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Objectio=
n to
the Issuance of Construction Application for Sanitary Sewer
Approval
No.19508,
Shipshew=
ana,
2010=
OEA
55, (09-W-J-4305=
)
[2010 OEA 55, page 55 begins]
O=
FFICIAL
SHORT CITATION NAME: When referring to 2010 OEA 55, cite thi=
s case
as &nbs=
p;
TOPICS=
:
summary judgment
sanitary sewer
wastewater
collection system
setback
treatment
pretreatment
hydrogen sulfide gas
certification
capacity
average daily flow rate
alternative technical standards
local permit
moot
notice
lack of notice
water pollution treatment/control facility
Huffman
Musol
PRESID=
ING
JUDGE:
Catherine Gi=
bbs
PARTY
REPRESENTATIVES=
:
IDEM: &n=
bsp; Nan=
cy
Holloran, Esq.
Petitioners: &nbs= p; Dianne and Robert Fiedler, Kay and Dennis Martin, Veronica and Michael Victor
Permittee: = John Gastineau, Esq.; Eberhard & Gastineau, PC
ORDER =
ISSUED:
May 5, 2010<= o:p>
INDEX
CATEGORY:
Water
FURTHER C=
ASE
ACTIVITY:
Judicial Review
[2010 OEA 55, page 56 begins]
STATE OF
 =
; &n=
bsp;  =
; &n=
bsp;  =
; ) &=
nbsp; &nbs=
p; ENVIRONMENTAL
ADJUDICATION
COUNTY OF )
IN THE MATTER OF: =
&nb=
sp; =
&nb=
sp; =
)
 =
; &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp; )
OBJECTION TO ISSUANCE OF CONSTRUCTION )
PERMIT APPLICATION FOR SANITARY SEWER ) &=
nbsp;
PERMIT APPROVAL NO. 19508 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) &=
nbsp;
SHIPSHEWANA=
st1:PlaceName>
SHIPSHEWANA,
_______________________________________________ ) &=
nbsp; CAUSE
NO. 09-W-J-4305
Dianne & Robert Fiedler, Kay & Dennis Martin, &=
nbsp; &nbs=
p; )
Steve Schrock, et al.,<=
span
style=3D'mso-tab-count:6'> &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
 =
; Petitioners, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
LaGrange County Regional Utility District, =
&nb=
sp; )
 =
; Permittee/Respondent, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Indiana Department of Environmental Management, =
)
 =
; Respondent &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND FINAL ORDER
 =
; This
matter having come before the Court on the LaGrange County Regional Utility
District’s (the District) Motion for Summary Judgment, the Indiana
Department of Environmental Management’s Motion for Summary Judgment =
and
the Petitioners’ Dispositive Motion for Summary Judgment Seeking
Revocation of Permit 19508, which pleadings are parts of the Court’s
record; and the Court, being duly advised and having read the pleadings, pe=
tition,
motion, response, reply and evidence now enters the following findings of f=
act,
conclusions of law and final order:
Statement of the Case<= o:p>
1.
Be=
tween
August 21, 2009 and September 3, 2009, the Office of Environmental Adjudica=
tion
(the OEA or the Court) received petitions for administrative review of the
issuance of Approval No. 19508 to the District by the Indiana Department of
Environmental Management (the IDEM).
2.
On
October 21, 2009, the District filed its Motion to Dismiss Persons as
Petitioners. The Court grante=
d the
motion to dismiss the following Petitioners: Mervin Miller, Steve Slaven, Steven
Fanning, Michael C. Merritt, Raymond Howard, Bruce Nenna, Dawn Dunlap, John
Powalowski, Sue Powalowski, Erin Burke, Jack C. Thomas, Elmma Yoder, Joe Yo=
der,
Molly Wiard, Joseph Schlabach, and Norma Easterday. The Court denied the motion to dis=
miss
Lavon Schlabach and Mark Easterday.
[2010 OEA 55, page 58 begins]
3.
The
District filed its Motion for Summary Judgment on January 27, 2010. Thereafter, it filed its Response =
to
Petitioners’ Dispositive Motion for Summary Judgment on March 4, 2010=
and
its Reply to Petitioners’ Response to the District’s Motion for
Summary Judgment on March 17, 2010.
4.
The
Petitioners filed their Dispositive Motion for Summary Judgment Seeking
Revocation of Permit 19508 on January 29, 2010. The Petitioners filed their Respon=
se to
Respondent the LaGrange County Regional Utility District’s Numerous
Motions Seeking Summary Judgment; and their Response to Respondent the Indi=
ana
Department of Environmental Management’s Motion for Summary Judgment =
on
March 2, 1010. Their Reply to
Respondent LaGrange County Regional Utility District’s Response,
Including Supplemental Motions, to Petitioners’ Dispositive Motion for
Summary Judgment was filed on March 17, 2010.
5.
Th=
e IDEM
filed its Motion for Summary Judgment on January 29, 2010. The department filed its Reply to =
Motion
for Summary Judgment on March 17, 2010.
