Topics:

Objection to Issuance of New Source Construction to Part 70 Operati= ng

Permit No. T143-28314-00019 and No. T025-27957-00015=

Liberty Green Renewables Indiana, LLC

Scottsburg, Scott County and Milltown, Crawford County, Indiana

2011 OEA 156, (10-A-J-4399=

[2011 OEA 1= 56, page 156 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2011 OEA 156 cite this case as

&nbs= p; = Liberty Green Renewables Indiana, LLC, 2011 OEA 156.

TOPICS= :

dismissal

moot

biomass-to-electricity

permit termination =

PRESIDING = JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM: = ; Timothy Junk, Esq.

Petitioners: &nbs= p; David C. Van Gilder, Esq.; Van Gilder & Trzynka PC

Permittee: = Kevin M. Toner, Esq., Tina M. Richards, Esq.; Baker & Daniels

ORDER ISSU= ED:

November 9, 2011

INDEX CATE= GORY:

Air

FURTHER CA= SE ACTIVITY:

[none]

[2011 OEA 1= 56, page 157 begins]

STATE OF = INDIANA = &nb= sp; ) &= nbsp; &nbs= p; BEFORE THE INDIANA OFFICE OF

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION &= nbsp; )<= /p>

&nbs= p;

IN THE MA= TTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

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

OBJECTION= TO THE ISSUANCE OF = ; &n= bsp; = ; )

NEW SOURCE CONSTRUCTION TO &= nbsp; &nbs= p; ) &= nbsp;

PART 70 O= PERATING PERMIT = &nb= sp; = )

NO. T143-28314-00019 AND NO. T025-27957-00015&n= bsp; )

LIBERTY GREEN RENEWABLES INDIANA LLC )

SCOTTSBUR= G, SCOTT COUNTY, INDIANA &= nbsp; )<= /p>

MILLTOWN,= CRAWFORD COUNTY, INDIANA &= nbsp; )

_________= _____________________________________ ) CAUSE NO. 10-A-J-4399

Pat Berna= , et al, = ; &n= bsp; = ; &n= bsp; &= nbsp; &nbs= p; )

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

Liberty Green Renewables Indiana LLC, &nb= sp; = &nb= sp; )

Permittee/R= espondent, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Indiana Department of Environmental Management,&nbs= p; &= nbsp; )

Respondent<= span style=3D'mso-tab-count:6'> &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER<= /u>

<= /span>This matter came before the Office of Environmental Adjudication (the Court or t= he OEA) on Liberty Green Renewables Indiana, LLC’s Motion to Dismiss as Moot, which pleading is a part of the Court’s record; and the Court, being duly advised and having read the motion, response, reply, record and evidence, enters the following findings of fact, conclusions of law and ord= er:

Summary of Decision

<= /span>Liberty Green Renewables Indiana, LLC (the Permittee) moved to dismiss the petition for review as this matter= has been made moot by the voluntary withdrawal of the Permit. The OEA concludes that this matter= is moot and should be dismissed.

FINDINGS OF FACT=

&= nbsp;

1. The Permittee builds and develops bioma= ss-to-electricity generating facilities.

[2011 OEA 1= 56, page 158 begins]

2.&n= bsp; The Permittee applied to the Indiana Department of Environmental Management ("IDEM") for two air permits related to = the construction and operation of two separate stationary electric power genera= tion sources in two Indiana counties, Scott and Crawford. The Permittee elected to operate both facilities as synthetic minor sources pursuant to 326 IAC 2-2.

&nb= sp;

3. On July 2, 2010, IDEM issued Permit Number T-143-28314-00019 (the "Scott County Permit"), which appli= es to the power generation facility to be constructed in Scottsburg, Scott Cou= nty, Indiana.

4.&n= bsp; On August 6, 2010, Pat Berna, Malvina and Tom Craig, Susan and Cricket Jamison, Chris and Ruby Wakeman, Woodrow and Linda Fortne= r, Bill Hurley and Concerned Citizens of Scott County (hereafter collectively referred to as Petitioners) filed a Petition for Administrative Review. On October 7, 2010, the Petitioners filed an Amended Petition for Administrative Review. This matter was assigned Cause No. 10-A-J-4399.

&nb= sp;

5. On July 30, 2010, IDEM issued Perm= it Number T-025-27957-00015 (the "Crawford County Permit"), which applies to the power generation facility to be constructed in Milltown, Crawford County, Indiana.

&nb= sp;

6. On September 2, 2010, Gordon Smith, Mar= k and Debbie Woods, Linda and Rodney Jenkins, Patricia and Norris LaHue, Paul and Lisa Walerczak, Concerned Citizens of Crawford County, and North Milltown Landowners Association (hereafter collectively referred to as the Petitione= rs) filed a Petition for Administrative Review. This matter was assigned Cause No. 10-A-J-4409.

&nb= sp;

7. The petitions were consolidated under C= ause No. 10-A-J-4399 on September 28, 2010.

8.&n= bsp; On September 26, 2011, the Permittee requested termination of the Scott<= /st1:PlaceName> County and Crawford= County Permits.

9.&n= bsp; On October 5, 2011, IDEM confirmed that the Scott County and Crawford County Permits were terminated.

10.&= nbsp; The Permittee filed its Motion to Dismiss Proceedings as Moot on October 7, 2011. The Petitioners did not= file a response.

11.&= nbsp; A status conference was scheduled for November 4, 2011. None of the parties appeared for t= he conference.

[2011 OEA 1= 56, page 159 begins]

12.&= nbsp; On November 8, 2011, counsel for the Permittee informed the presiding Environmental Law Judge via electronic mail (a copy of which has been made a part of the Court’s record) that the Petitioners did not oppose the motion to dismiss.

CONCLUSIONS OF LAW

&= nbsp;

<= span style=3D'mso-bidi-font-weight:bold'>1. The Office of Environmental Adjudication (“OEA”) has jurisdiction o= ver the decisions of the Commissioner of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.

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.&n= bsp; “When a dispositive issue in a case has been = resolved in such as way as to render it unnecessary to decide the question involved,= the case will be dismissed.” Travelers Indem. Co. v. P.R. Mallory & Co., 772 NE.2d 479, 484 (Ind. App. 2002). A case is deemed moot when there i= s no effective relief that can be rendered to the parties by the Court. A.D. v. State, 736 N.E.2d 1= 274, 1276 (Ind. App. 2000). However, this Cou= rt “may decide an arguably moot case on its merits if it involves questi= ons of great public interest.” Id. “Cases that fit within this exception typically are those containing issues that are likely to recur.” Id.

4.&n= bsp; As the permits which are the subject of this appeal= are no longer in effect, the OEA cannot render effective relief to the Petitioners. The Petitioners = do not oppose the motion to dismiss and have not raised any issues of great public interest that would prevent this matter from being made moot. This matter should be dismissed as= moot.

FINAL ORDER

<= /span>IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Liberty Green Renewables Ind= iana LLC’s Motion to Dismiss is G= RANTED.

= ; 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. 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 fi= led with a civil court of competent jurisdiction within thirty (30) days after = the date this notice is served.

IT IS SO ORDERED this 9th day of November, 2011 in Indianapolis, IN.

Hon. Catherine Gibbs

Environmental Law Judg= e

[2011 OEA 1= 56: end of decision]

2011 OEA 156 in .doc format

2011 OEA 156 in .pdf format