ILNews

Ethanol plant emissions suit may be bound for Indiana Supreme Court

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Indiana’s ethanol industry faces an uncertain regulatory environment and likely more stringent emissions standards after a recent Indiana Court of Appeals ruling. A state agency will ask the Indiana Supreme Court to hear the case, as several corn-to-fuel plant operators also are expected to do.

The Court of Appeals this month denied a rehearing in Natural Resources Defense Council v. POET Biorefining-Cloverdale LLC et al., 49A02-1205-MI-423. The court ruled for NRDC, holding that Indiana could not permit ethanol plants to operate in a category allowing annual emissions of up to 250 tons of airborne pollutants. The plants instead should be in a category allowing up to 100 tons, the court held.

NRDC and the permitting agency, Indiana Department of Environmental Management, agree that the state was following guidance from the federal Environmental Protection Agency when it issued permits for a few plants at the 250-ton threshold. The EPA in 2007 determined that ethanol plants should not be considered “chemical process plants” that are subject to the lower emission standard.

The issue, though, is whether IDEM was allowed to grant permits to ethanol plants adopting that federal guidance without first getting formal EPA approval for a change in its state implementation plan as required under the Clean Air Act.

“Other states have not been doing the same thing that Indiana has,” said Ben Longstreth, a Washington attorney for NRDC, explaining why the national organization brought suit here. “Indiana is unique in that it started issuing permits at a different level without changing its state implementation plan.”

According to NRDC, the primary air pollutant from fuel-grade ethanol plants is particulate matter (soot), but other emissions may include volatile organic compounds and greenhouse gases such as nitric oxide, carbon monoxide and sulfur dioxide. Longstreth said NRDC has members in Indiana who’ve complained about emissions from ethanol plants.

The Office of Environmental Adjudication within IDEM determined that when the agency issued permits to some plants in 2010, it should have categorized them as chemical process plants. A Marion Superior judge reversed that finding, but the Court of Appeals reversed the trial court, holding that the state improperly permitted plants in Cloverdale, Marion and North Manchester when, following EPA guidance, it didn’t classify them as chemical process plants.

But Betsy Zlatos, program counsel for the Office of Air Quality at IDEM, said the agency is in a Catch-22. IDEM did file a proposed revision with the EPA that adopted the federal agency’s guidance saying fuel-grade ethanol plants don’t

have to be treated as chemical process plants. Zlatos said the EPA has been sitting on the state’s request for almost two years.

“We’re at the mercy of the approval system,” Zlatos said. She confirmed the department will ask the Supreme Court to grant transfer in the case, and other attorneys familiar with the suit say the ethanol plant operators also are likely to appeal.

“We’re hoping the Supreme Court will get a feel for what’s going on. We want to follow the law,” she said, noting that IDEM did everything it was required to do and shouldn’t be penalized because the EPA dragged its feet on a plan adopting its own language.

Nevertheless, Judge Melissa May wrote for the Court of Appeals panel that without approval from the EPA, the state could not issue permits as it did.

“The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of ‘chemical process plants’ without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain ‘chemical process plants,’ and we must reverse the trial court,” May wrote.

The opinion also noted the EPA’s 2007 guidance on ethanol facilities is the subject of federal litigation in the D.C. Circuit Court. That IDEM promulgated a new rule and submitted it to the feds “was not enough – EPA approval … was required,” May wrote for the Court of Appeals.

Longstreth said EPA is taking a fresh look at emissions standards for ethanol plants.

“In part, the issue is about pollution from these plants, but also the issue is to make sure the system of cooperative federalism between EPA and the states are acting together works,” Longstreth said.

ethanolAttorneys representing the plant operators in the case did not respond to requests for comment. But Frank Deveau, co-chair of Taft Stettinius & Hollister LLP’s environmental practice, said he believes the plant operators will appeal.

“It seems like the Court of Appeals may have been hypertechnical in its enforcement of procedures,” said Deveau, who isn’t involved in this case but has experience representing ethanol plant operators in the sighting process. “I don’t think this is going to be left at the 100-ton limit.”

Some other states aren’t required to go through the state implementation plan process as Indiana does and, therefore, can rely directly on EPA rules and guidance when approving ethanol plants. Deveau said that if the Court of Appeals opinion were to stand, it could have a negative effect on the industry in Indiana.

“Costs would increase such that the industry, if I was looking to locate a facility, I would go to a different state and just go by the EPA rule,” he said.

Zlatos agreed, saying the ruling “puts ethanol plants in our state at a distinct disadvantage.”

Longstreth argued those concerns are overstated. “In our experience, many ethanol plants have operated many years in Indiana under the (100-ton) threshold and should be able to operate under that threshold.

“If it’s a larger plant, they just have to make sure they’re employing the best pollution controls,” he said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT