TOPICS:

PRESIDING JUDGE:

Mary L. Davidsen

PARTY REPRESENTATIVES:

IDEM: = ; Sierra L. Alberts, Esq.

Petitioners: &nbs= p; Woodrow Smith, pro se; (Elson’s Land Corp., LLC); Timothy L. Elson &

&nbs= p; &= nbsp; Nicholas K. Kile, Esq.; Barnes & Thornburg LLP

Permittee: = Donald J. Tribbett, Esq.; Tribbett Law Office

&n= bsp; L. Dowal Dellinger, Esq.; Dellinger, Dellinger & Smith

ORDER ISSUED:

April 18, 2011

INDEX CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

[2011 OEA 58, page 59 begins]

STATE OF INDIANA &= nbsp; ) &= nbsp; &nbs= p; BEFORE THE INDIANA OFFICE

) = &nb= sp; OF ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION<= /st1:PlaceName> )

IN THE MATTE= R OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp;

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

OBJECTION TO THE ISSUANCE OF CONSTRUCTION = )

APPLICATION FOR WASTEWATER COLLECTION &= nbsp; )

PERMIT APPROVAL NO. 19800 &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp;

BIG MONON BAY WASTEWATER TREA= TMENT PLANT &n= bsp; )

MONTICELLO, WHITE COUNTY, INDIANA= &= nbsp; &nbs= p; ) &= nbsp;

_____________________________________________________ ) CAUSE NO. 10-W-J-4438<= /span>

Elson’s Land Corp., LLC, = ; &n= bsp; = ; &n= bsp; = ; &n= bsp; )

Petitioner, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

Twin Lakes Regional Sewer District,= &nb= sp; = &nb= sp; = )

Permittee/Respondent, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

Indiana Department of Environmental Management, = &nb= sp; )

Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = )

FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER

= ; This matter came before the Office of Environmental Adjudication (“OEAR= 21; or “Court”) on dispositive motions as to whether Woodrow Smith’s filings with the Court were a timely or sufficient petition f= or administrative review of Indiana Department of Environmental Management per= mit 19800 issued to Twin Lakes Regional Sewer District

= ; The Chief Environmental Law Judge (“ELJ”), having considered the petitions, evidence, and pleadings of the parties, now finds that judgment = may be made upon the record. The = Chief ELJ, by substantial evidence, and being duly advised, now makes the followi= ng findings of fact and conclusions of law and enters the following Final Order:

&n= bsp;

Findings of Fact

1.&n= bsp; On November 10, 2010, the Indiana Department of Environmental Management (“IDEM”) issued Permit Approval No. 19800 (“Permit”= ) to the Twin Lakes Regional Sewer District (“Permittee”) for construction of a wastewater collection system near the Tippecanoe River near Buffalo, White County, Indiana. The Permit also authorized the Per= mittee’s wastewater treatment plant to be upgraded and expanded.

&n= bsp;

2.&n= bsp; On November 30, 2010, Elson’s Land Corp., LLC (“Petitioner” = or “Elson”), by Manager Timothy L. Elson, filed a Petition for Administrative Review and request for Stay of the Permit.

[2011 OEA 58, page 60 begins]

3.&n= bsp; On December 10, 2010, the Court issued an Order Scheduling Prehearing Conferen= ce (for January 3, 2011, 1:00 PM, E.S.T.) and Stay Hearing (January 20, 2011, = 9:00 AM, E.S.T.).

4. After issuing the December 10, 2010 Order, the Court received a letter from Woodr= ow Smith, postmarked and dated December 9, 2010.[1] Woodrow Smith’s December 9, = 2010 letter stated, =

This information I received 12-1-10 means nothing (letter dated 11-= 10-10). What Twin Lakes Regional Sewer Dis= trict is trying to do is a bunch of crap. What kind of pay-off is your department receiving from Twin Lakes?

Why is the runoff from the farmers up the Tippecanoe River not being controlled? There h= as not been one septic system tested. This is a joke and needs to be stopped.

Don’t you people realize that we are still in a recession and= the cost passed on to the residents is out of line and cannot be afforded by a = lot of the residents?

Woodrow Smith’s December 9, 2010 letter included a copy of the first page of the seven-page permit approval letter sent from IDEM to the Permittee, which letter references the Permittee’s name, address, and= the Permit number. Woodrow Smith’s December 9, 2010 letter contained no information indicating it was sent to anyone other than the Court.

