CREW Sues EPA For Access To Renewable Fuel Standards Documents


A very interesting dynamic is developing in the agriculture and petroleum industries.

In November 2013, the EPA mandated new renewable fuel standards requiring the addition of 15.2 billion gallons of renewable fuel to the US fuel supply during 2014. This represented a lowering of the benchmark of 16.5 billion gallons in 2013, in turn, down from 18 billion gallons in the original Energy Independence and Security Act of 2007. Energy Security Act 2007

Citizens for Responsibility and Ethics in Washington filed a FOIA request in May seeking disclosure of records that it believes indicates that industry groups had lobbied the Obama Administration and members of Congress to reduce the EPA mandated standard. FOIA Request

The records were not provided — at least not all of them. Citizens for Responsibility and Ethics in Washington requested the DC Circuit to force EPA to disclose the documents it claims demonstrate industry lobbying efforts at the agency to scale back the amount of renewable fuels that must be blended into the U.S. fuel supply. CREW vs. EPA Complaint

The Renewable Fuel Standard program, known as RFS2, has caused conflict between the petroleum and ethanol industries and their respective supporters in Congress. The petroleum industry wants it scrapped, calling it a stealth tax on gasoline and saying the Renewable Identification Number program is ripe for fraud. Under that program, codes known as RINs are used for trading renewable fuel credits that blenders and refiners can use to meet the EPA’s biofuel requirements.

And, since most of the renewable fuel blended into gasoline comes from corn-based ethanol, food and livestock groups also oppose the program, claiming it will ultimately drive up food prices. Lawmakers from both political parties have proposed legislation to either repeal the program or alter it drastically.

Posted in Agriculture, Clean Air, EPA, Federal Cases, Renewable Energy | Leave a comment

Indiana Is Soon to Unveil Its New Energy Strategy

Sue Ellspermann… So says Lieutenant Governor Sue Ellspermann.  In Indiana, the Lieutenant Governor manages six state agencies, among them the Department of Agriculture, the Office of Community and Rural Affairs, and the Office of Small Business and Entrepreneurship.

The 25x’25 Alliance’s Rural Energy Forum and Tour held in Indiana a couple of weeks ago was intended to convince Hoosiers that Indiana is a leader in renewable energy.  Lt. Governor Sue Ellspermann told the conference that the Pence Administration is supportive of all forms of renewable energy.  “As we roll out an energy strategy in November you’re going to get to see a few more things that will really help lift up Indiana into leadership in energy stability,” she says.

The goal of the 25x’25 Alliance is to provide 25 percent of the nation’s energy from renewable sources by 2025.  Currently, approximately10 percent of the nation’s energy comes from renewables.

Indiana’s Lt. Governor Sue Ellspermann says with Indiana’s “all of the above” energy strategy, they can lead by example.  Indiana supports solar and wind energy as well as the biofuels, Ellspermann told the conference.  “We want to see more of those out there as well.  As we roll out a full energy strategy in November – you’ll get to see a few more things that will help lift up Indiana.”

She also stated that the agricultural community will be part of that plan.  “We’re very proud of agriculture and the role it has played, really a leadership role in renewable fuels,” she says.  “We fully expect that to continue.  Indiana supports renewable fuels at the biofuels level, we support the initiatives that agriculture is taking.  We think agriculture is a responsible partner in looking for energy solutions.”

Indiana’s new energy plan will be published in November.

Posted in IDEM, Indiana General Assembly, Renewable Energy | Leave a comment

“Downright Dangerous” Home Results in $280,000 Judgment for Purchaser

ramshackle houseWe have this from the Indiana Court of Appeals related to the Indiana real estate disclosure requirements.  Hays vs. Wise

The Hays sold their home after completing Indiana’s statutory disclosure forms. Purchaser Wise sued the Hays, alleging that the Hays failed to disclose defective conditions in the home. Following a bench trial that occurred on remand from the Court of Appeals — relating to the trial court’s earlier dismissal of the case — the Hays appealed the trial court’s findings of fact, conclusions of law, and judgment, which found in favor of Wise on her complaint. The trial court determined that the Hays made misrepresentations in their responses to several question on the residential real estate sales disclosure form.

Hays had completed the sales disclosure form saying they knew of no structural problems with the home, did not make any substantial changes requiring permits and did not receive any notices from governmental or quasi-governmental entities regarding the property.  But Hays never obtained the proper permits for the home which Hays built with four friends.

