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Saturday, February 20, 2010
Ind. Decisions - "Landfill decision overturned"
The Court of Appeals decision Feb. 18, 2010 in the case of IDEM v. NJK Farms, Inc. (see ILB summary here) is the subject of a story today by Curt Slyder in the Lafayette Journal Courier that begins:
KINGMAN — Score one for the foes of what some have dubbed the proposed “Fountain Mountain.”The Indiana Court of appeals has overturned a decision by a Marion County court, that the Indiana Department of Environmental Management, or IDEM, broke a settlement agreement with the developer of a long-proposed landfill near Kingman.
In its ruling earlier this week, the appeals court said the Marion County court did not have the proper jurisdiction to make the decision, noting the decision should instead be made by the Office of Environmental Adjudication.
Opponents of a long-proposed 16.5 million-cubic-yard landfill and recycling facility near Kingman are pleased but not complacent.
per of the proposed Greenview Recycling and Disposal Facility, is vowing to keep up the fight, which has been in and out of courts over the last few years.
“We disagree with (the decision) for a whole host of reasons,” said Donn Wray, an attorney for NJK. “We expect this to go to the state supreme court.”
NJK first submitted an application for the landfill in November 1991. After years of wrangling, IDEM deemed it complete on Feb. 12, 2008.
But a change in Indiana law that was passed during the General Assembly’s 2008 session required that new applications include county ordinance approval for the facility.
In June of that year, IDEM’s Office of Land Quality requested that NJK withdraw its present application for a landfill and submit a new one within 30 days. According to IDEM, the developer failed to respond to questions from IDEM over issues that included the new law.
NJK then filed a civil lawsuit in Marion County against IDEM, alleging that the state agency breached a prior settlement agreement between them. The Marion County court eventually ruled in favor of NJK.
IDEM then appealed the ruling.
Since IDEM’s actions were state agency actions “the AOPA (Indiana Administrative Orders and Procedures Act) provides the exclusive means to review IDEM’s actions and the trial court did not have subject matter jurisdiction to consider NJK’s arguments,” the Court of Appeals wrote in its decision.
Posted by Marcia Oddi on February 20, 2010 03:04 PM
Posted to Ind. App.Ct. Decisions