&n= bsp;

5. On December 16, 2010, the Court issued a Notice of Incomplete Filing and Order to Supplement Petition (“Order = to Supplement”), addressed to all parties and to Woodrow Smith[2], referencing Woodrow Smith’s December 9, 2010 letter. Although the remainder of the Dece= mber 16, 2010 Order to Supplement erroneously referred to Mr. Wilson, the Order = to Supplement advised,

This matter is set for Prehearing Conference on the Petition for Administrative Review filed by Petitioner Elson Land Corp., LLC, to be held= on January 3, 2011, 1:00 PM, EST at = the Office of Environmental Adjudication, 100 North Senate Avenue, Room N501, Indiana Govern= ment Center North, Indianapolis, Indiana. Should Petitioner Wilson (sic) des= ire to participate in the January 3, 2011, 1:00 PM, EST Prehearing Conference, then the below-listed information must be filed by December 27, 2010.

Petitioner Wilson (sic) is ORDERED to file the following information within thirty (30) days of the date this order was issued.

[2011 OEA 58, page 61 begins]

The Order to Supplement specified the following information to be supplied:

- Pe= titioner must attach a complete copy of the . . . IDEM action to which the Petitioner objects. Petitioner Wilson (sic) may = elect to notify the Court and other parties that he is relying on the copy of the ID= EM action filed with Elson Land Corp.’s petition.

- The Petitioner must state how s/he is aggrieved or adversely affected by IDEM’s action.

- A = copy of the Petition must be sent to all parties, including the IDEM and the Permittee.

- The Petitioner must provide his/her complete address and telephone number.

- The Petitioner must identify which portions of the permit to which s/he is objecting.

The Order to Supplement further provided,

If the Petitioner fails to provide the requested information, his Petition will be dismissed and closed.&nbs= p; A party must file all documents and pleadings with this office and a= ll parties identified on the distribution list. Failure to do so may result in the= judge not considering your document or pleading.

6.&n= bsp; On December 27, 2010, the Court received a letter from Woodrow Smith, with an illegible envelope postmark date, but with a letter date of December 21, 2010. The letter stated, R= 20;How is Mr. Wilson????” Wood= row Smith’s December 27, 2010 letter contained no information indicating = that it was sent to anyone other than the Court.

7.&n= bsp; On December 27, 2010, the Court issued a Corrected Notice of Incomplete Filing= and Order to Supplement Petition, noting that the Court inferred that Mr. Smith’s December 27, 2010 letter was meant to point out that the Court had erred in referring to Mr. Smith as Wilson. The Court ordered that references = to Wilson were in er= ror and should refer to Woodrow Smith. The Court further provided that it had misunderstood the meaning of Woodrow Smith’s December 27, 2010 letter, the Court had no informatio= n as to “how” Mr. Wilson was. The Court repeated the terms of the December 16 Order to Supplement = in its December 27 Corrected Notice of Incomplete Filing and Order to Suppleme= nt Petition.

8.&n= bsp; On December 28, 2010, Permittee, by legal counsel, filed a Motion for Summary Judgment challenging Petitioner Elson’s Petition for Administrative Review. The Motion for Summary Judgment was served on all parties and on Woodrow Smith.

&n= bsp;

[2011 OEA 58, page 62 begins]

9.&n= bsp; On January 3, 2011, 1:00 PM, EST, a Prehearing Conference was held, and attend= ed by legal counsel Nicholas K. Kile, Esq. for Petitioner Elson, by legal coun= sel Donald J. Tribbett, Esq. for Permittee Twin Lakes, and by legal counsel Sierra L. Alberts, Esq. for IDEM. As noted in the Court’s Janu= ary 4, 2011 Report of Prehearing Conference, Order Continuing Stay Hearing, and Ca= se Management Order, “Mr. Smith did not attend nor did he contact the Co= urt seeking leave from attending.”

10.&= nbsp; At the Prehearing Conference, the atten= ding parties had an opportunity to inspect Woodrow Smith’s December 9, 2010 letter. IDEM’s counsel = orally moved to dismiss Woodrow Smith’s correspondence as an untimely petition. The Court’s J= anuary 4, 2011 Order set a schedule for response to the Permittee’s Motion f= or Summary Judgment.

11. The Court received a letter from Woodrow Smith, postmarked and dated January 4, 2011. Woodrow Smith’s J= anuary 4, 2011 letter stated,

Page 7 of Permit Approval 19800

1.&n= bsp; (W= oodrow Smith’s Monticello, IN address, phone number and email address)

2.&n= bsp; Ho= meowner

3.&n= bsp; Wo= odrow E. Smith

4.&n= bsp; Th= ese homes have poorly functioning septic systems. Not one of these systems has been = tested per the White County Health Department.&nb= sp; If they have on one seems to have any records.

5.&n= bsp; Th= ese hearings need to be in the when residents can attend.

6.&n= bsp; Re= ad #4.

