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Ethanol plant emissions suit may be bound for Indiana Supreme Court

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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.•

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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