTION=
TO
APPROVAL OF SOLID &n=
bsp; )=
p>
WASTE FAC=
ILITY
MAJOR MODIFICATION &=
nbsp; ) &=
nbsp; AND RENEW=
AL
PERMIT FOR CLIFTY &n=
bsp;  =
; ) CREEK ASH=
AND FGD
BY-PRODUCT &nb=
sp; ) LANDFILL,
RESTRICTED WASTE SITE &nbs=
p; =
) TYPE I, F=
P #39-04 &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) _________=
________________________________ )&n=
bsp; CAUSE
NO. 08-S-J-4106 Save the =
Valley,
Inc; Citizens Action Coalition of &nbs=
p; ) Indiana, =
Inc.;
Hoosier Environmental Council, Inc., &=
nbsp; ) Petitioners=
, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) Indiana-K=
entucky
Electric Corporation, &nbs=
p; &=
nbsp; ) Permittee/R=
espondent, &=
nbsp; &nbs=
p; &=
nbsp; ) Indiana
Department of Environmental Management,&nbs=
p; ) Respondent<=
span
style=3D'mso-tab-count:5'> &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER &=
nbsp; This
matter came before the Office of Environmental Adjudication (“OEAR=
21;)
on Indiana-Kentucky Electric Corporation’s Motion for Summary Judgment
filed on May 15, 2009 and Motion to Dismiss the Petition for Review filed on
November 19, 2009. The presid=
ing
Environmental Law Judge (“ELJ”) has reviewed the IKEC Motions, =
the Responses
of Petitioners, Save the Valley, Inc., Hoosier Environmental Council, Inc.,=
and
Citizens Action Coalition of Indiana, Inc. (“Citizens Groups”),=
and
IKEC’s Replies. Being d=
uly
advised, the ELJ now makes the following findings of fact and conclusions of
law and enters the following Order dismissing the Petition for Review. Statement of the Case Cause No.
02-S-J-2989 1. &n=
bsp;
On December 11, 2002, Respondent Commissioner =
of
the Indiana Department of Environmental Management (“IDEM”) iss=
ued
an order renewing Permit No. FP 39-04 (the “Permit”), which
authorizes IKEC to operate the ash disposal landfill at its Clifty Creek
Station in [2010 OEA 1=
41, page
143 begins] 2. &n=
bsp;
On December 26, 2002, Citizens Action Coalition of
Indiana, Inc. (CAC); Hoosier Environmental Council, Inc. (HEC); Save the
Valley, Inc. (STV) (“Citizens Groups”) filed a Petition for
Administrative Review (“Initial Petition”) of the approval of
renewal of Permit No. FP-39-4 for the Clifty Creek Generating Station in 3. &n=
bsp;
On February 7, 2003, Indiana-Kentucky Electric
Corporation (“IKEC”) filed its first Motion to Dismiss and brie=
f in
support alleging the Initial Petition did not meet the basic statutory or
regulatory requirements of I.C. § 13-15-6-2 and 315 IAC 1-3-2 to invoke
the jurisdiction of the OEA. 4. &n=
bsp;
As directed by the OEA in a Case Management Order
issued on February 12, 2003 and in Amended Case Management Orders issued on
March 14 and 17, 2003, Citizens Groups filed an Amended Petition for
Administrative Review (“Amended Petition”) on March 31, 2003, to
bring their petition into compliance with the specific pleading requirement=
s in
I.C. § 13-15-6-2. 5. &n=
bsp;
On March 3, 2003, IKEC filed a second Motion to Dis=
miss
and brief in support alleging the Initial Petition did not meet statutory
requirements to invoke the jurisdiction of the OEA because an
organization’s allegation of its members’ injury, as opposed to=
its
own, is insufficient to confer standing under controlling decisions of the
Indiana Courts. 6. &n=
bsp;
On June 23, 2003, the OEA issued its Findings of Fa=
ct,
Conclusions of Law, and Order Denying Motions to Dismiss (“OEA
Order”). In that order,=
the
OEA denied IKEC’s February 7, 2003 Motion to Dismiss, concluding that
despite Citizens Groups’ failure to meet the requirements in I.C. &se=
ct;
13-15-6-2 with their Initial Petition, Citizens Groups established subject
matter jurisdiction in their initial pleading and their Amended Petition met
the requirements of I.C. § 13-15-6-2.=
The OEA also denied IKEC’s March 3, 2003 Motion to Dismiss,
concluding that Citizens Groups had alleged facts in their Amended Petition
sufficient to confer associational standing to obtain administrative review=
of
the permit renewal under I.C. § 4-21.5-3, the Administrative Orders and
Procedures Act (“AOPA”). 7. &n=
bsp;
On July 3, 2003, IKEC sought judicial review of the
determination in the OEA Order with respect to its March 3, 2003 Motion to
Dismiss. 8. &n=
bsp;
