Summary of Greenview Landfill Permit Application – 1989-Present

The original applicant for the Greenview Landfill was Triple G Landfills, Inc. Note, Triple G was a wholly owned subsidiary of GED (Greenfield Environmental Development Corporation) – a Delaware company with offices in Indiana.

Starting in December of 1989 and finally being passed in the beginning of 1990, Fountain County Commissioners passed an ordinance that basically called for a “county level” permitting procedure for landfills, to take place after IDEM approved a permit application.

Triple G filed a lawsuit in federal court, and the judge of the United States District Court for the Southern District of Indiana agreed with them that the ordinance was not allowable, as the county was pre-empted by State of Indiana laws with respect to landfills and their siting. Fountain County admittedly has no zoning and therefore, this ordinance was also invalidated as an attempt to enact a zoning ordinance without a comprehensive plan, as required by law.

The Commissioners appealed to the 7th Circuit and lost the appeal in 1992. They had requested a stay of enforcement of the Southern District Court’s judgment, but were denied. This litigation is now over, and the opinions of both the United States District Court for the Southern District of Indiana and the 7th Circuit Court of Appeals are available for public review.

Triple G applied for a permit for the Greenview Landfill or Greenview Disposal and Recycling Facility on November 7, 1991.

Triple G’s application was denied by IDEM on May 15, 1995 because of a lack of need for the facility. The needs analysis was a preliminary analysis – IDEM never conducted a technical review of the application or issued approval of the proposed design.

Triple G filed a Petition for Review with Office of Environmental Adjudication, on June 2, 1995. (This is the administrative review level – which had to be pursued before anyone could file a lawsuit in state court over the issue). The petition stated many reasons for appeal, including 1) a violation of equal protection because existing landfills were treated differently than new ones, 2) due process violations, 3) there was in fact a local and regional need for the landfill, 4) the need determination was violative of the Interstate Commerce Clause and based on unpromulgated rules, and 5) the promulgated rules were in excess of statutory authority.

However, Triple G never followed up on the Petition for Review. Triple G’s attorney was kept apprised of the proceedings with the OEA, but Triple G never made any substantive arguments after its filing of the Petition for Review.

NJK Farms, Inc. (the current landfill permit applicant; a company with which George Pendygraft is affiliated) filed a motion to be substituted as real party so that NJK could take Triple G’s place in appealing the denial of the permit. The Administrative Law Judge (ALJ) determined that NJK should be joined as an indispensable party, but they were not substituted as the real party in interest, as the ALJ reiterated in his final order, despite the fact that George Pendygraft and NJK continue to refer to NJK as the real party in interest.

At least since 1989, NJK Farms, Inc. has owned the property on which the landfill was to be sited. Triple G had an option to purchase the land under an option contract with NJK, which contract is the root of NJK’s argument that they should be permitted to stand in the shoes of Triple G and take over the appeal of the denial of the permit. The option contract between NJK (by George Pendygraft) and Triple G stated that Triple G was to make monthly payments to retain the option. In the event that Triple G defaulted, full settlement would consist of Triple J’s conveyance of any and all rights to the pending landfill permit application to NJK.

In March of 1996, Triple G was notified by NJK that the option to purchase was no longer viable, as Triple G had failed to make its monthly payments. NJK argued that at that point, the permit application and all the attendant rights were conveyed to NJK.

NJK vigorously argued that the permit was unlawfully denied, and finally filed a Motion for Summary Judgment. NJK mainly argued that the denial was based on an unconstitutional needs analysis (which, NJK argued, violated the Interstate Commerce Clause because it attempted to stop waste from other states), an unpromulgated rule regarding 20-year waste projections, and that the standard was arbitrary and capricious because key words like “local” and “regional” had no clear definitions (a due process argument).

IDEM countered, equally vigorously opposing NJK’s standing to make these arguments and pointing out that IDEM was not in privy of contract with the parties and shouldn’t be forced to recognize a transfer of permit application, which is not provided for in Indiana law. IDEM also argued that they had no opportunity to examine the good character or net worth of NJK.