7. Letter Dated 12-27-2010.

As Woodrow Smith’s January 4, 2011 letter listed, attached to= the letter was a copy of page 7 of 7 of Permit Approval. Page 7 stated Appeals Procedures f= or filing with the OEA. Woodrow Smith’s January 4, 2011 letter contained= no information indicating that it was sent to anyone other than the Court.

&n= bsp;

12. The Court received a letter from Woodrow Smith, postmarked January 4, 2011, letter dated January 3, 2011. Attached to Woodrow Smith’s January 4, 2011 letter was a copy of the Court’s corrected Order to Supplement, with the second page containing handwritten circled numbers, corresponding to the numbers on the items stated in Woodrow Smith’s letter. Woodrow Smith&#= 8217;s January 4, 2011 letter stated,

Here is= a copy of the letter dated December 27, 2010, that I received January 3, 2011. And the answers to your letter.

1.&n= bsp; Page 2-top of page-poorly functioni= ng septic systems (Permit # 19800). The septic systems have not been tested. If they have no one can find the records.

(a handwritten number 1 was written on a copy of the Court’s corrected Order to Supplement, which stated “Petitioner must attach a complete copy of the . . . IDEM action to which the Petitioner objects. Petitioner Woodrow Smith may =

[2011 OEA 58, page 63 begins]

elect to notify the Court and other parties that he is relying on the copy of the ID= EM action filed with Elson Land Corp.’s petition.”)

2.&n= bsp; Do= n’t have the income to justify cost of something that is not needed or proven t= hat it is needed.

(a handwritten number 2 was written on a copy of the Court’s corrected O= rder to Supplement, which stated, “The Petitioner must state how s/he is aggrieved or adversely affected by IDEM’s action.”)<= /span>

3.&n= bsp; Yo= u send the copies. Why should I pay?=

(a handwritten number 3 was written on a copy of the Court’s corrected O= rder to Supplement, which stated, “A copy of the Petition must be sent to = all parties, including the IDEM and the permittee.”

4.&n= bsp; (M= r. Smith’s Monticello, IN address, phone number and email address)

(a handwritten number 4 was written on a copy of the Court’s corrected O= rder to Supplement, which stated, “The Petitioner must provide his/her complete address and telephone number.”)

5.&n= bsp; Se= e top of page 2, poorly functioning septic systems. Not proven. Permit Approval #: 19800.

(a handwritten number 5 was written on a copy of the Court’s corrected Order to Supplement, which stated, “The Petitioner must identify which portions of the permit to which s/he is objecting.”)

Page 2 of 7 of the Permit, “Water Pollution Treatment/Control Facility Description” was also included. Mr. Smith’s January 4, 2011 = letter contained no information indicating that it was sent to anyone other than t= he Court.

13.&= nbsp; On January 13, 2011, the Court issued an Order Placing Woodrow E. Smith’s January 4, 2011 Letters on Record and Order to Parties to Serve Documents Submitted to the Court to all Parties, = per I.C. § 4-21.5-3-11(e) and 315 IAC 1-3-3(b)(4) (both quoted in the Order). In a footnote to the = fact that Woodrow Smith was not represented by legal counsel, the Order provided, “While a party may decide to proceed without legal representation, “[i]t is well established that pro se litigants are held to the same standard as are licensed lawyers. Goosens v. Goosens, 829 N.E.2d 36,= 43 (Ind. Ct. App. 2005).

14.&= nbsp; On January 18, 2011, Permittee filed a = Motion to Dismiss Woodrow Smith’s Petition for Administrative Review. The Motion to Dismiss contended th= at Woodrow Smith’s petition for review was subject to dismissal as untim= ely filed, and as insufficient. I= n its Motion to Dismiss , Permittee’s counsel avers that IDEM served the permit on Woodrow Smith. A copy of the = Permit in the Court’s record attached to Elson’s Petition for Administrative Review lists some of those to whom the Permit was sent, and further provides that “Approximately 888 carbon copies of this letter were sent to residents and businesses in the project area. A complete list of cc: recipients = are available at (a mailing address for IDEM).”

[2011 OEA 58, page 64 begins]

&n= bsp;

Woodrow Smith was not listed on the documents presented to the Cour= t.

15. The Court’s January 20, 2011 Case Management Order Concerning Permittee/Respondent’s Motion to Dismiss Woodrow Smith’s Petition for Administrative Review scheduled due date= s of February 18, 2011 for Responses, March 4, 2011 for Replies. The Order provided until March 11,= 2011, if parties elected to file proposed findings of fact, conclusions of law and orders. The January 20, 2011 = Order further provided,

A party who fails to comply with this Court’s orders or who f= ails to participate in any stage of this proceeding may be held in default or may have the proceedings dismissed.

