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Objectio=
n to
the Approval of Solid Waste Facility Renewal
Clifty C=
reek
Station, Restricted Waste Site Type III, FP #39-4
2010=
OEA
21, (02-S-J-2989)
[2010 OEA 21, page 21 begins]
O=
FFICIAL
SHORT CITATION NAME: When referring to 2010 OEA 21, cite thi=
s case
as &nbs=
p;
Clifty
Creek Station, 2010 OEA 21.
TOPICS=
:
summary judgment
fly ash
public water supply wells
expert
law of the case
point source discharge
seepage
fugitive dust
ground water
Lujan
Harm
PRESID=
ING
JUDGE:
Catherine Gi=
bbs
PARTY
REPRESENTATIVES=
:
IDEM: &n=
bsp; Den=
ise
A. Walker, Esq.
Petitioner: =
Jerome
Polk, Esq.; Polk & Associates, LLC
Permittee: =
Anthony
C. Sullivan, Esq., Guinn P. Doyle, Esq., David Heger, Esq.;
&=
nbsp; &nbs=
p; Barnes
& Thornburg, LLP  =
; &n=
bsp;  =
;
ORDER =
ISSUED:
March 17, 20=
10
INDEX
CATEGORY:
Land
FURTHER C=
ASE
ACTIVITY:
Judicial Review
[2010 OEA 21, page 22 begins]
STATE OF =
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MA=
TTER OF: &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) OBJECTION TO APPROVAL OF SOLID =
&nb=
sp; ) WASTE FACILITY RENEWAL =
&nb=
sp; =
) &=
nbsp; CLIFTY CR=
EEK
STATION =
&nb=
sp; =
&nb=
sp; ) &=
nbsp; CAUSE
NO. 02-S-J-2989 RESTRICTED WASTE SITE TYPE III FP# 39-4 &=
nbsp; ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER <=
/span>This
matter having come before the Court on Indiana-Kentucky Electric
Corporation’s Motion for Summary Judgment on All Remaining Issues (Wh=
ich
Relate to Possible Future Contamination of Drinking Water Supplied by Kent
Water Company and City of Madison Water Department), which pleading is a pa=
rt
of the Court’s record; and the presiding Environmental Law Judge, bei=
ng
duly advised and having read the pleadings, motions, responses, replies and
evidence, now enters the following findings of fact, conclusions of law and=
final
order: Statement of the Case 1.&n=
bsp;
On December 11, 2002, Respondent Commissioner =
of
the Indiana Department of Environmental Management (“IDEM”) iss=
ued
an order renewing Permit No. FP 39-4 (the “Permit”), which
authorizes IKEC to operate the ash disposal landfill at its Clifty Creek
Station in 2.&n=
bsp;
On December 26, 2002, Citizens Action Coalition of
Indiana, Inc. (CAC); Hoosier Environmental Council, Inc. (HEC); Save the
Valley, Inc. (STV) (“Citizens Groups”) filed a Petition for
Administrative Review (“Initial Petition”) of the approval of
renewal of Permit No. FP-39-4 for the Clifty Creek Generating Station in 3.&n=
bsp;
On February 7, 2003, Indiana-Kentucky Electric
Corporation (“IKEC”) filed its first Motion to Dismiss and brie=
f in
support alleging the Initial Petition did not meet the basic statutory or
regulatory requirements of I.C. § 13-15-6-2 and 315 IAC 1-3-2 to invoke
the jurisdiction of the OEA. 4.&n=
bsp;
As directed by the OEA in a Case Management Order
issued on February 12, 2003 and in Amended Case Management Orders issued on
March 14 and 17, 2003, Citizens Groups filed an Amended Petition for
Administrative Review (“Amended Petition”) on March 31, 2003, to
bring their petition into compliance with the specific pleading requirement=
s in
I.C. § 13-15-6-2. [2010 OEA 21, page 23 begins] =
5.&n=
bsp;
On March 3, 2003, IKEC filed a second Motion to Dis=
miss
and brief in support alleging the Initial Petition did not meet statutory
requirements to invoke the jurisdiction of the OEA because an
organization’s allegation of its members’ injury, as opposed to=
its
own, is insufficient to confer standing under controlling decisions of the
Indiana Courts. 6.&n=
bsp;
On June 23, 2003, the OEA issued its Findings of Fa=
ct,
Conclusions of Law, and Order Denying Motions to Dismiss (“OEA
Order”). In that order,=
the
OEA denied IKEC’s February 7, 2003 Motion to Dismiss, concluding that
despite Citizens Groups’ failure to meet the requirements in I.C. &se=
ct;
