JAN 2 8 .2019 {ii ?ii-?ER INDIANA OFFICE OF ENVIRONMENTAL ADJUDICATION Mary Davidsen INDIANA GOVERNMENT CENTER NORTH . . 100 NORTH SENATE AVENUE Chlef Env1ronmenta1 Law Judge SUITE N103 INDIANAPOLIS, TN 46204-2273 (317) 233-0850 (317) 233-9372 FAX STATE OF INDIANA BEFORE THE INDIANA OFFICE OF ENVIRONMENTAL ADJUDICATION COUNTY OF MARION IN THE MATTER OF: OBJECTION TO THE ISSUANCE OF SOURCE CONSTRUCTION .) CAUSE NO. -5073 AND PART 70 OPERATING PERMIT NO. RIVERVIEW ENERGY CORPORATION DALE, SPENCER COUNTY, INDIANA Southwestern Indiana Citizens for Quality of Life Inc., and Valley Watch, Inc. Petitioners Riverview Energy Corporation Permittee/Respondent Indiana Department of Environmental Management Respondent FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING MOTION FOR JUDGEMENT ON COUNT I OF THE PETITION FOR REVIEW The Indiana Department of Environmental Management (IDEM) ?led a Partial Motion to Dismiss on September 13, 2019. The Petitioners ?led its response to the motion to dismiss and a Motion for Summary Judgement on Count I on October 17, 2019. IDEM responded to the Motion for SUmmary Judgment and replied in support of its motion to dismiss Count I on November 13, 2019. Petitioners ?led their Reply in Support of Their Motion for Summary Judgment on Count I of the Petition on December 2, 2019. The Of?ce of Enviromnental Adjudication (the OEA), having read the motions, responses and replies, now enters the following ?ndings of fact, conclusions of law and order. Finding of Fact 1. On June 11, 2019, the Indiana Department of Environmental Management (IDEM) issued Prevention of Signi?cant Deterioration/New Scurce Construction and Part 70 Operating Permit No. T147-3 95 54-00065 (the Permit) to Riverview Energy Corporation (Riverview). The Permit allows the construction of a direct coal hydrogenation re?nery to convert coal to liquid fuels at 4704 East 2000 North, Dale, Spencer County, Indiana (the Facility). 2. Southwestern Indiana Citizens for Quality of Life, Inc. and Valley Watch, Inc., (the Petitioners) ?led their Petition for Administrative Review (the Petition) on July 9, 2019. 3. Count I of the Petition alleges that the Permit was improperly issued because IDEM did not timely comply with the requirements of Access to Public Records Act (APRA), I.C. ?5~14-3 et seq. alleged failure to timely respond did not allow the Petitioners suf?cient time to adequately prepare comments regarding the Pem?t and is a violation of 326 IAC Petitioners request that the Permit be vacated and remanded to IDEM to reopen the comment period. 4. On June 19, 2018, Charles McPhedran, on Earthjustice?s behalf, made the following request to IDEM for public records: All records regarding Riverview Energy Corporation, including but not limited to: all correspondence, including letters and emails (keyword ?Riverview Energy?); all permit applications and other permit submissions; notes, including from meetings and telephone calls; all materials regarding Veba Combi Cracker (VCC) technology; and all air quality modeling information including modeling input. 5. Petitioners requested access to public records that were ?necessary to the public?s notice and understanding of the proposed Re?nery?s emissions implications.?1 The request noted that the requester had searched the Virtual File Cabinet2 (V FC) for ?Riverview Energy?. 6. On June 25, 2018, Valley Watch Inc. wrote to IDEM requesting that the public comment be delayed until such time as IDEM ?lled the public records request. Valley Watch further requested a public hearing on the Permit. 7. On November 15, 2018, IDEM contacted Mr. McPhedran to request additional information about the public records request. 8. Charles of Earthjustice responded to request on November 21, 2018 to both David Shilling, IDEM Of?ce of Records Management3 and Jenny Acker, IDEM Air Permits Branch.4 Mr. McPhedran noted that he had been able to access some of the requested records, but the remaining requested records were not in VF C. 9. The IDEM published a draft permit on October 24, 2018. The public comment period ended on December 10, 2018. Petition for Administrative Review, ?led July 9, 2019, page 8, 1[28. 2 The Virtual File Cabinet is a ?public-facing? database ?maintained by IDEM in a searchable format and accessible to any computer with an Internet connection.? Partial Motion to Dismiss, ?led September 13, 2019, page 6. 3 Exhibits and E. 4 Exhibit E. 10. Petitioners timely submitted comments on December 10, 2018. 11. On February 1, 2019, Petitioners ?led a formal complaint with the Indiana Public Access Counselor. On March 21, 2019, the Counselor requested additional information. Petitioners responded on March 29, 2019. As of the date of this Order, the Counselor has not issued an opinion. 12. IDEM responded to the records request on June 3, 2019 (the Response). 13. The Response included information on ?the activity or activities involved in a Part 70 permit action and in?lrmation suf?cient to noti?/ the public as to the emissions implications of those activities? that was not available to Petitioners through the VFC or any other method. Some of this information was dated prior to the public comment period, so was in possession, but was not provided until the ResponSe in June 2019. 