On October 27, 2003, the Marion Superior Court
concluded that it had subject matter jurisdiction and granted IKEC a
declaratory judgment that the OEA lacked jurisdiction over this particular =
case
because Indiana did not recognize associational standing for purposes of
satisfying the “aggrieved or adversely affected” standard for
administrative review under AOPA. =
span> [2010 OEA 1=
41, page
144 begins] 9. &n=
bsp;
However, on January 11, 2005, the Court of Appeals
reversed the Marion Superior Court, deciding that Indiana recognized
associational standing for purposes of satisfying the “aggrieved or
adversely affected” standard for administrative review under AOPA and
that the OEA had jurisdiction over the particular case, thus affirming the =
OEA
Order of June 23, 2003. Se=
e Save
the Valley, Inc. v. Indiana-Kentucky Elec. Co., 820 N.E.2d 677 ( 10. On
March 31, 2005, the Court of Appeals affirmed this decision on rehearing, <=
i>see
824 N.E.2d 776 ( 11. IKEC
filed a Motion to Dismiss the Petition for Review and a Motion for Summary
Judgment on October 14, 2005 on the grounds that Citizens Groups are without
standing to secure review of IDEM’s December 2002 renewal of IKECR=
17;s
Permit because none of the named members of Citizens Groups have standing to
challenge the Permit renewal in their own right. IKEC also moved for summary judgme=
nt on
Citizens Groups’ claim in their Amended Petition that IDEM abused its
discretion in renewing the Permit without first providing notice and an
opportunity for public comment and hearing. 12. IKEC
filed a Motion to Reconsider OEA’s Order of June 23, 2003 in Light of=
New
Authority and to Dismiss the Petition for Review on November 4, 2005. 13. On
March 24, 2006, the ELJ issued Findings of Fact, Conclusions of Law and Ord=
er
Denying Motion to Reconsider and Motion to Dismiss, finding that Save the Valley was binding on this
case. 14. On
March 23, 2007, the ELJ issued Findings of Fact, Conclusions of Law and Ord=
er
partially denying and partially granting IKEC’s Motion for Summary
Judgment. The ELJ found that =
the
Citizens Groups were aggrieved and adversely affected by the issuance of the
Permit. The ELJ further found=
that
a genuine issue of fact existed as to whether ash waste constituents from t=
he
Landfill could potentially impact ground water or surface water. Summary judgment was granted in fa=
vor of
IKEC on the issue of whether there was sufficient evidence to substantiate =
the
Citizen Groups’ contentions the Permit failed to adequately address
fugitive dust. Further, the C=
ourt
granted summary judgment in IKEC’s favor regarding the Citizen
Groups’ allegations that IDEM had erred in failing to provide a public
hearing before issuance of the Permit. 15. IKEC
filed another Motion for Summary Judgment on November 2, 2007. The Court denied this motion on Ma=
rch
26, 2008 finding that the IDEM had the authority to modify the permit when =
it
was renewed regardless of IKEC’s compliance status. [2010 OEA 1=
41, page
145 begins] 16. IKEC
then filed a Motion for Partial Summary Judgment on Surface Water Issues on=
May
7, 2007. On October 6, 2008, =
the
Court granted the motion for summary judgment finding that the Citizen Grou=
ps
had failed to present sufficient evidence to sustain their allegations that=
the
Landfill was a source of surface water contamination. This included determinations that
NPDES-permitted discharges and minor seepage from the Landfill are lawful a=
nd
non-injurious. 17. IKEC
filed Indiana Kentucky Electric Corporation’s Motion for Partial Summ=
ary
Judgment on All Issues Relating to Water Supplied by the City of Madison Wa=
ter
Department on August 31, 2007. 18. On
November 8, 2007, IKEC filed a Motion for Partial Summary Judgment on Kent
Water Company Issues. On Marc=
h 6,
2009, the Court denied IKEC’s motion on the grounds that the Citizens
Groups had presented sufficient evidence to create an issue of fact as to
whether Kent Water Company well fields may be affected by contamination
migrating from the Landfill. 19. On
September 26, 2006, IKEC filed Indiana-Kentucky Electric Corporation’s
Motion to Reconsider This Court’s Order of March 24, 2006 In Light of=
New
Authority and to Correct Oversights.