13-15-6-2 with their Initial Petition, Citizens Groups established subject
matter jurisdiction in their initial pleading and their Amended Petition met
the requirements of I.C. § 13-15-6-2.=
The OEA also denied IKEC’s March 3, 2003 Motion to Dismiss,
concluding that Citizens Groups had alleged facts in their Amended Petition
sufficient to confer associational standing to obtain administrative review=
of
the permit renewal under I.C. § 4-21.5-3, the Administrative Orders and
Procedures Act (“AOPA”). 7.&n=
bsp;
On July 3, 2003, IKEC sought judicial review of the
determination in the OEA Order with respect to its March 3, 2003 Motion to
Dismiss. 8.&n=
bsp;
On October 27, 2003, the Marion Superior Court
concluded that it had subject matter jurisdiction and granted IKEC a
declaratory judgment that the OEA lacked jurisdiction over this particular =
case
because Indiana did not recognize associational standing for purposes of
satisfying the “aggrieved or adversely affected” standard for
administrative review under AOPA. =
span> 9.&n=
bsp;
However, on January 11, 2005, the Court of Appeals
reversed the Marion Superior Court, deciding that Indiana recognized
associational standing for purposes of satisfying the “aggrieved or
adversely affected” standard for administrative review under AOPA and
that the OEA had jurisdiction over the particular case, thus affirming the =
OEA
Order of June 23, 2003. Se=
e Save
the Valley, Inc. v. Indiana-Kentucky Elec. Co., 820 N.E.2d 677 ( 10.&=
nbsp; On
March 31, 2005, the Court of Appeals affirmed this decision on rehearing, <=
i>see
824 N.E.2d 776 ( 11.&=
nbsp; IKEC
filed a Motion to Dismiss the Petition for Review and a Motion for Summary =
Judgment
on October 14, 2005 on the grounds that Citizens Groups are without standin=
g to
secure review of IDEM’s December 2002 renewal of IKEC’s Permit
because none of the named members of Citizens Groups have standing to chall=
enge
the Permit renewal in their own right.&nbs=
p;
IKEC also moved for summary judgment on Citizens Groups’ claim=
in
their Amended Petition that IDEM abused its discretion in renewing the Perm=
it
without first providing notice and an opportunity for public comment and
hearing. [2010 OEA 21, page 24 begins] 12.&=
nbsp; IKEC
filed a Motion to Reconsider OEA’s Order of June 23, 2003 in Light of=
New
Authority and to Dismiss the Petition for Review on November 4, 2005. 13.&=
nbsp; On
March 24, 2006, the ELJ issued Findings of Fact, Conclusions of Law and Ord=
er Denying
Motion to Reconsider and Motion to Dismiss, finding that Save the Valley was binding on this case. 14.&=
nbsp; On
March 23, 2007, the ELJ issued Findings of Fact, Conclusions of Law and Ord=
er
partially denying and partially granting IKEC’s motion for summary
judgment. The ELJ found that =
the
Citizens Groups were aggrieved and adversely affected by the issuance of the
Permit. The ELJ further found=
that
a genuine issue of fact existed as to whether ash waste constituents from t=
he
Landfill could potentially impact ground water or surface water. Summary judgment was granted in fa=
vor of
IKEC on the Citizens Groups’ allegations about fugitive dust. Further, the Court granted summary
judgment in IKEC’s favor regarding the Citizen Groups’ allegati=
ons
that IDEM had erred in failing to provide a public hearing before issuance =
of
the Permit. 15.&=
nbsp; IKEC
filed another Motion for Summary Judgment on November 2, 2007. The Court denied this motion on Ma=
rch
26, 2008 finding that, while IKEC was in compliance with its permit, that t=
he
IDEM had the authority to modify the permit at the time of its renewal. 16.&=
nbsp; IKEC
then filed a Motion for Partial Summary Judgment on Surface Water Issues on=
May
7, 2007. On October 6, 2008, =
the
Court granted the motion for summary judgment finding that no issue of mate=
rial
fact existed regarding the Citizens Groups’ allegations about the
contamination of surface water.