14. Petitioners state that they would have submitted additional or different comments relating to the new information if they had received this information prior to the public comment period. Petitioners further allege that they did not have suf?cient time to submit comments between receipt of the Response and the issuance of the Permit. The new information related, in part, to the following aspects of the Permit: a. Exclusion of nearby sources below 100 ton-per-year threshold from Riverview?s NAAQS5 modeling for certain air pollutants b. Documents regarding Hazardous Air Pollutants emissions analysis and health assessment. 0. Significant modi?cations to a table relating to emissions data from ?aring scenarios. d. The Permit was based on air modeling that changed significantly after the public comment period. 15. On June 11, 2019, IDEM issued the Permit and Technical Support Document (TSD). IDEM responded to the comments submitted in the public comment period in the TSD. 16. IDEM ?led a Partial Motion to Dismiss on September 13, 2019. Riverview Energy Corporation joined in Partial Motion to Dismiss on September 26, 2019.6 Petitioners ?led its Motion for Summary Judgment on Count I on October 17, 2019 and in Support thereof, ?led its Response to Motion to Dismiss and Brief in Support of Petitioners? Motion for Summary Judgment on Count I. On November 13, 2019, IDEM ?led its Response to Petitioners? Motion for Summary Judgment on Count I and Reply in Support of Partial Motion to Dismiss. Petitioners ?led their Reply in Support of the Motion for Summary Judgment on Count I of the Petition on December 2, 2019. 5 National Ambient Air Quality Standards. 6 Riverview did not participate any ?irther in the brie?ng of the Motion to Dismiss Count I or subsequent Motion for Summary Judgment of Count I. Conclusions of Law 1. The OEA has jurisdiction over the decisions of the Commissioner of the Indiana Department of Environmental Management pursuant to Indiana Code (I.C.) 4-21.5-7, et seq. 2. Findings of Fact that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed. 3. The Petitioners have alleged that IDEM failed to comply with the requirements of 326 IAC 2-7-1 This rule states: (0) All Part 70 permit proceedings, including initial Part 70 permit issuance, signi?cant modi?cations, minor permit modi?cations, and renewals, must provide adequate procedures for public notice, including offering an opportunity for public comment and a hearing on the draft Part 70 permit as follows: (1) Prior to issuing a Part 70 permit, the draft permit must be available for review in the following manner: (C) The notice must identify the following: The affected facility. (ii) The name and address of the permittee. The name and address of the commissioner processing a Part 70 permit. (iv) The activity or activities involved in a Part 70 permit action and information su?icient to noti?z the public as to the emissions implications of those activities. The emissions change involved in any Part 70 permit modi?cation. (vi) The name, address, and telephone number of a person from whom interested persons may obtain additional information, including copies of a Part 70 permit draft, the application, all relevant supporting materials, and all other materials available to the commissioner that are relevant to a Part 70 permit decision. 4. The Access to Public Records Act7 (APRA) provides that any person may inspect and make copies of the public records of any public agency. 3 Within a reasonable time after a request, the agency shall either provide copies of the requested records or allow the person to make copies.El A person who is denied access may ?le in a circuit or superior court to compel compliance.10 7 LC. ?5-14-3 et seq 8 LC. 9 LC. 101C. 10. Motion to Dismiss IDEM has ?led a motion to dismiss Count I of the Petition for Administrative Review for failure to state a claim under Ind. T.R. Hu?inan v. Indiana O?ice of Environmental Adjudication, er al. 811 806, 814 (Ind. 2004). A motion to dismiss tests the legal suf?ciency of a claim, not the facts supporting it. Garski v. DRR, Inc, 801 642, 644 (Ind. Ct. App. 2003). In reviewing a motion to dismiss, ?a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. This Court views the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party.? Hu?hian at 814. IDEM argues that the OEA cannot grant the relief Petitioners seek because OEA does not have the authority to enforce APRA. This is true. Petitioners may not seek APRA remedies from the OEA. However, the Petitioners are not asking for relief under APRA. They are asking for relief because of alleged failure to comply with 326 IAC in that Petitioners did not have suf?cient information about the emissions implications of the Facility. As a result, Petitioners could not submit meaningful comments. Petitioners are asking OEA to remand the Permit back to IDEM for another comment period. This clearly falls within jurisdiction. conclusory statement that the