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Objection to the Expiration of Individual NPDES/CAFO Construction
Permit
Animal Waste No. AW-5744, Farm ID NO. 6477
Boerman Carroll Dairy, LLC
2010 OEA 191, (10-W-J-4379)
[2010 OEA 1= 91, page 191 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2010 OEA= 191 cite this case as
<=
/span>Boerman
Carroll Dairy, LLC, 2010 OEA 191.
TOPICS:
hearing
confined feeding
expire
construction
site preparation
statutory construction
in pari materia
storm water
waste management system= p>
manure control equipment<= /p>
sub base
sub grade
exploratory trench
driveway
surveying
field tiles
drainage
culvert
detention pond
silt fences
NPDES
concentrated animal feedi= ng operation
I.C. § 13-18-10-2.2<= /p>
I.C. § 13-11-2-40.8<= span style=3D'mso-spacerun:yes'>
PRESIDING JUDGE:
Catherine Gibbs
PARTY REPRESENTATIVES:
IDEM: = Denise Walker, Esq.
Petitioner: = Gerrit Arendson, pro se
ORDER ISSUED:
November 12, 2010
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2010 OEA 1= 91, page 192 begins]
STATE OF
&n= bsp;  = ; &n= bsp;  = ; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
COUNTY OF
IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
&n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; &n= bsp; )
OBJECTION TO THE EXPIRATI= ON OF INDIVIDUAL )
NPDES/CAFO CONSTRUCTION P= ERMIT &= nbsp; &nbs= p; )
ANIMAL WASTE NO. AW-5744 = / FARM ID NO. 6477 = ) &= nbsp; CAUSE NO. 10-W-J-4379
BOERMAN CARROLL DAIRY, LL= C &= nbsp; &nbs= p; &= nbsp; )
CARROLL COUNTY,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
<= /span>This matter came before the Court on the hearing of the Petition for Review file= d by Boerman Carroll Dairy LLC; the Court having read the record, heard the testimony and other evidence, now enters the following findings of fact, conclusions of law and final order.
Summary of Decision
Boerman Carroll Dairy LLC (the Petition=
er)
appealed the Indiana Department of Environmental Management’s (the ID=
EM)
decision to expire the CAFO permit for failure to begin construction on
time. The main issue in this =
matter
is whether the work completed by the Petitioner before April 20, 2009 was
“construction” as defined by I.C. § 13-11-2-40.8. The IDEM maintains that the work w=
as
site preparation as the Petitioner had not started construction of approved
manure control equipment. The
Petitioner maintains that this work qualifies as construction. The ELJ finds in favor of the IDEM=
in
this matter.
FINDINGS OF FACT
1. &n= bsp; On March 23, 2007, the Indiana Department of Environmental Management (the IDEM) issued National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Individual Permit #INA006477/AW-7444 (the Permit) to Boerman Carroll Dairy = LLC, the Permittee and the Petitioner in this matter. The Permit became effe= ctive April 10, 2007. Jt. Stipulation Exhibit 1.
2. &n=
bsp;
The Permit authorizes the Petitioner to construct a
concentrated animal feeding operation at State Road 75 and
3. &n= bsp; The Permit requires the Petitioner to begin construction no later than 2 years (April 10, 2009) and be complete no later than 4 years (April 10, 2011) after the effective date of the Permit. Stipulation 2, 3 and 4.
[2010 OEA 1= 91, page 193 begins]
4. &n= bsp; The IDEM received a Construction Notification Form = from the Petitioner on November 2, 2007. Jt. Stipulated Exhibit 2 and Stipulation 8.
5. &n= bsp; Prior to May 25, 2010, the following construction h= ad been completed at the Site: a= silt fence was installed; the entire facility had been surveyed and staked out; = an exploratory trench was completed around the Site; the primary drainage was installed including tiles and earthen swales; concrete header walls for drainage culverts were constructed and 2 and ½ miles of drainage by-= pass was installed to connect storm water to the designated county drain; storm water detention pond was installed; bunkers and confinement barn pads were stripped and compacted in preparation for concrete; the front drive with st= one was installed; excavation of other drives was initiated. Petitioner’s Exhibit A.
6. &n= bsp; The exploratory trench was complete on or around Ju= ly 1, 2008. Petitioner’s Exhibit B.
7. &n= bsp; Construction changes were proposed to the IDEM on J= uly 31, 2008 and approved on December 5, 2008.= Petitioner’s Exhibit C and D.