16. The Court received a letter from Woodrow Smith, postmarked and dated January 21, 2011. Mr. Smith’s January 21, 2011 letter stated,

Copies = of been sent to everyone on this sheet. Wish my postage was only 35.7 cents per letter. I like the way your office puts co= des in the letters, which only a lawyer would understand. I guess you’re not in your position to service the people, just big business.

Attached to Woodrow Smith’s January 21, 2011 letter was a cop= y of Page 2 of 7 of the Permit, “Water Pollution Treatment/Control Facility Description”. Woodrow S= mith also included the Court’s corrected Order to Supplement, with the sec= ond page containing handwritten circled numbers, corresponding to the numbers on the items stated in Woodrow Smith’s January 4, 2011 letter. A copy of Woodrow Smith’s Ja= nuary 4, 2011 letter was included, with a handwritten circle around “3. You send the copies. Why should I pay?” Woodrow Smith’s January 21, = 2011 letter contained no information “on this sheet” or elsewhere indicating that it was sent to anyone other than the Court.

&n= bsp;

17.&= nbsp; Court Legal Assistant India Davidson contacted all the parties by email, seeking confirmation as to whether they received Woodrow Smith’s January 21, 2011 correspondence. Responses from the other parties confirmed that they had received Woodrow Smith’s January 21, 2011 cor= respondence.

&n= bsp;

18.&= nbsp; On February 10, 2011, Elson’s Land Corp, LLC, by Manager Timothy L. Elson, filed a Motion to Withdraw Petition= for Administrative Review, granted in the Court’s February 18, 2011 Final Order Granting Dismissal of Elson’s Land Corp., LLC’s Petition = for Review.

19.&= nbsp; On March 2, 2011, Permittee timely file= d its Reply to Woodrow Smith’s “Response” to Motion to Dismiss,= and its Proposed Findings of Fact, Conclusions of Law, and Order.

20.&= nbsp; No further contact was received from Woodrow Smith, nor did he seek leave from complying with deadlines set by t= he Court.

[2011 OEA 58, page 65 begins]

Conclusions of Law

<= /b>

= 1.&n= bsp;     The Indiana Department of Environmental Management (“IDEM”) is authorized to implement and enforce specified Indiana environm= ental laws, and rules promulgated relevant to those laws, per I.C. § 13-13, = et seq. The Office of Environmental Adjudi= cation (“OEA” or “Court”) has jurisdiction over the decisi= ons of the Commissioner of IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7, et seq.

= 2.&n= bsp;     This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. 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;     Both Respondent IDEM and Permittee Twin Lakes dispute wheth= er Woodrow Smith’s documents were timely filed in this forum. Permittee further challenges wheth= er Woodrow Smith’s filed documents meet the requirements to be regarded = as a Petition for Administrative Review. A person who is “aggrieved or adversely affected” by, and wants to challenge, an agency action or order, seeks administrative review = by filing a written petition for administrative review in compliance with I.C. § 4-21.5-3-7(a). Petitio= ns for review of IDEM agency actions are filed with OEA, I.C. § 4-21.5-7, et seq.

= 4.&n= bsp;     In this case, IDEM and Permittee Twin Lakes seek dismissa= l, asserting that OEA lacks subject matter jurisdiction over Woodrow SmithR= 17;s December 9, 2010 letter, arguing that the letter is untimely-filed, if otherwise deemed a petition for administrative review. Motion= s to dismiss generally test the legal sufficiency of a claim, not the facts supporting it. Gorski v. DRR, Inc., 801 N.E.2d 642, 644 (Ind. Ct. App. 2003). When ruling on a motion to dismiss, “a court is required to take as true a= ll allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint.” Huffman v. Office of Envt'l. Adjudication, 811 N.E.2d 806, 814 (Ind. 2004). Determinations considering facts b= eyond the complaint are treated by the court as a motion for summary judgment. Id. Whether on a motion to dismiss or = on summary judgment, all reasonable inferences must be drawn in favor of the non-moving party. Meyers v. Meyers, 861 N.E.2d 704, 705-706 (Ind. 2007).

= 5.&n= bsp;     This Court must apply a de novo standard of review to this proceeding when determining the facts at issue. Indiana<= /i> Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (= Ind. 1993), I= ndiana-Kentucky Electric v. Commissioner, Indiana Department of Environmental Management, 820 N.E.2d 771 (Ind. Ct. App. 2005). Findings of fact must be based exclusively on the evidence presented to the ELJ. I.C. &= sect; 4-21.5-3-27(d). Deference to = the agency’s initial determination is not allowed. Id. “De novo review” means that “all issues are to be determined anew, based solely upon t= he evidence adduced at that hearing and independent of any previous findings.” Grisell v= . Consol. City of Indianapolis, 425 N.E.2d 247, 253 (Ind. Ct. App. 1981).

