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Objection to Issuance of Construction Permit Application for Sanita=
ry
Sewer Permit Approval No. 19694
Aqua Indiana, Inc.
2011 OEA 14, (10-W-J-4380)
[2011 OEA 14, page 14 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2011 OEA 14 cite this case as
&=
nbsp; Aqua Indiana, Inc., 2011 OEA 14.
TOPICS:
sanitary sew=
er
extension
Permit
dismissed
Stay Hearing=
Order Denyin=
g Stay
stipulated s=
tay
hearing transcript
home owner c=
ost per
property
percentage o=
f homes
served
financial bu=
rden on
homeowners
contribution=
future comme=
rcial
use
insufficient
capacity for future development
affordable f=
inancing
options
e. coli
septic system
failure
15-inch main=
327 IAC 3
327 IAC 15-1=
5-9
8-inch diame=
ter PVC
(SDR 35)
8-inch diame=
ter PVC
(SDR 21, ASTM, D2241)
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM:  = ; Julie E. Lang, Esq.
Petitioners: &nbs= p; Frank Revalee, Gary Hoagland, Kimberly Snyder-Quinn; self- represented
Respondent: Philip B. McKiern= an, Esq., Joseph M. Hendel, Esq.;
&n= bsp; Hackman Hulett & Cracraft, LLP
ORDER ISSUED:
June 30, 2009
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
&=
nbsp; &nbs=
p; [2011 OEA 14, page 15 begins]
STATE OF =
INDIANA &=
nbsp; ) =
&nb=
sp; BEFORE
THE INDIANA OFFICE OF
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp; &nbs=
p; ENVIRONMENTAL
ADJUDICATION
IN THE MATTER OF: =
&nb=
sp; =
&nb=
sp; )
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
OBJECTION TO ISSUANCE OF &=
nbsp; &nbs=
p; &=
nbsp; )
CONSTRUCTION PERMIT APPLICATION FOR &=
nbsp; )
SANITARY SEWER PERMIT APPROVAL NO. 1969=
4 )
AQUA INDIANA, INC. =
&nb=
sp; =
&nb=
sp; ) &=
nbsp; &nbs=
p;
_______________________________________=
______ ) &=
nbsp; CAUSE
NO. 10-W-J-4380
Frank Revalee, Gary Hoagland, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Petitioners, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Aqua Indiana, Inc., =
&nb=
sp; =
&nb=
sp; =
)
Permittee/Respon=
dent, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Indiana Department of Environmental
Management, &n=
bsp;  =
; )
Respondent &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
=
FINDINGS OF FACT, CONCLUSIONS OF LAW and
FINAL ORDER
 =
; This matter is before the Office of
Environmental Adjudication (“OEA” or “Court”) on Fi=
nal
Hearing on Petitioners Frank Revalee and Gary Hoagland’s
(“Petitioners”) Petitions for Administrative Review of the Indi=
ana
Department of Environmental Management’s June 1, 2010 Decision of
Approval Permit No. 19694 issued to Utility Center, Inc., d/b/a Aqua Indian=
a,
Inc., for the construction of a sanitary sewer system extension in Fort Way=
ne,
Allen County, Indiana. Final
Hearing was conducted as scheduled on January 25, 2011. The Chief Environmental Law Judge
(“ELJ”) having considered the petition, record of the proceedin=
g,
and evidence, now finds that judgment may be made upon the record as to whe=
ther
Permit No. 19693 was properly issued as a final order in this cause. The ELJ, by substantial the eviden=
ce,
and being duly advised, now makes the following findings of fact and
conclusions of law and enters the following Final Order:
FINDINGS OF FACT
1.
Pe=
rmittee/Respondent,
Utility Center, Inc., d/b/a Aqua Indiana, Inc. (“Respondent” or
“Aqua”) operates a sanitary sewer system in
[2011 OEA 14, page 16 begins]
2.
The
Permit specifications authorize Aqua to install approximately 2,890 feet of
8-inch PVC pipe (SDR 35) and 361 feet of 8-inch diameter PVC (SDR 21) ASTM
D2241 (“Project”) in order to provide sanitary sewer service to=
31
single-family homes along Cadillac Drive and Dicke Road, Fort Wayne, Allen
County, Indiana (“Site”).
3.
In
addition to imposing specific and general conditions, the Permit requires t=
he
Project to conform to all provisions of 327 IAC 3.
4.
Pe=
titioners
are property owners in the
5.
In=
their
Petitions, Petitioners requested that the Permit be stayed. OEA set a stay hearing on July 22,=
2010,
continued at the parties’ request until August 31, 2010. This cause was heard at a Stay Hea=
ring
conducted on August 31, 2010.
6.
At=
the
August 31, 2010 Stay Hearing, Petitioner Revalee did not attend in person o=
r by
counsel, nor did he seek leave from attending. Petitioner Hoagland attended in pe=
rson
and represented himself. Aqua
appeared by legal counsel, Philip B. McKiernan, Esq., and its witness, Proj=
ect
manager Mr. Patrick Callahan, P.E.
IDEM appeared by legal counsel, Julie E. Lang, Esq., and by witness =
Mr.