8. &n= bsp; The IDEM conducted inspections of the Site on July = 7, 2009 and January 22[1]= , 2010. Stipulation 9. = p>
9. &n= bsp; On July 7, 2009, the inspector observed “some preliminary site grading and drainage work”, but reported that none of the buildings were constructed. Jt. Stipulated Exhibit 3.
10. As of January 22, 2010, a drainage swale, culverts, a gravel driveway and other site preparation had been done. Jt. Stipulated Exhibit 8.
11. On May 25, 2010, the IDEM notified the Petitioner that the Permit had expired = due to Petitioner’s failure to begin construction before April 10, 2009.<= span style=3D'mso-spacerun:yes'> Jt. Stipulated Exhibit 6.
12. The Petitioner timely filed its petition for review on June 10, 2010. Jt. Stipulated Exhibit 7.
13. The OEA conducted a hearing on the petition for review on October 27, 2010.[2]
[2010 OEA 1= 91, page 194 begins]
Applicable Law
 =
; The
Indiana Department of Environmental Management (IDEM) is authorized to
implement and enforce specified
<=
/span>This
office must apply a de novo standard of review to this proceeding wh=
en
determining the facts at issue.
Both the= Permit and I.C. § 13-18-10-2.2 require that a permittee begin construction of= a CAFO within two (2) years of the effective date of the permit. Construction is defined by I.C. &s= ect; 13-11-2-40.8 as:
"Construction", for purposes of I.C. § 13-18-10, means the fabrication, erection, or installation of a facility or manure control equipment at the location where the facility or manure control equipment is intended to be used. The term does not include = the following:
(1)&= nbsp; The dismantling of existing equipment and control devices.
(2)&= nbsp; The ordering of equipment and control devices.
(3)&= nbsp; Offsite fabrication.
(4)&= nbsp; Site preparation.
<=
/span>This
case requires that the Court interpret the meaning of “site
preparation.” When cons=
truing
a statute or regulation, the Court must apply certain rules of statutory
construction. The=
first
rule is that when a statute or regulation is clear and unambiguous on its f=
ace,
the court does not need to “apply any rules of construction other tha=
n to
require that words and phrases be taken in their plain, ordinary and usual
sense.” St. Vincent =
Hosp.
& Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-704 (Ind. 2002); Bourbon
Mini-Mart, Inc. v. Commissioner, Indiana Department of Environmental Manage=
ment, 806 N.E.2d 14 (Ind.Ct.App. 20=
04);
I.C. § 1-1-4-1(1). If the
court determines that the wording of the rule or statute is unambiguous, it=
is
not subject to interpretation. The
Court may consult with English language dictionaries to ascertain a
word’s common and ordinary meaning.&=
nbsp;
[2010 OEA 1= 91, page 195 begins]
&nbs=
p; However,
if the Court determines that there is ambiguity, then other rules of statut=
ory
construction shall be applied.
“If a statute is subject to interpretation, our main objectives
are to determine, effect, and implement the intent of the legislature in su=
ch a
manner so as to prevent absurdity and hardship and to favor public
convenience.” State v. Evans, 790 N.E.2d 558, 560 (
“Site preparation” is not defined. “Preparation” is defined by Merriam-Webster as follows:<= /p>
1: the action or process of making something ready for use or service or of getting ready for some occasion, t= est, or duty
2: a state o= f being prepared: readiness
3: a prepara= tory act or measure
4: something=
that is
prepared; specificall=
y: a medicinal substance made ready for use <a
preparation for colds>
<= /span>“Prepare” is defined as “to make ready beforehand for some purpose, use, or activity”. 2010 Merriam-Webster, Incorporated, http://www.merriam-webster.com/dictionary.
Manure control equipment is not defined. However, "waste management system" is defined by 327 IAC 16-2-44 as “any method of managing manure at the confined feeding operation, including:
(= 1) = manure storage structures;
(= 2) = manure transfer systems;
(= 3) = manure treatment systems, such as:
(= A) = &nb= sp; a constructed wetland;
(= B) = &nb= sp; a vegetative management system;
(= C) = &nb= sp; a wastewater treatment system under a valid national pollutant discharge elimination system (NPDES) permit; or
(= D) = &nb= sp; another system approved by the commissioner;
(= 4) = feedlots;
(= 5) = confinement buildings; or
(= 6) = waste liquid handling, storage, and treatment systems.”