[2011 OEA 58, page 66 begins]

= 6.&n= bsp;     OEA is required to base its factual findings on substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of OEA review of NPDES permit); see also I.C. § 4-21.5-3-27(d). &= #8220;Standard of proof generally has been described as a continuum with levels ranging fr= om a "preponderance of the evidence test" to a "beyond a reasonab= le 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 Moore, 453 N.E.2d 971, 972, n. 2. (= Ind. 1983). The "substantial evidence" standard requires a lower burden of proof = than the preponderance test, yet more than the scintilla of the evidence test. Burke v. City of Anderson, = 612 N.E.2d 559, 565, n.1 (Ind. Ct. App. 1993).= GasAmerica #47, 2004 OEA 123, 129. See also= Blue River Valley, 2005 OEA 1, 11-12. Objection to the Denial of Excess Liability Trust Fund Claim Mara= thon Point Service, ELF # 9= 810570/FID #1054, New Castle, Henry County, Indiana; Winimac Service, ELF #9609539/FID #14748, Winimac, Pulaski County, Indiana; HydroTech Consulting and Engineer= ing, Inc. (04-F-J-3338), 2005 OEA 26, 41.

7.&n= bsp;     Concerning administrative agencies such as OEA, I.C. § 4-21.5-3-7(a)(3) requires that a petition for administrative review = must be filed within fifteen (15) days after the person is given notice of the o= rder or any longer period set by statute. Concerning OEA’s review of IDEM decisions, I.C. § 13-15-6-1(a) requires that a petition for administrative review must be fil= ed by a person aggrieved by the IDEM commissioner’s action no later than fifteen (15) days after being served the Notice provided by IDEM. OEA does not have, and has no discretion to acquire, subject matter jurisdiction of a petition for administrative review filed after the deadlines mandated by statute. Chas. A. Beard Class Room Teacher’s Assn. V. Bd. Of Trustees of Chas. A. Be= ard Memorial School Corp., 668 N.E.2d 1222, 1224 (Ind. 1996); Walker Mfg. Co v. Dep’t of Local Gov’t Finance, 772 N.= E.2d 1, 4-6 (Ind. Tax 2002); In re: Objection to the Issuance of Notic= e of Decision, Murphy Oil USA, Inc., Seymour, Jackson County, Indiana, 2004 = OEA 51, 55; Variance for Open Burning, Herring, 2008 OEA 7; In re: Objection to Denial of Excess Liability Trust Fund Claim, Frank Suverkup, Benzol Cleaning Co., Inc., 2004 OEA 48; Comm’r, Indiana Dep’t of Environmental Management v. Ha= rry Randhawa, La Oasis, Inc, 20= 09 OEA 1. For OEA to have jurisdicti= on over Woodrow Smith’s petition for administrative review, it had to be filed within fifteen days after he received notice of the Permit.

= 8.&n= bsp;     I.C. § 4-21.5-3-1 and -2 direct how to determi= ne when a document is filed.   A document sent in a postmarked envelope is considered served and filed on its postmark date. I.C. § 4-= 21.5-3-1(f)(2). If the postmark is illegible or otherwise not present, OEA applies the service and filing date for when the document is received by OEA. = I.C. § 4-21.5-3-1(f)(1). OEA = has applied these statutory requirements to the filing dates applied to the par= ties’ filings in this cause.

= 9.&n= bsp;     Woodrow Smith’s first filing with the Court on December 9, 2010 states “This information I received 12-1-10 means nothing (letter dated 11-10-10).”&nb= sp; IDEM issued the Permit on November 10, 2010. Permittee’s legal counsel st= ates as argument in its January 18= , 2011

[2011 OEA 58, page 67 begins]

Motio= n to Dismiss Petition for Review, that IDEM served the permit on Woodrow Smith on November 10, 2010. A review beyond the Woodrow Smith’s written filings and in to the Permit in the Court’s record (attached to Elson’s Petition for Administrative Review) shows that the document has a partial l= ist of some of those to whom the Permit was sent, but the partial list does not include Woodrow Smith. While = the Court does not doubt that Permittee’s counsel argues in good faith th= at a copy of the Permit was sent to Woodrow Smith on November 10, 2010, counsel’s argument cannot be relied upon by the Court as substantial evidence. And, the Court̵= 7;s role as fact-finder excludes its ability to serve as investigator to determ= ine when the Permit was sent to Woodrow Smith.= The Court was presented with no further evidence as to the date when Woodrow Smith received notice of the IDEM action he challenged. This Court is required to take as = true all allegations on the face of the complaint, and draw all reasonable inferences in favor of the non-moving party, Woodrow Smith.   Thus, Woodrow Smith’s December 9, 2010 letter provides substantial evidence that he received noti= ce of the IDEM action, the Permit, on December 1, 2010. Woodrow Smith first filed a letter protesting IDEM’s issuance of the Permit on December 9, 2010, less th= an 15 days after receiving notice. Woodrow Smith’s December 9, 2010 letter was timely filed.