This included determinations that NPDES-permitted discharges and min=
or
seepage from the Landfill are lawful and non-injurious. 17.&=
nbsp; IKEC
filed Indiana Kentucky Electric Corporation’s Motion for Partial Summ=
ary
Judgment on All Issues Relating to Water Supplied by the City of Madison Wa=
ter
Department on August 31, 2007. 18.&=
nbsp; On
November 8, 2007, IKEC filed a Motion for Partial Summary Judgment on Kent
Water Company Issues. On Marc=
h 6,
2009, the Court denied IKEC’s motion on the grounds that the Citizens
Groups had presented sufficient evidence to create an issue of fact as to
whether Kent Water Company well fields may be affected by contamination
migrating from the Landfill. 19.&=
nbsp; On
September 26, 2006, IKEC filed Indiana-Kentucky Electric Corporation’s
Motion to Reconsider This Court’s Order of March 24, 2006 In Light of=
New
Authority and to Correct Oversights.
On April 22, 2008, IKEC filed Indiana-Kentucky Electric Corporation's
Motion to Reconsider this Court's Order of March 26, 2008. On August 28, 2008, the Court deni=
ed the
Motions for Reconsideration. =
[2010 OEA 21, page 25 begins] 20.&=
nbsp; On
April 15, 2008, the IDEM renewed the Permit at issue in this case. The renewal included approval of m=
ajor
modifications of the Landfill. 21.&=
nbsp; On
May 8, 2008, the Citizen Groups filed their Petition for Review. This cause was assigned Cause Numb=
er
08-S-J-4106. 22.&=
nbsp; On
February 19, 2009, the IDEM filed its Motion to Dismiss as Moot or
Consolidate. The Court denied=
the
motion to dismiss, but granted the motion to consolidate this cause with Ca=
use
No. 08-S-J-4106 on June 5, 2009. 23.&=
nbsp; On
August 24, 2009, the Court granted IKEC’s Motion for Partial Summary
Judgment on All Issues Relating to Water Supplied by the City of Madison Wa=
ter
Department. 24.&=
nbsp; On
May 6, 2009, IKEC filed this Motion for Summary Judgment on All Remaining
Issues (Which Relate to Possible Future Contamination of Drinking Water
Supplied by Kent Water Company and City of Madison Water Department). On June 8, 2009, IKEC filed its Fi=
ling
of Supplemental Affidavits in Support of Its Motion for Summary Judgment an=
d Supplemental
Designation of Evidence. 25.&=
nbsp; The
Response of Save the Valley, Hoosier Environmental Council and Citizens Act=
ion
Coalition of Indiana in Opposition to Indiana-Kentucky Electric Corporation=
's
Motion for Summary Judgment on All Remaining Issues; Citizens Groups Statem=
ent
of Material Facts in Genuine Dispute; and Designation of Evidentiary Materi=
al
Relied Upon were filed on June 8, 2009. 26.&=
nbsp; Indiana-Kentucky
Electric Corporation's Response to Citizens Groups' Statement of Material F=
acts
in Genuine Dispute; Indiana-Kentucky Electric Corporation's Second Suppleme=
ntal
Designation of Evidence; and Reply Brief in Support of Indiana-Kentucky
Electric Corporation's Motion for Summary Judgment on All Remaining Issues
