By DAN DAVIS, Tribune
Indiana's Office of Environmental Adjudication has ruled in favor of a Bartholomew County woman's plans to build an 8,000-head hog operation in Redding Township.
That ruling means the Indiana Department of Environmental Management acted properly in approving Talara Lykins' permit for the confined feeding operation on Sept. 13, 2005.
Chief Environmental Law Judge Mary L. Davidsen wrote in her ruling that the "petitioners have not demonstrated that IDEM failed to comply with any rule or statute that applies to the issuance of CFO permits."
The ruling was anticipated by Lykins' attorney, Joe Miller.
"I felt all along that there was very little merit to the cases brought," Miller said after learning of the ruling Monday afternoon.
The ruling, filed Friday, was in response to an October 2005 objection to the construction permit filed by Jennings Water Inc. and a number of area residents.
"Talara has been wanting to get started on this project for a while, and hopefully it can get started soon," Miller said.
He pointed out, however, that there are still legal stumbling blocks ahead.
One of those is an appeal to the Indiana Court of Appeals of a ruling this spring by Jackson Circuit Judge Bill Vance. In that May 9 ruling, Vance upheld the Jackson County Board of Zoning Appeals' decision in October 2005 that granted Lykins a special exception to build the confined feeding hog farm on an 11-acre site at 1125 N. 1240E, northeast of Reddington.
"So far we've had IDEM, the BZA, two circuit courts and the office of environmental adjudication all agree that this should go forward," Miller said. "We hope at some point that it will."
Vance's decision stems from a Nov. 9, 2005, petition by a group of residents living in the area of Lykins' proposed operation that asked the court to review the BZA decision, contending the farm would cause them harm and that the BZA broke the state's Open Door Law by holding two separate votes on the issue. The first vote ended in a 2-2 tie while the second was 3-1 in favor of Lykins.
That petition was filed by Robert Sexton, Melinda Sexton, Stephanie Flinn, Craig Flinn, David Helt, Gail Helt, Jerry Marsh, Hazel Marsh and Celeste Bowman. A similar petition was filed by Jennings Water Inc., which has a well field east of the proposed building site.
Area residents and the utility are concerned about a variety of environmental issues, including a potential threat to area water supplies should the concrete holding pen for thousands of gallons of manure leak or rupture.
They're also concerned about the soil type in the area and other issues.
Vance wrote in his decision that none of the plaintiffs were directly affected by the BZA's decision, with the exception of the Marshes, who own land adjacent to Lykins' land. The Marshes' property is zoned agricultural, as is Lykins' ground.
Judge's ruling
Findings outlined by Chief Environmental Law Judge Mary L. Davidsen included:
Issuance of a zero-discharge confined feeding operation permit to Lykins is "not in violation of applicable rule or statute within IDEM's jurisdiction."
Jennings Water Inc. determined the "minimum default area, with a diameter of 3,000 feet, is sufficient to protect their well heads from contamination under the Federal Well Head Protection" five-year plan. The utility's well field is about 2 miles from the Lykins property, the ruling states.
Petitioners "failed to show with substantial evidence" they were in "immediate future harm due" as a result of the permit.
The court is "not persuaded that this building will be akin to a building that is floating on water."
That while petitioners "showed that some design changes might possibly improve the proposed building, substantial evidence was not introduced at the hearing to prove that failure of the proposed building was imminent."