The Administrative Law Judge’s opinion denied NJK’s requested relief, making it clear that NJK was not the real party in interest, because public policy precluded enforcement of the option contract.

NJK and Pendygraft filed a Petition for Judicial Review with the Marion Superior Court, against IDEM and the ALJ. This is the lawsuit that is still pending; the lawsuit in which a Settlement Agreement was filed in 2005, and in which the request for clarification of the terms of that agreement was filed in December 2007.

As an aside, the Marion County case was removed to federal court at some point. However, the federal judge eventually remanded the case back to Marion County, where it has remained. The federal court case was closed entirely in 2003.

Basically, in Marion County court (state court) both sides continued to reiterate the arguments they made at the OEA until September 12, 2005, when they entered into a settlement agreement.

The settlement agreement requires NJK to pay IDEM $31,300 basically for administrative costs, and required them to submit updated needs documents within 45 days. Then, IDEM was to publicize a 30 day public comment period. These procedures were followed, and IDEM and NJK filed a Stipulation with the court in 2006 that NJK had established a need for the facility.

NJK was then to submit application materials to IDEM, so that IDEM could determine whether the landfill design complied with current solid waste regulations. Ostensibly because it would have been too hard to get new hydrology studies done in time, IDEM gave NJK approximately a year’s worth of extensions to file the application materials – until May 1, 2007.

After their initial receipt of application materials on April 30, 2007, IDEM determined that the materials were incomplete (in large part because NJK was refusing to treat it as a “new facility” application – instead arguing that it was a minor modification of an existing facility, which of course, would mean many fewer requirements for them to comply with). NJK submitted updated materials by their December 1, 2007 deadline (actually, the first business day thereafter).

In December 2007, NJK also filed a motion for clarification and enforcement of the settlement agreement with the Marion County Court under the existing cause number of the lawsuit in which the Settlement Agreement was filed in 2005. The litigation had been stayed (inactive – to be dismissed if everything was resolved to everyone’s satisfaction pursuant to the Settlement Agreement) upon the filing of the Settlement Agreement. This motion argued that IDEM incorrectly interpreted the terms of the Settlement Agreement, and basically told the judge how they believed that the agreement should be interpreted.

While this motion was pending, and prior to a hearing that had been scheduled on the motion, IDEM issued a Notice of Completion, indicating that NJK’s permit application was complete and would undergo technical review. NJK and IDEM then filed an agreement with the court to vacate the hearing that had been set to deal with NJK’s motion for clarification and enforcement of the settlement agreement, thus putting the litigation on hold again.

In another important development, in March 2008, Senate Bill 43 was signed into law by Governor Daniels. In counties without zoning, the law applies to applications for facilities to be built after April 1, 2008. If the application materials to build or modify such a facility were submitted before April 1, 2008, but a permit had not been issued by that date, the new law requires the applicant to submit a new permit application that complies with the laws and regulations in place at the time the new permit is sought. The law also provides that the county executive must pass an ordinance approving the facility before a permit can be issued.

A public hearing on the Greenview permit application had been scheduled for March 25, 2008, and Tim Junk of the Attorney General’s office, who represents IDEM, e-mailed Donn Wray, who represents NJK, to suggest canceling the public hearing in light of the new law and the need for NJK to re-submit its application. NJK wanted to go forward with the hearing despite the new law, and the hearing was held on March 25. The hearing was well-attended by Fountain County residents, and public comments at the hearing were overwhelmingly opposed to the landfill.

The public comment period was set to close ten days after the hearing, but on the request of the Concerned Citizens of Fountain County, Inc., (and over NJK’s written objection) the public comment period has been extended until May 3, 2008.

In the meantime, NJK has filed another lawsuit, this time against the Fountain County Council and Commissioners. The lawsuit requests invalidation 2006 Fountain County ordinance, which established a waste disposal fee of $2.50 per ton, payable to the county. In the alternative, the lawsuit requests $15 million in damages. NJK filed the suit in Fountain County, but immediately requested a change of venue to another county, which has been granted. No other decisions have been made in the case.