Dale Schnaith.
7.
Th=
is
Court denied a Stay in its December 15, 2010 Findings of Fact, Conclusions =
of
Law and Order on Stay Hearing.
8.
At=
the
January 25, 2011 Final Hearing setting, Petitioner Gary Hoagland attended a=
nd
represented himself. Petition=
er
Frank Revalee did not attend in person or by counsel, nor did he seek leave
from attending.
Permittee/Respondent Aqua Indiana, Inc. attended by utility engineer=
Pat
Callaghan and by legal counsel Philip B. McKiernan, Esq. The Indiana Department of Environm=
ental
Management attended by legal counsel Julie E. Lang, Esq. At the January 25, 2011 Final Hear=
ing
setting, each of the parties stipulated to the admissibility of the Stay
Hearing transcript, Stipulated Ex. =
A,
and the Stay Hearing Exhibits, Stip=
ulated
Ex. B. Each of the parties
sought judgment in their favor, based upon the record from the Stay
Hearing. All of the below Fin=
dings
are based upon these records.
9. In his Petition, during the stay hearin=
g, in
his September 13, 2010 Closing Comments letter, and in submission of the St=
ay
Hearing transcript and exhibits at final hearing, Petitioner Hoagland prese=
nted
testimony on following issues:
a.
Th=
e home
owner cost of the proposed Project is over $20,000 per property. The Project does not include all o=
f the
total properties in the area, only 70%.
[2011 OEA 14, page 17 begins]
b.
To
support the Project, each home owner would experience a $320 per month cost
increase, placing a sizeable financial burden on the property owners.
c.
The
Project will be funded totally by the property owners, without contribution
from Aqua or the City of Ft. Wayne.
d.
A =
nearby
area east of
e.
The
proposed 8-inch sewer line (serving 31 properties) will connect to the exis=
ting
8-inch line which already services several commercial businesses located on=
f.
Mr.
Hoagland noted that local health officials were involved in the Project are=
a,
due to e. coli contamination and
runoff.
g.
In
response to circumstances presented by Aqua that one of the properties which
would be served by this Project has a septic tank which overflows sewage on=
to
the ground unless it is emptied monthly, Mr. Hoagland testified that the
properties are adequately and safely served by existing means.
h.
Mr.
Hoagland confirmed his testimony on cross examination, that he was not awar=
e of
any laws or rules that were violated by IDEM’s issuance of Permit 196=
94.
10.
Aq=
ua is
responsible to serve an area of
11.
Pr=
oject
plans incorporated into the Permit show that 31 homes[1]
will connect to the sanitary sewer plant.&=
nbsp;
The Project will connect to Aqua’s existing sanitary sewer sys=
tem
at the intersection of
12.
At=
Stay
Hearing, Mr. Hoagland cross-examined Mr. Callahan about approximately 12 lo=
ts
north and east of the Project area, which Mr. Hoagland stated might be subj=
ect
to commercial development in the future.&n=
bsp;
Due to the topography of the Project area, the facilities installed =
in the
Project area would not be able to serve the 12 lots to the north and east of
the Project area. Testimony of Patrick Callahan.
[2011 OEA 14, page 18 begins]
13.
Aq=
ua
presented information to residents on how to obtain affordable financing op=
tions
for their share of the Project costs.
14.
Mr.
Callahan presented evidence that some residents within the Project area are=
now
experiencing septic system failures.
15.
ID=
EM
presented evidence that Aqua’s Permit complies with the rules governi=
ng
issuance of sewer construction permits.&nb=
sp;
These rules do not have any provisions, requirements, or limitations
related to the financial impact to affected property owners by such
construction. See Testimony of IDEM Office of Water Quality Facility Construction=
and
Support Section Chief Dale Schnaith.
cONCLUSIONS
OF LAW
=
1.&n=
bsp;  =
; &n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
= 2.&n= bsp;  = ; &n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.5-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.
=
3.&n=
bsp;  =
; &n=
bsp;
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue. 315 IAC 1-3-10(b); Indiana Dept. of Natural Resour=
ces v.
United Refuse Co., Inc.,
615 N.E.2d 100 (Ind. 1993), Jennings Water, Inc. v. Office of Envtl.
Adjudication, 909 N.E.2d 102=
0,
1025 ( “The ELJ . . . serves as the=
trier
of fact in an administrative hearing and a de
novo review at that level is necessary. Indiana
Department of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100, 103 (Ind. 1993).<=
span
style=3D'mso-spacerun:yes'> The ELJ does not give deference to=
the
initial determination of the agency.” Indiana-Kentucky
Elec. Corp v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 820 N.E.2d
771 (
=
4.&n=
bsp;  =
; &n=
bsp;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Of=
fice
of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of OEA review =
of
NPDES permit); see also I.C. &s=
ect; 4-21.5-3-27(d). While the parties disputed whether
IDEM’s issuance of the City of
[2011 OEA 14, page 19 begins]
gener=
ally has
been described as a continuum with levels ranging from a "preponderanc=
e of
the evidence test" to a "beyond a reasonable doubt" test. The
"clear and convincing evidence" test is the intermediate standard,
although many varying descriptions may be associated with the definition of
this intermediate test.” Matter of
=
5.&n=
bsp;  =
; &n=
bsp;
To prevail on the merits of this case, Petitioner
Hoagland must show substantial evidence that the applicable regulations for
construction of sanitary sewers stated in 327 IAC 3 were not met in the Per=
mit
issued to Aqua. OEA reviews
IDEM’s decisions to determine whether IDEM acted in conformity with
controlling statutes and regulations.