(Which Relate to Possible Future Contamination of Drinking Water Supplied by
Kent Water Company and City of Madison Water Department) were filed on June=
19,
2009. 27.&=
nbsp; IKEC
filed its Citation of Additional Authority on July 23, 2009. Order Separating Consolidated Case=
s 1.&n=
bsp;
On June 5, 2009, the Court granted the IDEM’s=
Motion
to Consolidate this cause with Cause No. 09-S-J-4106. 2.&n=
bsp;
The Motion in question in this Order[1] was filed on May 6, 2009. The response was filed June 8,
2009. The reply was then file=
d on
June 19, 2009. [2010 OEA 21, page 26 begins] 3.&n=
bsp;
Neither the response nor reply addressed the 2008
permit renewal or any differences in facts or law that this renewal raised.=
4.&n=
bsp;
Further, IKEC filed a separate Motion for Summary
Judgment on May 19, 2009 and a Motion to Dismiss on November 19, 2009 in Ca=
use
No. 08-S-J-4106. 5.&n=
bsp;
The Court, =
sua
sponte, determines that the causes should be separated and so ORDERS. Findings of Fact <=
span
style=3D'mso-list:Ignore'>1.&n=
bsp;
Clifty Creek Station is a six-boiler, 1304-megawatt=
coal-fired
electric generating station located at the edge of <=
span
style=3D'mso-list:Ignore'>2.&n=
bsp;
On December 11, 2002, Respondent Commissioner =
of
the Indiana Department of Environmental Management (“IDEM”) iss=
ued
an order renewing Permit No. FP 39-4 (the “Permit”), which
authorizes IKEC to operate the ash disposal landfill at its Clifty Creek
Station in <=
span
style=3D'mso-list:Ignore'>3.&n=
bsp;
On December 26, 2002, Citizens Action Coalitio=
n of
Indiana, Inc. (CAC); Hoosier Environmental Council, Inc. (HEC); Save the
Valley, Inc. (STV) (“Citizens Groups”) filed their Petition for
Review, which was amended on March 31, 2003, by leave of OEA. <=
span
style=3D'mso-list:Ignore'>4.&n=
bsp;
The Amended Petition identified the following as
persons aggrieved by the Permit:
Henry and Marie VanLeeuwen were members of STV and CAC (Mrs. VanLeeu=
wen
died in 2008); J. Dan Webster was a member of STV and HEC; Juanita Webster =
was
a member of STV; Ralph Seifert was a member of CAC; Marc Gray was a member =
of
STV. The Amended Petition nam=
es two
other members, Marjorie Modisett and Candace Gray. However, Petitioners withdrew
representation of Dr. Modisett (IKEC Exh. 22) and Mrs. Gray (IKEC Exh. 23) =
in
October 2003. Mr. VanLeeuwen,=
the
Websters, and Messrs. Seifert and Gray are herein referred to as the
“Members.” <=
span
style=3D'mso-list:Ignore'>5.&n=
bsp;
Citizens Groups have alleged that the Landfill is t=
he
source of groundwater contamination, which threatens the Members’ wat=
er
supply. [2010 OEA 21, page 27 begins] <=
span
style=3D'mso-list:Ignore'>6.&n=
bsp;
Except fo=
r Mr.
Gray, all Members are residents of the Town of <=
span
style=3D'mso-list:Ignore'>7.&n=
bsp;
KWC obtains its water supply from two (2) well
fields: the former Hanover Co=
llege
Well Field and the Kent Well Field.
