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

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

<= /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.

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2. &n= bsp; The Permit authorizes the Petitioner to construct a concentrated animal feeding operation at State Road 75 and County Road 600S, Cutler, Carroll County, Indiana (the Site). Jt. Stipulation Exhibit 1 and Stipulation 1.

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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.

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 Indiana environmental laws and rules promulgated relevant to those laws, pursuant to I.C. § 13. The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner of the IDEM and the parties to this controver= sy pursuant to I.C. § 4-21.5-7-3.

<= /span>This office must apply a de novo standard of review to this proceeding wh= en determining the facts at issue. Indiana Dept. of Natural Resources v. Uni= ted Refuse Co., Inc., 615 N.E.2d 100 (Ind.<= /st1:place> 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). Further, OEA is required to base i= ts factual findings on substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d 806, (Ind. 2004) (appeal of OEA review of NPDES permit); see also I.C. § 4-21.5-3-14; I.C. § 4-21.5-3-27(d).

&nb= sp;

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; Fort Wayne Patrolmen's Benevolent Ass'n v. City of Fort Wayne, 903 N.E.2d 493 (Ind. Ct. App. 2009).

[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 (Ind. App., 2003)= . “The meaning and intention o= f the legislature are to be ascertained not only from the phraseology of the stat= ue but also by considering its nature, design, and the consequences which flow from the reasonable alternative interpretations of the statute. Statutes relating to the same gene= ral subject matter are in pari materia<= /i> and should be construed together so as to produce a harmonious statutory scheme.” State v. Hensley, 716 N.E.2d 71, 76 (Ind. Ct. App. 1999).

“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.

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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.

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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 Indianapolis, IN.

Hon. Catherine Gibbs
Environmental Law Judg= e

[2010 OEA 191: end of decision]

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2010 OEA 191 in .doc format

2010 OEA 191 in .pdf format

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