See, g.g, In re: Objection to
Issuance of Section 401 Water Quality Certification COE ID No. 198800247
Conagra Soybean Processing Co.,=
1998
WL 918585, at *3, OEA Cause No. 98-W-J-2052 (Nov. 12, 1988). Allegations that fail to raise any=
issue
concerning compliance with controlling legal requirements fail to state a v=
alid
claim. In re: Objections to
Issuance of Public Water Supply Construction Permit No. WS-2924 Issued to t=
he
City of
=
6.&n=
bsp;  =
; &n=
bsp;
Mr. Hoagland’s testimony and pleadings show t=
hat Petitioners
oppose the Project based on the costs they may incur if they are required to
connect to the completed Project.
Determination of the appropriate cost is allocated to other governme=
ntal
entities, not OEA or IDEM. Ne=
ither
OEA nor IDEM may consider cost in determining whether a Project was properly
approved, in compliance with 327 IAC 3.&nb=
sp;
See In Re: Wastewater Treatment Plant and San=
itary
Sewer Construction Approval No. 16684,
= 7.&n= bsp;  = ; &n= bsp; Mr. Hoagland’s claim that the Project will not sufficiently accommodate future commercial development, and will require replacement after it is paid for the by the residents does not raise an iss= ue within IDEM or OEA’s authority for review under 327 IAC 3. OEA cannot base its decision to gr= ant a stay or to deem the Permit invalid based upon pecuniary or economic impact,= or upon speculations about possible future impact. In re: Objection to the Denial of Water Quality Certification 2005-576-RDC-A, 2007 OEA 82, 91. In this case, substantial evidence supported the opposite conclusion, that the Project will be able to accommo= date additional usage, but that commercial development anticipated by Mr. Hoagla= nd would not involve the Project facilities.&= nbsp;
[2011 OEA 14, page 20 begins]
= 8.&n= bsp;  = ; &n= bsp; Mr. Hoagland confirmed his testimony on cross examination, that he was not aware of any laws or rules that were violated = by IDEM’s issuance of Permit 19694.&nbs= p;
=
9.&n=
bsp;  =
; &n=
bsp;
Conversely, IDEM and Aqua each presented substantial
evidence that IDEM properly issued Permit Approval No. 19694. The capacity of the proposed sewer=
lines
would support projected volumes in the
FINAL ORDER
 =
; AND THE COURT, being duly advised=
, FINDS and ORDERS that Petitioners=
Frank
Revalee and Gary Hoagland did not meet their burden of showing, by substant=
ial
evidence, that Respondent/Permittee Utility Center, Inc., d/b/a Aqua Indian=
a,
Inc. met their burden of showing, by substantial evidence, that Respondent,
Indiana Department of Environmental Management properly issued Permit No. 1=
9694
to Utility Center, Inc., d/b/a Aqua Indiana, Inc., and are not entitled to
judgment. Respondents present=
ed
substantial evidence that Permit Approval No. 19694 was properly issued, an=
d are
entitled to judgment. &nbs=
p;
 =
; For
all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR=
EED
that Petitioners Frank Revalee and Gary Hoagland’s Petitions for Administrative Revie=
w of
Permit No. 19694, issued to Utility Center, Inc., d/b/a Aqua Indiana, Inc.,=
for
a sanitary sewer extension is DENI=
ED. Judgment is entered in favor of
Permittee/Respondent, Utility Center, Inc., d/b/a Aqua Indiana, Inc. and
Respondent, Indiana Department of Environmental Management. This cause is DISMISSED. All fu=
rther
proceedings are VACATED.
&=
nbsp; You
are hereby further notified that pursuant to provisions of I.C. §
4-21.5-7.5, the Office of Environmental Adjudication serves as the Ultimate
Authority in the administrative review of decisions of the Commissioner of =
the
Indiana Department of Environmental Management. This is a Final Order subject to
Judicial Review consistent with applicable provisions of I.C. § 4-21.5=
-5, et seq. Pursuant to I.C. § 4-21.5-5-5=
, a
Petition for Judicial Review of this Final Order is timely only if it is fi=
led
with a civil court of competent jurisdiction within thirty (30) days after =
the
date this notice is served.
 =
; IT
IS SO ORDERED this 27th day of January, 2011 in Indianapolis, IN=
.
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; =
Hon.
Mary L. Davidsen
Chief Environmental Law Judge
[2011 OEA 14: end of decision]
2011
OEA 14 in .doc format
2011
OEA 14 in .pdf format
Objection to Issuance of Construction Permit Application for Sanita=
ry
Sewer Permit Approval No. 19694
Aqua Indiana, Inc.
2011 OEA 14, (10-W-J-4380)