INDIANAPOLIS, Ind. — New Fashion Pork has won a round in court against the Indiana Department of Environmental Management’s (IDEM) permitting process.

On Jan. 5, the state chief environmental law judge ruled that New Fashion Pork should be granted permits for two confined feeding operations it has in Greene County in southern Indiana.

IDEM had denied the requests three times because the agency said New Fashion Pork incorrectly filled out the permits when it did not check a box on the form admitting to damaging the environment because of a manure spill.

While New Fashion Pork admitted to a manure spill, the company denied it had endangered the environment or human health.

Dan McInerny, the lead attorney for New Fashion Pork, said IDEM was using a broad interpretation of state law, something he said wasn’t intended by the legislation. “I know because our firm wrote the law,” said McInerny, a partner with the Indianapolis law firm of Bose McKinney & Evans LLP.

“The 2009 act includes a disclosure form that is required of applicants,” says McInerny. “It required you check a box if there was any allegation by the state or a federal agency that you had violated the law. But it said that only needed to be disclosed if it presented a threat to human health or the environment.”

New Fashion Pork is based in Jackson, Minn., and has pork production facilities in Minnesota, Iowa, Illinois, South Dakota, Wyoming, and in Linton and Bloomfield in Indiana.

McInerny said New Fashion Pork was filling out the form properly, but IDEM had interpreted it to mean that any release, no matter the size, required applicants to check both boxes. And without checking both boxes, McInerny said IDEM would deny a permit.

New Fashion Pork admitted to a manure spill that went into Bogard Creek, but since there was no fish kill and no humans were affected by the spill, the company did not see a need to check the second box.

IDEM disagreed and three times denied confined feeding operation permits for New Fashion Pork. During the hearing before Environmental Law Judge Mary L. Davidsen, IDEM told the judge that it consulted with legal counsel and developed “unpublished internal policy guidance for reviewing Disclosure Statement Attachments.”

IDEM said that to make sure it is consistent and accurate in its review, it does not “analyze, evaluate or take into account the volume of the alleged release, the concentration of the alleged release, whether the alleged release resulted in a fish kill, or the civil penalty worksheets prepared in response to the alleged release.”

At the same time, IDEM admitted that it did not consult with biologists or toxicologists in deciding whether there was a substantial endangerment to human health or the environment.

Judge Davidsen ruled that the law is unambiguous in determining when a disclosure statement needs to be included with an application.

“First, state or federal (or foreign) officials alleged that the responsible party committed acts or omissions that constituted a material violation of state or federal environmental law,” wrote Davidsen.

“Second, if the acts or omissions alleged presented a substantial endangerment to human health or the environment. IDEM has no authority to require any applicant subject (to the law) to include the disclosure form with their application unless it meets the criteria immediately above.”

Even though IDEM argued that the disclosure form was a part of the application and must be filled out by every application, Davidsen ruled it applied only to “qualifying applicants.”

Davidsen also ruled that New Fashion Pork did not intentionally misrepresent or conceal information, and that it did not fail to complete the application.

“The judge agreed with the intent of the statute as it was written,” said McInerny. “The release did not present a threat, and New Fashion Pork filled out the form properly.”

McInerny said IDEM was upfront in its intent throughout the process and has, in fact, required all applicants to fill out the disclosure form in order to obtain a permit.

“New Fashion Pork did not want to admit to endangering human health or the environment when, if fact, it did not believe it did,” said McInerny. “I think that in this hearing it helped that we knew the intent of the law since we wrote it. The judge agreed with us and said the language was unambiguous.”

McInerny said the ruling will have a big impact on New Fashion Pork. Had the company been forced to admit it endangered the environment in Indiana, it could have had a negative effect on any applications it filed in other states.

Although Davidsen ruled IDEM must grant New Fashion Pork a permit, the agency has until Feb. 5 to file an appeal.