The supply wells are completed in alluvial deposits along the <=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
The United States Geological Survey website gives a=
n <=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
The City of <=
span
style=3D'mso-list:Ignore'>10.&=
nbsp; These
facts leave underground pathways between the Landfill and the respective KWC
and Madison well fields as the only routes by which the Landfill could
contaminate the public water supply wells.=
No such pathway is described in the Designated Evidence. Mr. King’s Affidavit at Exh. 34 attests to the truth and accuracy of AGES =
2006
(IKEC Exh. 32) to his personal knowledge.&=
nbsp;
As indicated above, between 1955 and 1991 ash was sluiced into the a=
rea,
creating an unregulated ash pond of 150 acres or so, AGES 2006
§ 2.1. The area was
drained, except for the Landfill Collection and Treatment Pond, and dry land
filling began in 1991. Land f=
illing
of low sulfur coal ash began in 1995 and has continued to date. [2010 OEA 2=
1, page 28
begins] <=
span
style=3D'mso-list:Ignore'>11.&=
nbsp; Starting
at the top of the landfilled area (without regard to the engineered, vegeta=
ted
landfill cap installed or to be installed when the fill reaches its permitt=
ed
elevation), the sequence of layers is as follows: · =
Low sulfur coal ash layers with cement-like
characteristics and hydraulic conductivity of 10-7 cm/sec. · =
Eight feet of boiler slag that isolates the
overlying low sulfur coal ash from the groundwater table. · =
An average of 30 feet of previously sluiced =
fly
ash with hydraulic conductivity of 4.9 x 10-4 to 6.9 x 10-3=
cm/sec. · =
Twenty to 40 feet of gray clay with hydraulic
conductivity of 10-4 to 10-3 cm/sec. · =
Limestone bedrock of the Dillsboro Formation
with conductivity of 10-7 to 1.22 x 10-5 cm/sec (simi=
lar
to the conductivity of the low sulfur coal ash). =
12. Outsi=
de the
Landfill, the high bedrock ridge of the Devil’s Backbone borders the =
site
on the southeast running between the Landfill and the 13.&=
nbsp; At
the southwest end of the site, between the Dam and the Devil’s Backbo=
ne,
on one hand, and the 14.&=
nbsp; Thus,
the bedrock topography, the slope of the bedrock from west to east and nort=
h to
south toward the Ohio River channel, and the relative hydraulic conductivit=
y of
the various strata all act to channel groundwater in the area toward the Oh=
io
River and preclude any groundwater movement along the north side of the riv=
er
from Clifty Creek Station toward the KWC wells. [2010 OEA 21, page 29 begins] 15.&=
nbsp; All
of this is undisputed by any Designated Evidence, and so it must be deemed =
to
be true. Webb v. Jarvis, 575 N.E.2d 992, 994 ( 16.&=
nbsp; Absence
of evidence cannot bring into doubt the veracity of evidence that is
adduced. Mr. Norris’ Au=
gust
2006 Supplement to his Second Statement (supplementing Groups’ Exh. 2=
0)
changed his earlier testimony (which was based on his failure to discern or
mention the subsurface bedrock formation and the steep bedrock wall to the
west) and admitted the presence of the wall (¶ 10 next-to-last
sentence) and acknowledged that all the water goes into or under the Ohio
River’s main channel. <=
span
style=3D'mso-list:Ignore'>17.&=
nbsp; The
Final Order of October 6, 2008, herein assumed that all the groundwater
seepage from the site (not just the 2.8 gpm of seepage from the southwest a=
rea,
AGES 2006, § 7.2.3) went to the Ohio River (meaning none went
upstream to the <=
span
style=3D'mso-list:Ignore'>18.&=
nbsp; It
is undisputed that no Member has yet suffered any harm after 55 years of ash
disposal at the site. Each of=
the
Members served by KWC denied in deposition testimony that the Landfill has =
ever
harmed him or her. IKEC Exhs. 11 (pp. 14-15), 13 (pp. 8, =
10,
& 19); 15 (p. 7); 16 (pp. 10-11, 13). These Members range in age from 91=
or 92
(Mr. Webster) to 66 or 67 (Mr. Seifert).&n=
bsp;
IKEC Exhs. 11 (p. 5), 13 (p.=
4),
and 15 (p. 5). Each has l=
ived
within a few houses in the same neighborhood and been served by KWC or its
predecessor utility for between 39 or 40 years (Mr. Seifert, Dep. at Exh. 1=
3,
p. 4) and 60 or 61 years (Websters’, Exh. 16, p. 4). Henry
VanLeeuwen Dep., Exh. 11, p. 5. <=
span
style=3D'mso-list:Ignore'>19.&=
nbsp; Disposal
under the Permit Renewal began in December 2002. It is undisputed that travel time =
for
ash constituents from the area presently being landfilled with low sulfur c=
oal
ash to the southwest end of the site, where some constituents may escape
through seepage, is about 64.5 years.
