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State must seek EPA approval before reclassifying ethanol plants

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Even though the Environmental Protection Agency changed a rule to exclude ethanol plants from the category of chemical process plants which would affect emissions permitting, Indiana had to seek approval from the federal agency before it could reclassify the ethanol production facilities.

In 2010, the Indiana Department of Environmental Management issued permits to some fuel-grade ethanol production facilities which did not categorize them as “chemical process plants,” as had been the case in the past. Those that fall under the chemical process plant category are permitted to emit only 100 tons of certain air pollutants a year. Other facilities not under that category may emit up to 250 tons of certain air pollutants a year.

The Natural Resources Defense Council challenged the reclassification, which led IDEM’s Office of Environmental Adjudication to find the plants should have been considered under the chemical process plants category. But the Marion Superior Court reversed.

The issue before the Indiana Court of Appeals is whether the state could properly exclude fuel-grade ethanol plants from this category without EPA approval of a modification of the Indiana State Implementation Plan.

The last EPA-approved SIP from 2001 includes these plants as chemical process plants. In 2007, the EPA promulgated a final rule excluding the ethanol plants from the definition of “chemical process plant.” Indiana never sought approval from the EPA to change its SIP but did enact a new law and administrative rule making the modifications.

“As the EPA rule change was more than a mere ‘clarification,’ Indiana was obliged to seek approval of an amendment to its SIP. Because it did not, the OEA was correct that the facilities were chemical process plants pursuant to the Indiana SIP and permits allowing pollutant emissions at the 250 ton-per-year level should not have been issued absent an EPA-approved change in the Indiana SIP,” Judge Melissa May wrote in Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC; Poet Biorefining-Cloverdale, LLC; Central Indiana Ethanol, Inc., et al., 49A02-1205-MI-423.

“Even if the failure to amend Indiana SIP could be disregarded, as the appellees suggest, IDEM’s past consistent treatment of fuel ethanol plants as chemical process plants would dictate the result we reach,” she continued. “Because IDEM had, in its prior permitting decisions, given the term ‘chemical process plant’ a ‘definitive interpretation, and later significantly revise[d] that interpretation,’ it was obliged to seek EPA approval for an amended SIP.”

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

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  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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