 = ; Manure storage structure” is defined by 327 IAC 16-2-24 as “any pad, p= it, pond, lagoon, tank, building, or manure containment area used to store or t= reat manure, including any portions of buildings used specifically for manure storage or treatment.”
[2010 OEA 1= 91, page 196 begins]
CONCL=
USIONS
OF LAW
1.
The OEA has subject matter jurisdiction to h=
ear
the petition for review. Furt=
her,
the Court concludes that the petition was timely filed.
2.
There is no question that the Petitioner has
done a considerable amount of work at the Site. However, the question is whether t=
he work completed by the Petitioner qualifies
as “construction” as defined by I.C. § 3-11-2-40.8.&n=
bsp;
3.
The IDEM maintains that the work was “=
site
preparation” as the Petitioner had not started “construction of=
an
approved manure control equipment.”[3] IDEM argues that any work done to
prepare the site for the construction of the manure control equipment is
“site preparation”.
Further, IDEM argues that “manure control equipment” has=
the
same definition as “waste management system”. IDEM bases this interpretation on
whether the IDEM has the authority to cite the permittee for violations
relating to the completed work. If
the IDEM has no regulatory authority over how the work must be done, then t=
he
IDEM considers the work to be site preparation. The fact that the permit contains
specifications for the work does not necessarily mean that the IDEM has the
authority to take enforcement action for a failure to meet those
specifications. =
4.
Th=
e
statute is clear that not all of the work that might be considered
construction, as that term is normally used, at a CAFO qualifies as
“construction” as defined by I.C. § 3-11-2-40.8 for the
purpose of meeting the construction deadline.
5.
The Petitioner cites to the amount of money
spent on the work done at the Site.
However, the statute does not reference monies expended as a qualifi=
er
for construction. Moreover, t=
he
statute specifically excludes certain activities that might require the
expenditure of large sums of money such as the ordering of equipment or off=
site
fabrication. The Petitioner=
8217;s
argument that the amount of money spent is relevant is not persuasive.
6.
The Petitioner also makes the point that no
effort was made to verify what work had been completed at the Site prior to
expiring the permit. However,=
the
IDEM did inspect the Site once after the construction deadline. Moreover, the rules do not require=
such
verification.
7.
I.C. § 13-11-2-40.8 is unambiguous in t=
hat
it applies to the construction of a facility or manure control equipment. If one reads the statutes and rule=
s in pari materia, it is clear that
“facility or manure control equipment” means the same as
“waste management system”.&nbs=
p;
[2010 OEA 1= 91, page 197 begins]
8.
Further, the definition of “waste
management system” is clear that only structures used for manure stor=
age
or treatment are manure control equipment.=
So, it is clear that the installation or construction of any compone=
nts
of a facility that are not directly related to manure storage or treatment =
is
site preparation and does not count as “construction” of manure
control equipment.
9.
The storm water management system is not par=
t of
the waste management system. =
The
purpose of the storm water system is to keep uncontaminated storm water from
coming into contact with the manure or any part of the waste management
systems. The permit applicant
submits the details of how storm water is diverted from the production area=
to
the IDEM for its approval, but these details are not mandated by the IDEM.<=
span
style=3D'mso-spacerun:yes'> The Permit requires that a Storm W=
ater
Pollution Prevention Plan be drafted and maintained at the Site but does not
require IDEM’s approval. =
10.
The IDEM’s CAFO authority does not ext=
end
to the construction of storm water management systems. While it is true that the IDEM can=
take
enforcement action in the event that the storm water systems fail, the basi=
s of
the enforcement action is not the failure to construct the system to certain
specifications, but the release of contaminants into the environment.
11.
Therefore, the construction of structures us=
ed
for control of uncontaminated storm water, including but not limited to, the
rerouting of field tiles, exploratory trench to locate field tiles, drains,
culverts, or detention ponds, does not qualify as construction under I.C.
§ 13-11-2-40.8 as none of these structures are used for the actual sto=
rage
or treatment of manure or process wastewater.
12.
Further, driveways, silt fences and surveying
clearly are not part of the waste management system. None of these structures are used =
for
the actual storage or treatment of manure or process wastewater and do not
qualify as construction under I.C. § 13-11-2-40.8.
13.
On May 7, 2010, the IDEM sent out a message =
via
electronic mail[4]=
that iterated its interpretation of “construction”. The pertinent portion of this e-ma=
il
relating to construction states, “a facility is not considered to have
started construction unless, they have started construction of an approved
manure control equipment and in the location it was approved to be placed.<=
span
style=3D'mso-spacerun:yes'> The construction is also expected =
to
meet the approved design specifications and any requirements established by=
the
agency and within the approval.