The evidence presented at trial was that it would be effectively impossible to repair the defects. An independent contractor visited the Wise’s home at her request for purposes of preparing an estimate of what it would cost to repair the home’s deficiencies. At trial, the contractor stated, “I determined it would be a waste of my time to prepare an estimate because there were so many deficiencies that were just next to impossible to repair.” He explained that, in order to repair the home, it would need to be lifted off its existing foundation to address the existing significant foundational problems, and that the only way to repair the second floor structural systems would be to tear off the second floor entirely and rebuild it. The cost of such re-construction would exceed the value of the home.”  A consulting engineer called the home “downright dangerous”.

The builder estimated that the cost to demolish the home, remove the materials, and rebuild an identical home in accordance with current LaGrange County code would be between $410,000 and $450,000.  The trial court ruled in favor of Wise, ordering Hays to pay $281,062.77 in damages, which included attorney fees.

Real estate agents should take note. The statutory disclosure forms are critical.

Posted in Indiana Cases, Planning and Zoning, Real Estate | Leave a comment

Senators Request Withdrawal of USACE/EPA Interpretation of Waters of the U.S.

ditchThe interpretation of “waters of the United States” proposed by the Army Corps of Engineers and EPA — governing approved conservation practices —would alter farmer-government interaction, Republican members of the U.S. Senate Committee on Agriculture said last week. As to farmers and ranchers, the rule outlines 56 conservation activities (of more than 160) that would be covered under a “normal farming and ranching” Clean Water Act exemption. Previously, more than 160 conservation practices qualified for the normal farming and ranching exemption, the group said.  See yesterday’s post.

These senators said immediate withdrawal of the waters of the U.S. interpretive rule is necessary. Republican members of the Senate Agriculture Committee say Waters of the U.S. interpretive rule would threaten farmer-government interaction. The letter by republican members of the Ag Committee is here.  WOTUS Ag Interpretive Rule Letter.

“We have heard from farmers, ranchers, and other rural constituents about the Interpretive Rule and are deeply concerned it has created great confusion about what agriculture activities are exempt from regulation under the Clean Water Act,” the senators wrote in their letter to EPA Administrator Gina McCarthy, Army Secretary John McHugh, and Agriculture Secretary Tom Vilsack.

The senators said members of the farming and ranching industry had little opportunity to provide input on the rule. The proposal also could “fundamentally change the relationship between the Department of Agriculture and farm families.” Farm groups have also pushed for withdrawal of the rule, citing concerns similar to those of the Republican Senate Ag Committee members.

“This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community,” the senators wrote.

Though the interpretive rule took effect immediately, stakeholders have until Nov. 14 to comment on the broader Waters of the U.S. proposal.

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Waters of the United States: Newly Defined – and Expanded

Ditch 2Joe Koncelik, author of the excellent Ohio Environmental Law Blog, has a piece on the waters of the United States. Is it reasonable to require Federal and State 401 water quality permits to fill this drainage way adjacent to the road?

He recaps Rapanos as well as the Army Corps’ extensive (and unreasonable) new approach – using Justice Scalia’s “significant nexus” test. He then discusses the impact of the rule on the EPA – and its proposed new rule.  Rapanos vs. United States.

Koncelik says “The Agency’s proposed rule is controversial due to its open ended language providing discretion to capture almost anything as a federally protected stream.

Take the picture above, it could be argued this ditch has intermittent flow.  It may have a defined bed and bank.  If you traced its connections long enough, you probably could find another waterway to which it contributes flow.”

You can find his post here.

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Court of Appeals Finds Substantial Compliance with Tax Sale Statute

Hammond219 Kenwood Holdings, LLC, (Kenwood) appealed the judgment of the trial court finding that Properties 2006, LLC, (Properties 2006) substantially complied with the requirements of Indiana Code section 6-1.1-25-4.5(e). Subsection (e) requires that the purchaser of property sold at a tax sale notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date. Finding that the trial court did not err in its determination that Properties 2006 substantially complied with the requirements of this statute, the Court of Appeals affirmed.  Kenwood Holdings vs Properties 2006.

Kenwood was the owner of record of property located at 219 Kenwood Avenue in Hammond (the Property) on April 25, 2013. On that date, the Property was sold in a tax sale to Unexpected Holdings, LLC, as a result of Kenwood’s delinquency in its payment of taxes. Unexpected Holdings, LLC, received a certificate of sale and assigned its rights under this certificate to Properties 2006.