Third King Affidavit (IK=
EC
Exh. 49). <=
span
style=3D'mso-list:Ignore'>20.&=
nbsp; The
water supplied by both KWC and the City of [2010 OEA 2=
1, page 30
begins] <=
span
style=3D'mso-list:Ignore'>21.&=
nbsp; Citizens
Groups admit that they cannot state any facts to substantiate the claim that
the Landfill poses a risk of harm to any Member in the immediate future, th=
at
there is a “plume” of ash constituents, that it threatens harm =
to
any Member, that it is contributed to by IKEC’s ash disposal under th=
e Permit,
or that there is any prospect of IKEC’s violating 327 IAC
§ 2-11-2 in the immediate future. <=
span
style=3D'mso-list:Ignore'>22.&=
nbsp; No
Designated Evidence (as distinguished from briefs and statements of issues)
says or otherwise shows that any public water supply well is endangered by =
any
“plume” of contamination or that any such plume exists. <=
span
style=3D'mso-list:Ignore'>23.&=
nbsp; No
Designated Evidence shows that any Citizens Group or any Member has been ha=
rmed
by operation of the Clifty Creek Station Landfill or by IDEM’s issuan=
ce
of the 2002 Permit renewal order. =
span>No
Designated Evidence shows that any Citizens Group or any Member was on
December 26, 2002, when the Petition was filed, in danger of suffering
harm as a result of IKEC’s operation of the Clifty Creek Station Land=
fill
or IDEM’s issuance of the Permit.&nb=
sp;
Conclusions of Law =
1. The
Office of Environmental Adjudication (“OEA”) has jurisdiction o=
ver
the decisions of the Commissioner of the IDEM and the parties to the
controversy pursuant to I.C. § 4-21.5-7-3. =
2. 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. This
Court must apply a de novo standard of review to this proceeding when
determining the facts at issue. all issues=
are
to be determined anew, based solely upon the evidence adduced at that heari=
ng
and independent of any previous findings. Grisell
v. =
4. The
OEA may enter judgment for a party if it finds that “the pleadings,
depositions, answers to interrogatories, and admissions on file, together w=
ith
the affidavits and testimony, if any, show that a genuine issue as to any
material fact does not exist and that the moving party is entitled to judgm=
ent
as a matter of law.” [2010 OEA 21, page 31 begins] =
5. The
Petitioners allege that IDEM’s review was deficient in that it failed=
to
recognize and provide for the possibility of migration of other constituent=
s in
the fly ash other than those constituents that IKEC must test for. =
6.&n=
bsp;
Applicable statues and rules prohibit IKEC from
operating the Landfill in a way that would contaminate the public water sup=
ply
wells so as to injure the Members.