Items that will not be considered starting construction for the purp=
ose
of I.C. § 13-18-10-2.2 are as follows; installation of a concrete pad =
in
the wrong location and not meeting agency design specs, installation of a p=
ost,
flags or markers delineating structure locations or drainage tiles and, site
preparation including driveway construction and installation of
utilities.”
[2010 OEA 1= 91, page 198 begins]
14.
This communication is not decisive of the is=
sues
in this case because (1) it was sent after the Petitioner’s construct=
ion
deadline had passed; (2) there is no indication in the email whether this w=
as
published as a non rule policy document pursuant to I.C. § 13-14-1-11.=
5;
and (3) OEA proceedings are de novo=
so
IDEM’s interpretation is not entitled to any deference. However, this email is useful for
clarifying the IDEM’s interpretation. The IDEM’s interpretation is
consistent with the ELJ’s conclusions relating to clean storm water
systems and other structures described in Conclusions of Law 6 and 7
above.
15.
The only construction that may qualify as
construction of manure control equipment is the preparation of the soil pad=
for
the confinement barns. The pa=
ds
(also referred as the sub base and sub grade) are necessary for the proper
construction of the barns and other structures. The pads are an important part of =
the
construction of the confinement barns, (which are clearly part of the waste
management system pursuant to 327 IAC 16-2-44(5)). The IDEM does not make any argumen=
t that
the confinement barns are not part of the waste management system. However, the IDEM argues that the
construction of the pads is not regulated by the IDEM, unlike the construct=
ion
of the actual structure, including the concrete floor which sits upon the p=
ad.
16.
The specifications for the soil pad are prop=
osed
by the applicant. The IDEM re=
views
and approves these specifications for the purpose of ensuring that the waste
management system, as designed, will perform as required. However, the ELJ can find no speci=
fic
regulations requiring that the pads meet certain specifications. In contrast, there are regulations=
that
specify design requirements for the actual manure storage and treatment
structures, depending on whether the manure is liquid or solid and whether =
the
structure will be concrete or earthen.
17.
The Merriam-Webster definition supports a
conclusion that the soil pads are “site preparation”. The soil pads are installed in ord=
er to
prepare for the pouring of the concrete structure, that is, “to make ready beforehand for some purpose, use, or activity=
8221;. The installation of the soil pads =
serves
no other purpose than to prepare the area for the construction of the manure
management system.
18.
The installation of soil pads in preparation=
for
the pouring of the concrete manure management systems is not construction as
defined by I.C. § 13-11-2-40.8.
19.
The Petitioner has failed to meet its burden=
of
proof in this matter. Boerman
Carroll Dairy LLC failed to begin construction of the manure management sys=
tem
prior to April 10, 2009. NPDE=
S CAFO
Individual Permit #INA006477 has expired. =
&nb=
sp;
[2010 OEA 1= 91, page 199 begins]
FINAL ORDER
<= /span>IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition for Review fil= ed by Boerman Carroll Dairy LLC is hereby DISMISSED and the judgment is entered in favor of the Indiana Department of Environmental Management.
<= /span>You are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Offic= e 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 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 12th day of November, 2010 in
Hon. Catherine Gibbs= p>
Environmental Law Judg= e
[2010 OEA 191: end of decision]
2010 OEA 191 in .doc format
2010
OEA 191 in .pdf format
&nb= sp; = &nb= sp; = &nb= sp; =
[1] The stipulation of facts filed on October 19, 2010 says that the inspection occurred on January 29, 2010; however, the testimony and Jt. Stipulated Exh= ibit 4 support a finding that the inspection took place on January 22, 2010.
[2] Cause
No. 10-W-J-4377, Objections to Expiration of Individual NPDES/CAFO Construc=
tion
Permit, Animal Waste No. AW-5807, Farm ID #6523, Far Hills Dairy LLC,
[3] Jt. Stipulated Exhibit 5.
[4] At l= east two of the Petitioner’s witnesses received this e-mail, Brian Daggy a= nd Michael Veenhuizen.
Objection to the Expiration of Individual NPDES/CAFO Construction
Permit
Animal Waste No. AW-5744, Farm ID NO. 6477
Boerman Carroll Dairy, LLC
2010 OEA 191, (10-W-J-4379)