On June 21, 2013, Properties 2006 sent Kenwood notice of its purchase and its intent to petition for a tax deed as required by Indiana Code section 6-1.1-25-4.5. The notice contained the statement: “A petition for a tax deed will be filed on or after August 24, 2013.” Appellee’s Br. p. 1. Kenwood contacted several potential lenders in an attempt to secure a loan to redeem the Property but was eventually unsuccessful. On August 30, 2013, Properties 2006 notified Kenwood that it had petitioned for a tax deed as required by Indiana Code section 6-1.1-25-4.6. 3  

On September 25, 2013, Kenwood filed a Verified Objection to Petition for Tax Deed in the trial court, arguing that the first notice sent by Properties 2006 did not meet the requirements of Indiana Code section 6-1.1-25-4.5(e). The trial court held a bench trial on December 9, 2013, and found that Properties 2006 had substantially complied with the statute.

“It is the date of petitioning that the statute is concerned with, not the date of issuance. Properties 2006’s statement informed Kenwood of the date on which it planned to petition for a tax deed. The statement makes clear that Properties 2006 intended to file this petition on August 24, 2013. Therefore, Properties 2006 fully complied with subsection (e),” Judge John Baker wrote.

The judges also rejected Kenwood’s assertion that the requirements of subdivisions (1) and (2) cannot be satisfied by one statement alone but must be broken into two sentences.

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Filmmaker Josh Fox to Speak at Annual Environmental Forum

GaslandThe Greening the Statehouse conference on Saturday, October 25 is worthy of another mention.

The Hoosier Environmental Council has announced that Josh Fox, director of the Academy Award-nominated film Gasland, will headline the 7th annual “Greening the Statehouse” conference on Saturday, October 25, 2014 from 8:30-11:30 a.m. at the IMAX in the Indiana State Museum.

Gasland is a 2010 documentary written and directed by Fox. Nominated for an Academy Award for Best Documentary in 2011, the film focuses on communities in the United States affected by natural gas drilling and, specifically, a method of horizontal drilling into shale formations known as hydraulic fracturing.

Registration for Greening the Statehouse is $30 general admission and $15 for students. To register, visit the Hoosier Environmental Council website.

Posted in Clean Water | Leave a comment

More on Jackson County’s Updated CAFO Ordinance

From a lengthy article in the Seymour Tribune on September 21, 2014:

Jackson CountyJackson County Plan Commission held a public hearing about a proposed confined animal feeding operation ordinance. The proposed ordinance, which has been in the works for nearly a year, would address the potential locations and placement of large scale livestock operations and other issues concerning their operations including odor and appearance.

Earlier this year, a committee of livestock producers and others with interests in agriculture and those with concerns about large livestock operations also have been meeting in recent months to provide input into the ordinance. The county Plan Commission also has had several meetings focused on the subject.

David and Becky Vehslage of rural Brownstown, were two of about 13 who offered their thoughts to the commission. Both said biofilters — designed to lessen odors — should be a must in the ordinance and setbacks should be farther back than what’s currently stated — specifically to protect drinking water and neighboring residences.

David Vehslage, like several others, said he is not opposed to farm operations in general and appreciated the efforts of county officials and others to strengthen the existing ordinance governing livestock operations that was enacted nearly half a century ago. Gary McDonald of Vernon Township, said he thought the ordinance should require farm operators of CAFOs to live on the property that they maintain. This is not a requirement at this time.

Grant VonDielingen of Brownstown said with Jackson County being such a highly agricultural county — in the state and the nation — having setbacks of 1,000 feet from any home will stop producers from expanding. VonDielingen, who once tried to obtain county approval for a CAFO on property his family owns east of Brownstown, asked the commission to consider lessening the setbacks. VonDielingen withdrew his request for a hog operation in part because of opposition from some.

Aly Wells, program manager of policy and regulatory affairs for the Indiana State Department of Agriculture, said she’s received several calls from producers in the county about the issue. Wells wanted to let the county know that the department was available if the commission needed guidance about any proposed updates to the ordinance.

The proposed ordinance would not have any effect on a request for a special exception from a Seymour couple to allow for a 4,000-head feeder-to finish hog operation. Robert “Kyle” and Leah Broshearses’ proposed operation would be set on 10 acres northwest of county roads 1050E and 200S between Dudleytown and Uniontown. A public hearing on their request is set for 7:30 p.m. Oct. 14 in front of the county board of zoning appeals at the courthouse.

The original ordinance regulating livestock operations was enacted in 1968 and has not been updated since. That ordinance defined a confined feeding operation as any farm with more than 100 head of livestock or 5,000 fowl indoors or outdoors. In Indiana, an operation with more than 2,500 swine weighing more than 55 pounds is considered a confined animal feeding operation and subject to stricter regulations than smaller operations.