draft Permit and the TSD meet the requirements of the rule is not suf?cient to support dismissal. Under the rule, IDEM must provide suf?cient information about the emissions implications of this Facility. IDEM has asked for dismissal of Petitioners? allegation that IDEM failed to do so. However, dismissal is only appropriate if Petitioners would not be entitled to recover under any set of facts. Here, Petitioners? recitation of facts in the Petition for Review, if true, could support a ?nding that IDEM violated 326 IAC Therefore, dismissal of Count I is not appropriate. Potitioners? Motion for Summary Judgment The Petitioners have ?led a motion for summary judgment on Count I. The OEA shall consider a motion for summary judgment ?as would a court that is considering a motion for summary judgment ?led under Trial Rule 5 6 of the Indiana Rules of Trial Procedure.? I.C. 4-21.5-3-23. Ind. Trial Rule 56 states, ?The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.? The moving party bears the burden of establishing that summary judgment is appropriate. All facts and inferences must be construed in favor of the non-movant. Gibson v. Evansville Vanderburgh Building Commission, 61? al., 725 949 (Ind. Ct. App. 2000). The mere fact that IDEM did not provide the public records in a timely fashion is not enough to ?nd that Petitioners did not have suf?cient information about this Facility?s emissions implications. Summary judgment would be appropriate if proof is provided of speci?c instances in which the public records produced in June 2019 contained relevant and signi?cant facts about the Facility?s emissions that were not available in the other sources of information available to Petitioners. Petitioners provided uncontroverted proof of such speci?c instances. 11. IDEM must comply with the rule. For the rule to have any meaning, the Petitioners must have accurate, complete and up-to-date information. In this case (I) IDEM did not respond to the public records request for almost a year; (2) Petitioners received the response only a few days before the Permit was issued and several months after the public comment period closed; and (3) the information provided was neither in the VCF or TSD even though it was in possession during this entire period of time. It is critical that although IDEM possessed the information, it did not provide Petitioners with access to that information. The presiding ELJ agrees that ?An agency commits serious procedural error when it fails to reveal portions of the technical basis for a pr0posed rule in time to allow for meaningful commentary.? Connecticut Light Power o. v. Nuclear Regulatory Com. 673 F.2d 525, 530-531, 1982 US. App. LEXIS 20990, 218 US. App. DC. 134. 12. IDEM violated There is no question of fact that the records obtained by Petitioners in June 2019 contained relevant and signi?cant information regarding the emissions implications that was not available either in the VF or in the TSD. Petitioners assert that they would have made comments to IDEM regarding this information. signi?cant delay in responding to the request for public records further supports a conclusion that IDEM did not comply with Summary judgment is appropriate in Petitioners? favor. 13. IDEM argues that this appeal provides Petitioners with the opportunity to present evidence regarding the information on which they would have commented. It is true that Petitioners will be able to present this evidence during a hearing. However, the question remains whether the appropriate remedy is to remand the permit to IDEM and order a new public comment period. There are still several other issues that must be resolved in this matter before a ?nal order can be issued. Judicial ef?ciency must be considered. A remedy can be devised when all issues have been considered and a ?nal order is issued. Order IT IS ORDERED, ADJUDGED AND DECREED the Indiana Department of Environmental Management?s Motion to Dismiss is and the Petitioners? Motion for Summary Judgment on Count I is GRANTED. You are further noti?ed that pursuant to provisions of IC ?4-21.5-7-5, the Of?ce of Environmental Adjudication serves as the ultimate authority in administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. This is an order subject to further review consistent with applicable provisions of IC ?4~21.5 et seq and other applicable rules and statutes. IT IS SO ORDERED this 28th day of January, 2020 in Indianapolis, IN. 61m II - Hon. Catherine Gibbs Environmental Law Judge DISTRIBUTION Elizabeth Zlatos, Esq. Kyle W. Burns, Esq. Clark Kirkman, Esq. Of?ce of Legal Counsel Indiana Department of Environmental Management Indiana Government Center North, Room 1307 100 North Senate Avenue Indianapolis, IN 46204 A. Watson, Esq. Cantrell Strenski Mehringer LLP 150 West Market Street, Suite 800 Indianapolis 1N 46204 Charles McPhedran, Esq. Earthjustice 1617 John F. Kennedy Blvd, Suite 1130 Philadelphia PA 19103 Lauren Piette, Esq. Earthjustice 311 S. Wacker Dr., Suite 1400 Chicago IL 60606 Terri A. Czajka, Esq. Donald Snemis, Esq. Ice Miller LLP One American Square Suite 2900 Indianapolis IN 46282-0200