In particular, the rule of the Indiana Water Pollution Control Board=
at
327 IAC § 2-11-2 provides in pertinent part the following: &=
nbsp; *
* * (e) =
No
person shall cause the ground water in a drinking water supply well to have=
a
contaminant concentration that creates one (1) or more of the following: (1) An exceedance of the numeric criteria
established for drinking water class ground water in Tables [section] 6(a)(1) and (6)(a)(2) of=
this
rule. (2) A level sufficient to be acutely or
chronically toxic, carcinogenic, mutagenic, teratogenic, or otherwise injur=
ious
to human health based on best scientific information. (3) An exceedance of one (1) or more of the
following indicator levels: (A)&=
nbsp; Chloride
at two hundred fifty (250) milligrams per liter. (B)&=
nbsp;
Sulfate at two hundred fifty (250) milligrams per
liter. (C)&=
nbsp; Total
dissolved solids at five hundred (500) milligrams per liter. (D)&=
nbsp; Total
coliform bacteria at nondetect. (4) Renders
the well unusable for normal domestic use. (f)&=
nbsp;
No person shall cause the ground water in a nondrin=
king
water supply well, including an industrial, commercial, or agricultural sup=
ply
well, to have a contaminant concentration that, based on best scientific
information renders the well unusable for its current use. (g)&=
nbsp;
The criteria established in subsections (e) and (f)=
are
immediately enforceable on the effective date of this rule under IC 13-30 to
protect ground water quality in water supply wells. &=
nbsp; 327 IAC § 2-11-2(e)-(g). =
7. Any
migration of ash constituents from the Landfill having the injurious effects
predicted by Groups would violate 327 IAC § 2-11-2, and therefore=
I.C. § 13-30-2(1) and -=
(3). =
8. Citizens
Groups’ claim of aggrievement―or claim that the Members would h=
ave
standing to sue in their own right―thus amounts to the allegation that
IKEC will in the indefinite future violate 327 IAC § 2-11-2. Such a claim is barred by a long l=
ine of
OEA decisions exemplified by the following: [2010 OEA 21, page 32 begins] IDEM must presume that any pers=
on
that receives a permit will comply with the applicable regulations. The OEA will not overturn an IDEM
approval upon speculation that the regulated entity will not operate in
accordance with the law. In the Matter of: 327 Article 3 Construction Permit
Application Plans and Specifications for Sidney Wastewater Treatment Plant =
and
Sanitary Sewer System Permit Approval No. 16684, 2004 IN. ENV. LEXIS 22=
( =
9.&n=
bsp;
Law of the=
Case. In addition, OEA’s Final Ord=
er of
October 6, 2008, in this case stated the following: Conclusions =
of
Law Relating to Point Source Discharges * * While the above stated reason is sufficient in itse=
lf
to preclude review of the Citizens Groups’ contentions that the point
source discharges are a source of contamination to surface water, it is also
true that the OEA will not overturn an IDEM approval upon speculation that =
the
regulated entity will not operate in accordance with the law. In
the Matter of: 327 Article 3 Construction Permit Application Plans and
Specifications for Sidney Wastewater Treatment Plant and Sanitary Sewer Sys=
tem
Permit Approval No. 16684, 2004 In. Env. Lexis 22 ( Therefore, to the extent that the Citizens Groups
contend that the point source discharges contribute contamination to the [2010 OEA 2=
1, page 33
begins] Conclusions =
of
Law Relating to Seepage * * As noted above in Conclusion of=
Law
paragraph #8, the OEA will not overturn a permit on allegations that the
permittee will violate its permit.
To the extent that the Citizens Groups’ allege that the Permit=
was
issued illegally because seepage from the Landfill would violate the WQS, t=
he
ELJ concludes that no genuine issue exists and summary judgment is appropri=
ate. Similarly, OEA’s O=
rder of
March 23, 2007, in this case states: Conclusions =
of
Law Relating to Fugitive Dust * * Petitioners’ allegations of impacts
“likely” to occur are based solely upon speculation that IKEC m=
ay
at some point in the future violate the law by generating fugitive dust bey=
ond
its property boundaries in excess of the amounts allowed by 326 IAC 6-4 and=
the
terms of the Permit. Such
allegations may constitute potential enforcement issues, but are not issues
properly before OEA in this proceeding.&nb=
sp;
OEA may not overturn an IDEM approval upon speculation that the
regulated entity will not operate in accordance with the law. In
the Matter of: Objection to the Issuance of Approval No. AW 5404, Mr. Steph=
en
Gettelfinger, There is no genuine issue as to=
any
material fact. Summary judgme=
nt is
granted in favor of IKEC. =
10.&=
nbsp; IKEC
has requested summary judgment and set out a prima facie case that Citizens Groups’ Members are not ha=
rmed
by drinking or using the water supplied by KWC or the City of [2010 OEA 21, page 34 begins] 11.&=
nbsp; Nor
have Groups raised a genuine issue of material fact sufficient to overcome =
the
presumption (called for by the OEA cases above) that IKEC will continue to
comply with 327 IAC § 2-11-2 and applicable statutes. The Findings of Fact above establi=
sh
that ash has been disposed of at the now-permitted site for 55 years without
incident or harm to any Member.