The proposed revisions would require future CAFOs to be located at least a mile away from municipalities and unincorporated towns. It also would require farmers to incorporate systems to lessen odors from such operations. Those regulations would require at least three acres for a commercial facility and 300-foot setbacks. A “farm, confinement feeding” may not be closer than 300 feet to an existing residence or platted lot.

The proposed regulations would set the minimum size for a commercial facility at 10 acres, require setbacks of 200 feet and require one mile between a CAFO and an existing residence or platted lot. Other proposed regulations in the ordinance include requiring the planting of trees and shrubs as a buffer and site plans to be prepared by a licensed architect or engineer.

Present zoning regulations do not require any biofilters or buffering (screening planting). The new regulations would require biofilters that could reduce particulate matter by 80 percent and odorous gases by 40 percent and would have to be installed on all pit exhaust fans. It also would require the planting of trees, shrubs and earthen berm that must reach a minimum cumulative height of 6 feet before the CAFO can begin operations.

Jackson County Plan Commission attorney Susan Bevers has been writing a new CAFO ordinance based on guidance provided by the Plan Commission as well as the general public during a series of hearings on the topic. The updated ordinance will not apply to the Broshears CAFO recently approved by the Jackson County BZA.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM, Planning and Zoning | Leave a comment

Jackson County BZA Approves 4,000 head CAFO

From the Seymour Tribune on October 15 . . .

CAFOA southern Indiana farmer has won permission from county officials to build a facility housing 4,000 hogs, even though dozens of residents are protesting the plans.

A Jackson County zoning board voted 4-0 to approve the confined feeding operation for a site a couple miles north of the town of Crothersville. The vote about 1:25 a.m. Wednesday followed six hours of public comments before a crowd of more than 100 people who packed a courthouse meeting room.

Many facility opponents told the board they were worried about odors, truck traffic and possible water contamination to wells and the nearby Muscatatuck River from stored manure.

Trina McLain said she had health concerns about the hog facility being about a quarter-mile from her home and that it would harm the quality of life for nearly 500 homes in the vicinity. “This is a very populated area, and most of these homes will be downwind from this site,” she said.

Farmer Kyle Broshears said the hog facility would be built as far as possible from the closest home in the area about 40 miles north of Louisville, Kentucky. His plans call for spending about $900,000 on the facility that would include an 81-by-417-foot building housing the hogs and a concrete pit holding about 1 million gallons manure. Broshears’ proposal still needs approval from the Indiana Department of Environmental Management. He said construction could begin next spring or summer.

Complaints about Broshears’ plans echo those about similar large hog farms around the state. Neighbors of a proposed facility in neighboring Bartholomew County have file a lawsuit seeking to block its construction, while a judge this summer ruled against a lawsuit against four large hog farms in eastern Indiana’s Randolph County.

Jackson County zoning board members said the proposal met the county requirements and is in an agricultural zone.”

Jackson County Plan Commission attorney Susan Bevers has been writing a new CAFO ordinance based on guidance provided by the Plan Commission as well as the general public during a series of hearings on the topic. The updated ordinance will not apply to the CAFO just approved by the Jackson County BZA.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM, Planning and Zoning | Leave a comment

Travelers vs. Maplehurst II – Liability for Pre-Notice Environmental Remediation Costs and Expenses

Dean FoodsThe Indiana Court of Appeals gives us this opinion related to an insurer’s obligation  for pre-notice remediation costs.

In 1997, Maplehurst Farms sold its property to Dean Foods.  Dean then discovered environmental contamination on the property as a result of underground storage tanks dating from the 1950s. Travelers vs. Maplehurst II

Maplehurst submitted a corrective action plan to IDEM in September 2002. Later in 2002, Maplehurst and Dean entered into a settlement agreement. The agreement acknowledged the existence of the corrective action plan.

Maplehurst then attempted to recover for cleanup costs from three of its insurers. Travelers denied Maplehurst’s claim and refused to provide a defense. Travelers had been notified of the issues in mid-2003. In 2004, IDEM issued a revised corrective action plan.