= 10.&= nbsp; Permittee Twin Lakes seeks dismissal of this cause on the basis that Woodrow Smith did not file a sufficient petition for administrative review. In its Motion to Dismiss, Permittee Twin Lakes seeks summary judgment against Woodrow Smith if the Court did not grant dismissal. 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.” I.= C. § 4-21.5-3-23; See also In= d. Tr. R. 56.

= 11.&= nbsp; The moving party bears the burden of establishing that summary judgment is appropriate. When the moving = party (here, Permittee Twin Lakes) sets out a prima facie case in support of the summary judgment, the burden shifts to the non-movant (here, Woodrow Smith) to establish a factual issue. “A factual issue= is said to be ‘genuine’ if a trier of fact is required to resolve = the opposing parties differing versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861, 864 (Ind. Ct. App. 1992). “A genuine issue of material= fact exists where facts concerning an issue that would dispose of the litigation= are in dispute or where the undisputed facts are capable of supporting conflict= ing inferences on such an issue.” Laudig v. Mario= n County Bd. Of Voters Registration, <= /i>585 N.E.2d 700, 703-704 (Ind. Ct. App. 1992).&= nbsp; All facts and inferences must be construed in favor of the non-movant. Gibson v. Evansville Vanderbu= rgh Building Commission= , et al., 725 N.E.2= d 949 (Ind. Ct. App. 2000). See In Re: Objection to Construction Permit Application, Plans = and Specifications for Thompson/Emerson Barrett Law Sewer, Petitioner Raymond G= rahn, 2004 OEA 40 (03-W-J-3225); See In Re: Objection to Issuance of Sanitary Sewer Construction Permit Approval No. 17305R, West Boggs Sewer District, Inc., Loogootee, Martin and Daviess Counties, Indiana, 2008 OEA 142 (07-W-J-3898).

[2011 OEA 58, page 68 begins]

= 12.&= nbsp; In responding to a motion for summary judgment, mere assertions, opinions, or conclusions of law asserted by the non-movant will not suffice to create a genuine issue of material fact to preclude summary judgment. Sanchez v. Hamara, 534 N.E.2d 756, 758 (Ind. Ct. App. 1989), trans. denied; McMahan = V. Snap-On Tool Corp., 478 N.E.2d 116, 122 (Ind. Ct. App. 1985). See also West Boggs, Id. “Summary judgment may not be granted as a matter of course bec= ause the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence.” I.C. § 4-21.5-2-23(b). Woodrow Smith’s lack of response to Permittee’s dismissal motion does n= ot result in a grant of Permittee’s dispositive motion as a matter of course, but does place in issue facts to be gleaned from the pleadings or evidence.

= 13. I.C. § 4-21.5-3-7(1) mandates that “[t]o qualify for review of [an agency order], a person must petition= for review in a writing that . . . states facts demonstrating that:

<= span style=3D'mso-list:Ignore'>(A)&= nbsp; <= span style=3D'mso-spacerun:yes'> the petitioner is a person to whom = the order is specifically directed;

<= span style=3D'mso-list:Ignore'>(B)&= nbsp; <= span style=3D'mso-spacerun:yes'> the petitioner is aggrieved or adve= rsely affected by the order; or

(C) <= span style=3D'mso-spacerun:yes'> the petitioner is entitled to review under any law.

14. Wo= odrow Smith’s written filings do not qualify as a petition for review of the Permit under I.C. § 4-21.5-3-7(1)(A), as the Permit was specifically directed to Twin Lakes, not Woodrow Smith. Woodrow Smith’s written fili= ngs do not qualify as a petition for review of the Permit under I.C. § 4-21.5-3-7(1)(C), as Woodrow Smith has not provided legal authority establishing that he is entitled to review under any law. Therefore, Woodrow Smith’s w= ritten filings must qualify as a petition for review under I.C. § 4-21.5-3-7(= 1)(B). Woodrow Smith must establish that = he is aggrieved or adversely affected by the Permit for his written filings to qualify as a petition for review.