On April 22, 2008, IKEC filed Indiana-Kentucky Electric Corporation's
Motion to Reconsider this Court's Order of March 26, 2008. On August 28, 2008, the Court deni=
ed the
Motions for Reconsideration. 20. On
February 19, 2009, the IDEM filed its Motion to Dismiss as Moot or
Consolidate. The Court denied=
the
motion to dismiss, but granted the motion to consolidate this cause with Ca=
use
No. 08-S-J-4106 on June 5, 2009. 21. On
August 24, 2009, the Court granted IKEC’s Motion for Partial Summary
Judgment on All Issues Relating to Water Supplied by the City of Madison Wa=
ter
Department. 22. On
May 6, 2009, IKEC filed a Motion for Summary Judgment on All Remaining Issu=
es
(Which Relate to Possible Future Contamination of Drinking Water Supplied by
Kent Water Company and City of Madison Water Department) in Cause No.
02-S-J-2989. On March 17, 201=
0, the
ELJ granted summary judgment in favor of IKEC and entered Findings of Fact,
Conclusions of Law and Final Order.[1] Cause No.
08-S-J-4106 <=
span
style=3D'mso-list:Ignore'>1.&n=
bsp;
On April 15, 2008, the IDEM renewed the Permit at i=
ssue
in this case. The renewal inc=
luded
approval of major modifications of the Landfill. [2010 OEA 1=
41, page
146 begins] <=
span
style=3D'mso-list:Ignore'>2.&n=
bsp;
On May 8, 2008, the Citizen Groups filed their Peti=
tion
for Review. This cause was as=
signed
Cause Number 08-S-J-4106. <=
span
style=3D'mso-list:Ignore'>3.&n=
bsp;
On May 9, 2008, Indiana-Kentucky Electric Corporati=
on
(“IKEC”) filed its Petition for Leave to Intervene as a Party
pursuant to I.C. § 4-21.5-3-21.
On May 13, 2008, the OEA granted IKEC’s Petition. <=
span
style=3D'mso-list:Ignore'>4.&n=
bsp;
On May 16, 2008, IKEC filed its Motion to Dismiss f=
or
Failure to State a Claim Upon Which Relief Can Be Granted. <=
span
style=3D'mso-list:Ignore'>5.&n=
bsp;
On May 27, 2008, IDEM filed its Motion to Dismiss.<=
span
style=3D'mso-spacerun:yes'> The basis of IDEM’s motion w=
as
that the Petitioners failed to timely file their Petition for Review. On the ELJ’s order, briefing=
of
IKEC’s Motion to Dismiss was suspended pending a decision on IDEMR=
17;s
Motion to Dismiss. On Septemb=
er 5,
2008, the ELJ issued its order denying IDEM’s Motion to Dismiss. <=
span
style=3D'mso-list:Ignore'>6.&n=
bsp;
Briefing of IKEC’s Motion to Dismiss resumed =
and
concluded on December 11, 2008.
