Dairy Permit Upheld Against Neighbor's Challenge

On February 27, 2017, the Indiana Office of Environmental Adjudication (OEA) upheld the Indiana Department of Environmental Management's (IDEM) approval of a dairy's application to build and operate a new confined feeding operation (CFO) in Rush County, Indiana. Todd and Brianna defended the dairy against a challenge to the permit approval from a nearby neighbor. 

IDEM issued its permit approval in November 2015. A local camp represented by the Hoosier Environmental Council appealed the IDEM approval to the OEA. The camp claimed the dairy violated state disclosure statement requirements and argued IDEM did not follow federal permitting requirements. After a two-day trial, the OEA judge rejected both arguments and held in favor of the dairy. A copy of the judge's decision is available here.

As part of its CFO application, the dairy had disclosed the name of the mother and father who were members of the owner LLC. It did not disclose the son, who plans on being involved in the dairy in the future but is not an owner or officer at this time. The dairy also provided a disclosure statement identifying the prior incidents where IDEM had inspected the farm during the previous five years. None of those inspections revealed an incident with a substantial endangerment to human health or the environment. Based on that information, IDEM approved the CFO application.

The camp argued the dairy should have included the son on the disclosure statement because he planned to be involved at the facility in the future. The camp also claimed the disclosure should have included every inspection or violation that ever occurred at the existing facility. The camp contended historical incidents involving the EPA and/or IDEM at the existing facility had presented substantial endangerment to human health and the environment. The camp criticized the dairy for failing to include each and every environmental incident for the past 15 years. 

The OEA judge rejected those arguments. It held the disclosure statute controlled over any conflicting wording in IDEM forms. An applicant is required to comply with the statute, which means disclosing the previous five years of material environmental violations. Likewise, the statute only requires disclosure of the current officers or directors of an LLC -- not potential future owners. The OEA judge ruled the camp failed to show the dairy had violated the disclosure requirements.

The camp also argued IDEM failed to comply with federal requirements regarding a site-specific nutrient plan and record-keeping requirements. The judge determined that (1) the approval did not need to include all the details urged by the camp, since the dairy did not need or obtain an NPDES permit; and (2) the IDEM approval had met federal requirements by cross-referencing the relevant regulations.

In sum, the OEA judge decided the camp's objections to the permit approval should be rejected and the dairy's permit approval was upheld. If you have further questions about this case or other administrative appeals, contact Todd or Brianna