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15. “[W]hether a person is entitled t= o seek administrative review depends upon whether the person is “aggrieved or adversely affected”. Huffman v. Indiana Office of Environmental Adjudication, et al., 811 N.E.2d 806, 807 (Ind. 2004). Per Huffman, in order for a person to be “aggrieved or advers= ely affected”, they “must have suffered or be likely to suffer in t= he immediate future harm to a legal interest, be it pecuniary, property or personal interest.” Id at 810.   Huffman interpreted the language o= f I.C. § 4-21.5-3-7 as not allowing administrative review based upon a generalized concern as a member of the public. Id. Huffman had challenged the issuance= of a permit to Eli Lilly and Company to discharge pollutants into Indiana's waters. Huffman owns the corporation that had one unit of and was the managing member of the corpora= tion that owned a property adjacent to the property from which the discharge wou= ld occur. The lower courts dismissed Huffman's objection to the issuance of the permit because of a lack of factual support for the allegations that Huffma= n or the property might be harmed. Huffman had alleged that her management dutie= s of the neighboring property required her to be present on the property with frequency, and thus she might be exposed to health risks not addressed by t= he permit issued by IDEM.   = In response, the permittee alleged that due to the downstream location of the discharge point, no impact to

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[2011 OEA 58, page 69 begins]

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Huffman= was possible. Huffman's petition was challenged by a motion to dismiss supporte= d by facts outside Huffman's pleadings, and thus was required to be treat= ed by the Court as a Motion for Summary Judgment. The Indiana Supreme C= ourt ruled that Huffman's dismissal by the lower courts was not supported= by substantial evidence. The Court remanded Huffman's case back to OEA = to provide Huffman with an opportunity to present additional evidence of her health concerns (settled prior to OEA decision on remand). “Particularly because the OEA never gave Huffman an opportunity to provide additional evidence or to deve= lop the argument more fully, it was impossible for the OEA to tell what Huffman’s personal health claim was and whether it had any mer= it. Dismissing the claim was therefore premature.” Id at 815.

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16. Whether Woodrow Smith is aggrieved or adversely affected by the Permit is a factual issue dispositive of this litigation. Woodrow Smith had= three opportunities to meet the statutory requirement to prove that he was aggrie= ved or adversely affected: one, h= is petition for review; two, by responding to the Order to Supplement; three, = by responding to Permittee’s Motion to Dismiss. Woodrow Smith’s responses in= two December 4, 2010 letters were “Homeowner” and “Don’t have the income to justify cost of something that is not needed or proven t= hat it is needed.”   Th= is statement constitutes an assertion that Woodrow Smith is likely to suffer immediate future harm to a pecuniary legal interest.

17. The Court must next determine whether W= oodrow Smith’s assertion provides substantial evidence as to whether he is aggrieved or adversely affected. On a summary judgment challenge, a conflicting inference of fact is to be construed in favor of non-movant Woodrow Smith.   Woodrow Smith did not respon= d to Permittee’s dispositive motion.   The Court’s Order to Supplement specifically ordered that Woodrow Smith must state how s/he is aggrieved or adversely affected by IDEM’s action. Woodrow Smith’s responses in= two December 4, 2010 letters were “Homeowner” and “Don’= t have the income to justify cost of something that is not needed or proven that i= t is needed.”   This ass= ertion demonstrates that Woodrow Smith is likely to suffer harm to a pecuniary leg= al interest in the immediate future. The inference that Woodrow Smith is aggrieved or adversely affected = is drawn from his assertion that he is “Homeowner”. Woodrow Smith’s assertion th= at he is “Homeowner” gives rise to a reasonable inference that the Pe= rmit directly affects Woodrow Smith. Woodrow Smith may be required to pay rates for the permitted project and thus suffer harm to a pecuniary legal interest in the immediate future.

18. Woodrow Smith’s written statement= s, and the inferences to be drawn from them, provide a sufficient factual basis for Woodrow Smith to provide substantial evidence that Woodrow Smith was aggrie= ved or adversely affected by the Permit under I.C. = § 4-21.5-3-7(1).

[2011 OEA 58, page 70 begins]

19. <= span style=3D'mso-spacerun:yes'> Woodrow Smith also has the burden of proving that his written statements must meet other statutory requirements = in order to qualify as a petition for review.= I.C. § 13-15-6= -2 sets out the requirements f= or appealing a permit issued by IDEM as follows:<= /a>

A written re= quest for an adjudicatory hearing under section 1 of this chapter must do the following:

(1)         St= ate the name and address of the person making the request.

(2)         Id= entify the interest of the person making the request.

(3)         Id= entify any persons represented by the person making the request.=

(4)         St= ate with particularity the reasons for the request.

(5)         St= ate with particularity the issues proposed for consideration at the hearing.