Citizens Groups’ expert, Mr. Norris, asserts that it is possib=
le
that an unspecified amount of ash constituents from the site (not specifica=
lly
as a result of activities under the 2002 Permit Renewal) may reach the publ=
ic
water supply wells at an unspecified time in the future by an unspecified r=
oute
in an unspecified concentration with an unspecified result. Citizens Groups then rely on these
assertions as evidence that their Members are aggrieved “by the
order.” I.C. § 4-21.5-3-7(a). 12.&=
nbsp; The
Court cannot “presume” the missing facts. See
Lujan v. National Wildlife Federati=
on,
497 13. An expert’s opinion that somethin=
g is
“possible” or “could have been” is insufficient by
itself to support a material factual question. R.E.G.
v. L.M.G. (1991), Ind. App. 571 N.E.2d 298, 303. Testimony based on conjecture or
speculation is insufficient to support a claim. <=
span
style=3D'mso-list:Ignore'>14.&=
nbsp; The
long string of OEA cases cited above forbid any such speculation and impose=
a
presumption that IKEC will comply with 327 IAC § 2-11-2 and I.C. § 13-30-2-1. That rule forbids conduct that ren=
ders
public water wells injurious. It
does not require that a person conduct its affairs in such a way that a
determined adversary cannot create a speculative scenario showing that the =
rule
could possibly be violated in the indeterminate future. IKEC cannot lawfully be held to an=
y such
standard. If it were not poss=
ible
for the standards of 327 IAC § 2-11-2(e) to be violated, there wo=
uld
be no need for the prohibition in the rule. <=
span
style=3D'mso-list:Ignore'>15.&=
nbsp; There
is no genuine issue as to any material fact. Summary judgment is appropriate.=
p>
[2010 OEA 21, page 35 begins] FINAL ORDER AND
THE COURT, being duly advised, hereby ORDERS, ADJUDGES AND DECREES that
Indiana-Kentucky Electric Corporation has met its burden of proof by
substantial evidence in this matter.
IKEC’s Motion for Summary Judgment on All Remaining Issues is
GRANTED. 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.&nb=
sp;
This is a Final Order subject to Judicial Review consistent with
applicable provisions of I.C.
§ 4-21.5. Pursuant =
to I.C. § 4-21.5-5-5, a Pe=
tition
for Judicial Review of this Final Order is timely only if it is filed with a
civil court of competent jurisdiction within thirty (30) days after the date
this notice is served. This o=
rder
disposes of this proceeding.  =
; IT IS SO ORDERED in &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Hon.
Catherine Gibbs Environ=
mental
Law Judge [2010 OEA 21: end of decision] 2010
OEA 21 in .doc format 2010
OEA 21 in .pdf format “De novo review”
means that:I.C. § 4-21.5-=
3-23. The moving party bears the burden =
of
establishing that summary judgment is appropriate. All facts and inferences must be
construed in favor of the non-movant.
Gibson v. *Ohio River and that this contamination is the basis=
for
their assertion that the Permit was issued illegally, there is no genuine i=
ssue
as to any material fact and summary judgment on this issue is appropriate.<=
/p>
* * That is insufficient.
[1]
Motion for Summary Judgment on All Remaining Issues (Which Relate to Possib=
le
Future Contamination of Drinking Water Supplied by Kent Water Company and C=
ity
of
Objectio=
n to
the Approval of Solid Waste Facility Renewal
Clifty C=
reek
Station, Restricted Waste Site Type III, FP #39-4
2010=
OEA
21, (02-S-J-2989)