By JUSTIN SCHNEIDER

justin.schneider@heraldbulletin.com

Mallard Lake Landfill is one step closer to becoming a reality.

On Friday, a judge in Marion Superior Court Environmental Division affirmed a previous decision, effectively returning to JM Corp. its landfill permit.

“My attorney told me (the judge) ruled against the state. That means we have our permit back,” said Ralph Reed, founder of JM Corp. “He basically ruled that the administrative judge’s decision was right.”

The decision marks the fifth time a court has ruled in favor of JM Corp.

Judge Michael D. Keele ruled that an environmental law judge acted appropriately when she ordered the Indiana Department of Environmental Management (IDEM) to reinstate JM Corp.’s permit renewal application and grant a time extension for information.

In 1978, JM Corp. announced plans to create a landfill in northern Madison County. A year later, the company purchased a 154-acre farm at the corner of County Road 300 East and County Road 300 North in Richland Township. But the project has been mired in controversy and legal opposition for parts of four decades.

The current controversy began in 2003 when IDEM denied JM Corp. renewal of its permit, deeming the application incomplete. After requesting a time extension, JM Corp. brought potential buyer Consolidated Waste Industries Inc. (CWI) into the picture.

CWI met with IDEM and paid operating fees of $10,000 on behalf of JM Corp. On Aug. 18, IDEM denied the request, saying the application was not timely and the company had not made a good-faith effort to provide the information requested. On Sept. 2, JM Corp. filed a petition of review.

Office of Environmental Adjudication (OEA) Judge Mary Davidsen made a final ruling on Oct. 20, 2004. Keele agreed with Davidsen in four respects: that Consolidated Waste Industries was an authorized representative of JM Corp., that CWI’s extension request was timely, that JM Corp.’s efforts to find a buyer were a good-faith effort to provide IDEM with requested information and that it was improper to deny CWI’s request for an extension of time and to deny JM Corp.’s renewal application.

Counsel for JM Corp. and IDEM testified before Keele on Oct. 17. Parties were given 30 days to submit findings of fact and Keele was expected to rule 30 days later.

“I have not been asked to decide whether a landfill is appropriate, only to determine whether the environmental law judge erred in the permit process,” Keele said during the hearing. “I have all the information I need to make a decision. The ball, you might say, is in my court.”

Keele’s decision upends IDEM claims that Davidsen’s ruling was arbitrary and capricious, and that CWI was not an authorized representative of JM Corp.

“IDEM is arguing that CWI was not the authorized representative of the JM Corp.,” Staci Schneider, press secretary for the Indiana Office of the Attorney General, said in October.

“Since they had acted as authorized representatives from the IDEM perspective, their actions could not be considered in determining whether JM Corp.’s request for additional time was timely or whether JM Corp. had made a good-faith effort.”

In his decision, Keele wrote: “This court will only reverse the OEA’s order if IDEM demonstrates that the OEA’s order was arbitrary and capricious. An agency’s action is ‘arbitrary and capricious when it is made without any consideration of the facts and lacks any basis that may lead a reasonable person to make the same decision...’”

Keele also wrote that JM Corp. was “... financially exhausted by IDEM’s unreasonable delay causing irreparable injury.”

JM Corp. attorney John M. Ketchan of Indianapolis-based Plews, Shadley, Racher and Braun, agreed that years of legal wrangling have done a grave disservice to JM Corp.

“The (Office of Environmental Adjudication) ruled that JM Corp. should have additional time to submit additional information,” said Ketcham, noting that JM Corp.’s request reached IDEM one day late on Aug. 6, 2003. “We found it somewhat unusual that a request for an extension was denied because it was one day late when IDEM has requests that have been lying around for four years.”

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