(6)         Id= entify the permit terms and conditions that, in the judgment of the person making = the request, would be appropriate in the case in question to satisfy the requirements of the law governing permits of the type granted or denied by = the commissioner's action.

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20. Additionally, the Indiana Administrativ= e Code contains the following requirements related to the initiation of a proceedi= ng for administrative review with the Office of Environmental Adjudication:

(b)   The petition for administrative review = shall contain the following information:

…=

(4)    St= ate with particularity the legal issues proposed for consideration in the proceedings as follows:

(A)   In a case involving an appeal= of a permit, identify the following:

(i)   Environmental concerns or technical deficiencies related to the action of the commissioner that is the subject = of the petition.

(ii) Permit terms and conditions that the petitioner contends would be appropriate to comply with the law applicable = to the contested permit.

315      =       IA= C 1-3-2(b) (emphasis added).

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21. The Order to Supplement gave Woodrow Sm= ith notice as to how his written filings did not comply with the minimum legal requirements stated in I.C. § 13-15-5-2 and 315 IAC 1-3-2(b). The Order to Supplement gave Woodr= ow Smith at least 30 days to cure the deficiencies in his petition for review. The Order to Suppleme= nt also gave Woodrow Smith notice that the consequence for not complying with = the Order to Supplement was dismissal, per I.C. § 4-21.5-3-24; 315 IAC 1-3= -7.

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[2011 OEA 58, page 71 begins]

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22. By providing information about his iden= tify and address, by noting that he is “Homeowner”, and enclosing incomplete portions of the Permit which identified the permitted project [3], Woodrow Smith’s written filings provide substantial evidence of compliance with subparts (1), (2) and (3) of I.C. § 13-15-6-2 . Woodrow Smith’s contentions that the permitted facilities are not needed and will be too costly for the residents provides substantial evidence of the basis for requesting review, but does not provi= de the particularity required by subpart (4).= By substantial evidence, as a matter of law, Woodrow Smith’s written filings did not comply with I.C. § 13-15-6-2, subpart (4). Woodrow Smith’s written fili= ngs did not comply with the Order to Supplement’s requirement that “= ;the Petitioner must identify which portions of the permit to which s/he is objecting.” The content= of Woodrow Smith’s written filings is insufficient as a petition for administrative review of the Permit and should be dismissed.

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23. Although not cited by Woodrow Smith, the majority of technical environmental requirements relevant to the Permit are stated in 327 IAC 3, et seq. A review of 327 IAC 3, et seq., shows that the Permit, as issued, complies with applicable regulations. No regulations relevant to IDEM= 217;s jurisdiction require either an applicant or IDEM to consider the concerns stated by Woodrow Smith. Wood= row Smith’s factually-unsupported assertions that the facilities are not needed, or that septic tanks may not have been tested, do not provide sufficient evidence that his petition complied with requirements stated in = I.C. § 13-15-6-2 subpart (5), (6) and 315 IAC 1-3-2(b)(4), or the Order to Supplement.   As for the = burden of resulting costs, OEA is not authorized to address cost in determining the Permit’s validity.   See In re: Objection to the Issuance o= f 327 Article 3 Construction Permit Application Plans and Specifications for U.S. Highway 6 Sanitary Sewer Relocation Permit Approval No. 16219 Portage, Porter County, Indiana; 2004 OEA 1 (03-W-J-3235); See also Raymond Grahn, Id., West Boggs, Id. By failing to provide sufficient information about the legal basis for his petition, or corrective provisions for the permit as terms which would , Woodrow Smith did not comply with I.C. § 13-15-6-2 subpart (5), (6) and 315 IAC 1-3-2(b)(4), or the Order to Supplement and is subject to dismissal per I.C. § 4-21.5-3-23 and -24.=

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FINAL ORDER

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&= nbsp;          For all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR= EED that Permittee/Respondent Twin Lakes Regional Sewer District’s and Indiana Department of Environmental Management’s Motion to Dismiss Woodrow Smith’s Petition for Administrative Review for timely filing = is DENIED, and Permittee/Respondent = Twin Lakes Regional Sewer District’s Motion to Dismiss, treated in part as= a Motion for Summary Judgment is GRA= NTED in part such that Woodrow Smith’s Petition for Administrative Review = is DISMISSED with prejudice. Permit 19800 issued to Twin Lakes Regional Sewer District by the Indiana Department of Environmental Manageme= nt is AFFIRMED. All further proceedings are VACATED.

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[2011 OEA 58, page 72 begins]

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        &= 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= . 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 15th day of April= , 2011 in Indianapolis, IN.

Hon. Mary L. Davidsen

Chief Environmental Law Judge

[2011 OEA 58: end of decision]=

2011 OEA 58 in .doc format

2011 OEA 58 in .pdf format

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