The denial of coverage made it to the Court of Appeals in 2011, in which the judges held that Travelers does not have to pay pre-notice costs and expenses. However, the Court of Appeals held that the Travelers was liable for the costs and expenses that Maplehurst incurred after it notified Travelers of the claim.  The trial court entered judgment against Travelers for more than $512,000.  Travelers vs. Maplehurst I

This case involved a determination as to when Maplehurst incurred the costs and expenses at issue. Judge Barnes wrote that “Maplehurst clearly obligated itself to remediate the property when it entered into the Dean Settlement, not when IDEM approved the final CAP. The final CAP merely described how Maplehurst would be required to remediate the property; Maplehurst agreed in the Dean Settlement to remediate to IDEM’s standards long before Travelers was notified of the claim.”.

“Although some of the remediation occurred after notice to Travelers, all of the post-notice costs at issue flowed from the Dean Settlement. As Travelers points out, an award of such costs would allow an insured to settle a claim, notify the insurer, and obligate the insurer to cover the settlement. Such a result would violate the policy provision that prevents an insured from voluntarily assuming any obligation without the insurer’s consent.”

The court concluded that the trial court erred when it interpreted Maplehurst I to require Travelers to pay costs that were incurred as a result of the Dean Settlement. The trial court was reversed.

Posted in Hazardous Waste, IDEM, Indiana Cases, Insurance Coverage | Leave a comment

Failure to Name Lienholder Is Not Cause for Dismissal of Inverse Condemnation Case

Storm DrainIn 2007, the Town of Yorktown and the Delaware County Drainage Board decided to improve storm drainage. The affected area included Snyder’s real estate. She did not agree to an easement or right-of-way. The local units of government proceeded with the project across her property anyway.  In her lawsuit, Snyder asserted claims of trespass and inverse condemnation. Snyder vs. Yorktown.

Snyder asserts that the project has caused damage to her property due to storm water, debris and pollutant run off flowing into the new drain and her property.

Snyder said she was unable to determine which entity was responsible for the project for four years. She finally figured it out in 2011 and then filed a tort claim notice. The trial court dismissed the trespass claim and the Indiana Court of Appeals affirmed.

The trial court also dismissed the inverse condemnation claim. The governmental units had argued that because she failed to notify/include her mortgagee of her claim, it should be dismissed. The Court of Appeals held that notification of a mortgagee is not grounds for dismissal. The Indiana Supreme Court has previously held that the failure to name all interested parties is not a jurisdictional defect in a condemnation action. It can be remedied by permitting the mortgagee to intervene.

The case was remanded for further proceedings.

Posted in Indiana Cases, Planning and Zoning, Real Estate

ERB Approves Proposed Rule regarding Off-Site Manure Ponds

Manure PondIndiana’s Environmental Rules Board unanimously approved draft rules related to off-site manure ponds and lagoons on Wednesday, October 15. These are Indiana’s initial set of rules governing stand-alone off-site ponds and lagoons built to hold manure trucked in from livestock farms. The rules would apply to earthen ponds, lagoons, tanks and other structures designed to store at least 1 million gallons of manure. 327 IAC 19 Proposed Rule.

Indiana has regulated manure storage at livestock farms since 1971. The new rules, if adopted in final form, are the first for “satellite” manure ponds, lagoons, tanks and other structures located off-site of livestock farms that serve as holding basins for manure trucked in from such farms.

Kim Ferraro, the Hoosier Environmental Council’s water and agriculture policy director, said the proposed rules for lagoons don’t provide sufficient buffer zones around sinkholes and other areas with porous limestone geology where surface and groundwater often mix. She said that poses a threat to private wells. “It’s quite frankly an unconscionable disregard of the environment and the health of people who live in rural communities and rely on well water for their drinking water,” Ferraro said.

Citizens Action Coalition maintained that the draft rules are “grossly inadequate” compared with what’s needed to protect Indiana’s public health and its water supplies.  Earthen manure lagoons can fail or leak during heavy rain events and taint the groundwater that rural residents rely on for private wells to provide their drinking water. CAC argued that the rules detailing the construction, management and operation standards for the manure lagoons will spur an influx of manure from livestock farms in other states.

The Indiana Pork Advocacy Coalition disputed that contention, saying the rules would actually make it more difficult to bring manure into Indiana from other states, in part because the storage basins would require state approval. It maintains that such lagoons give livestock farmers a chance to sell some of their manure to crop farmers, who apply the liquid waste to their land as an alternative to commercial fertilizer.

Bruce Palin, assistant commissioner of the Indiana Department of Environmental Management’s office of land quality, said Indiana currently has three off-site manure lagoons, one of which is part of a livestock farm operation but is not located on that farm.

Posted in Agriculture, Clean Water, Hazardous Waste, IDEM