Oral argument was heard on January 27, 2009. The ELJ issued an order on March 1=
8,
2009 denying IKEC’s Motion to Dismiss. <=
span
style=3D'mso-list:Ignore'>7.&n=
bsp;
Thereafter, on April 28, 2009, IKEC filed its Motion
for Reconsideration of This Court’s Order of March 18, 2009 Denying
IKEC’s Motion to Dismiss the Petition for Review Filed May 8, 2008, a=
nd
For Initial Consideration of Dispositive Issues Raised by IKEC’s Moti=
on
to Dismiss That This Court’s Order Failed to Address Even Though They
Were Unopposed by Petitioners. This
Motion for Reconsideration was denied on June 5, 2009. As part of this order, the ELJ mod=
ified
its March 18, 2009 Order. The
modification struck the paragraphs on the March 18, 2009 Order holding that
collateral estoppel applied. =
The
reason was that the decision in Sav=
e the
Valley, Inc. v. Indiana-Kentucky Electric Corp., 820 N.E.2d 677 ( <=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
As part of the Final Order issued on March 17, 2010=
in
Cause No. 02-S-J-2989, the ELJ separated Cause No. 08-S-J-4106 from
02-S-J-2989. <=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
On May 15, 2009, IKEC filed its Motion for Summary
Judgment. Briefing was conclu=
ded on
July 23, 2009. <=
span
style=3D'mso-list:Ignore'>10.&=
nbsp; On
November 19, 2009, IKEC filed its Motion to Dismiss. Briefing was concluded on December=
30,
2009. IKEC filed its Citation=
of
Additional Authority on July 14, 2010. FINDINGS OF FACT <=
span
style=3D'mso-list:Ignore'>1.&n=
bsp;
All paragraphs of Statement of the Case are
incorporated as Findings of Fact. [2010 OEA 1=
41, page
147 begins] <=
span
style=3D'mso-list:Ignore'>2.&n=
bsp;
The Petition for Review sets out two issues. These are: (1) whether the modification and/or
renewal of the permit was contrary to law under any terms and conditions in
view of the circumstances extant that the Clifty Creek Station Site at the =
time
of renewal with respect to the contamination of ground and surface water; a=
nd
(2) whether modification and/or renewal of the permit was contrary to law u=
nder
the approved terms and conditions in view of the circumstances extant at the
Clifty Creek Station Site at the time of modification and renewal with resp=
ect
to the contamination of ground and surface water. 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. <=
span
style=3D'mso-list:Ignore'>4.&n=
bsp;
Collateral estoppel bars the subsequent litigation =
of a
fact or issue which was adjudicated in previous litigation if the same fact=
or
issue is presented in a subsequent lawsuit. Fitz
v. Rust-Oleum Corp., 883 N.E.2d 1177, 1182 ( =
5. The
Court has determined in Cause No. 02-S-J-2989 that the Citizen Groups faile=
d to
present sufficient evidence to prove that a genuine issue of fact existed
regarding whether the Permit adequately addressed contamination of surface
and/or ground water. [2010 OEA 1=
41, page
148 begins] =
6. The
order issued in Cause No. 02-S-J-2989 on March 17, 2010 is a final order,
because the OEA is the ultimate authority for the IDEM and it disposes of a=
ll
remaining issues in this proceeding. =
7. The
Citizens Groups’ had more than sufficient opportunity in Cause No.
02-S-J-2989 to litigate the issues raised in their Petition for Review. In the aftermath of the March 17, =
2010
Final Order, they have not presented any additional or new evidence in supp=
ort
of their contentions that surface and/or ground water contamination is not
adequately addressed by the Permit. =
8. Given
the extensive nature of these proceedings both in Cause No. 02-S-J-2989 and
Cause No. 08-S-J-4106, it would not be unfair to apply collateral estoppel =
in
this matter. =
9. The
Petition for Review raises the issue of whether the Permit is contrary to l=
aw
with respect to ground and/or surface water contamination. These issues have been decided in
IKEC’s favor in Cause No. 02-S-J-2989. Collateral estoppel bars the
re-litigation of those issues raised in Cause No. 08-S-J-4106 that were
adjudicated in Cause No. 02-S-J-2989. FINAL ORDER  =
; AND
THE COURT, being duly advised, hereby ORDERS, ADJUDGES AND DECREES that the
Petition for Review is DISMISSED=
b>. <=
/span>You
are hereby further 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
administrative review of decisions of the Commissioner of the Indiana
Department of Environmental Management.&nb=
sp;
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 Pe=
tition
for Judicial Review of this Final Order is timely only if it is filed with a
civil court of competent jurisdiction within thirty (30) days after the date
this notice is served. This o=
rder
disposes of this proceeding. IT IS SO ORDERED th=
is
22nd day of September, 2010 in Hon. Catherine Gibbs=
p>
Environmental Law Judg=
e [2010 OEA 141: end of decision] 2010
OEA 141 in .doc format 2010
OEA 141 in .pdf formatIndianapolis
Objection to the Approval of Solid Waste Facility Major Modificatio=
n and
Renewal Permit for Clifty Creek Ash and FGD By-product Landfill, Restricted
Waste Site Type 1, FP 39-04 Indiana-Kentucky Electric Corporation
2010 OEA 141, (08-S-J-4106)