Statement of the Issue=
s
1. Was the Permit properly issued?
2. Was notice to all affected parties given?
=
FINDINGS OF FACT
<=
span
style=3D'mso-bidi-font-size:12.0pt'>1. On August 18, 2009, the Indiana Departm=
ent of
Environmental Management (the IDEM) issued Approval No. 19508 (the Approval=
) to
the LaGrange County Regional Utility District (the District) authorizing the
construction of a sanitary sewer around
<=
span
style=3D'mso-bidi-font-size:12.0pt'>2. Between August 31, 2009 and September 3,
2009, the Office of Environmental Adjudication (the OEA or Court) received =
many
petitions for review of the Approval.
The Petitions for Review were consolidated under Cause Number
09-W-J-4305. The parties cons=
ented
to allowing the following individuals to represent all of the Petitioners:<=
span
style=3D'mso-spacerun:yes'> Diane and Robert Fiedler; Kay and =
Dennis
Martin; and Veronica and Michael Victor.
<=
span
style=3D'mso-bidi-font-size:12.0pt'>3. The Petitioners filed an Amended Petiti=
on for
Administrative Review on December 23, 2009.
<=
span
style=3D'mso-bidi-font-size:12.0pt'>4. The Project consists of the constructio=
n of a
sanitary sewer collection system around
[2010 OEA 55, page 59 begins]
<=
span
style=3D'mso-bidi-font-size:12.0pt'>5. The permit application was submitted to=
the
IDEM on June 22, 2009. The
application includes several documents which certify certain facts. These documents were signed on var=
ious
dates, the earliest of which was January 20, 2009. Between January 20, 2009 and June =
22,
2009, the design of the Project had not changed in a significant way in ter=
ms
of: the system’s hydrau=
lics;
the flows the system was designed to handle; or the flows that would go into
the Town of
<=
span
style=3D'mso-bidi-font-size:12.0pt'>6. The District admits that portions of the
collection system were located within ten (10) feet of
<=
span
style=3D'mso-bidi-font-size:12.0pt'>7. The Project includes the construction o=
f a
chemical feed and metering station (the Station). The Station is located on the east=
side
of County Road 850 W near the intersection of County Road 260 N. The location of the Station was mo=
ved
approximately 60 feet north of the originally proposed location. This was the only change made to t=
he
proposed plans between January 2009 and June 2009, when the application was
submitted to IDEM.
<=
span
style=3D'mso-bidi-font-size:12.0pt'>8. The Station has 2 purposes: (1) to measure the flow of wastewa=
ter;
and (2) to inject the wastewater with a chemical named Musol MPOX Active
(Musol) prior to being discharged into the Town of Shipshewana’s
collection system. The purpos=
e of
the chemical treatment is to control odor and reduce corrosion. The chemical is automatically adde=
d as
the wastewater flows through the Station.&=
nbsp;
The wastewater flows through approximately 1300 feet of pipe to a li=
ft
station owned and operated by the Town of
<=
span
style=3D'mso-bidi-font-size:12.0pt'>9. The chemical added at the Station does =
not
render the wastewater safe for discharge into waters of the State. Sewage releases hydrogen sulfide g=
as[1],
which has a rotten egg smell. The
Musol reduces this odor and the corrosivity of the gas. The Musol does not act to neutrali=
ze or
change the nature of the wastewater; it does not serve to make the wastewat=
er
any more appropriate for discharge into the waters of the State. There is no change in BOD[2],
TSS[3],
ammonia, or phosphorus[4].
[2010 OEA 55, page 60 begins]
CONCLUSIONS OF LAW
<=
span
style=3D'mso-bidi-font-size:12.0pt'>1. The Office of Environmental Adjudication
(“OEA”) has jurisdiction over the decisions of the Commissioner=
of
the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.<=
u>
<=
span
style=3D'mso-bidi-font-size:12.0pt'>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.
<=
span
style=3D'mso-bidi-font-size:12.0pt'>3. This office must apply a de novo standard
of review to this proceeding when determining the facts at issue.
4.
Th=
e 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.=
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.
5.
Wh=
en the
moving party sets out a prima facie=
case in support of the summary judgment, the burden shifts to the non-movan=
t to
establish a factual issue. =
8220;A
factual issue is said to be "genuine" if a trier of fact is requi=
red
to resolve the opposing parties differing versions of the underlying
facts.” ., 586 N.E.2d 861 (Ind. Ct. App. 1992) =
at
864. “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 conflicting inferences on such an issue.” Laudig v.
[2010 OEA 55, page 61 begins]
<= span style=3D'mso-list:Ignore'>6.&n= bsp; Mere assertions of opinions or conclusions of law w= ill not suffice to create a genuine issue of material fact to preclude summary judgment. Sanchez v. Hamara, 534 N.E.2d 756, 759 (Ind. Ct. App. 1989)(cit= ing McMahan v. Snap On Tool Corp., 478 N.E.2d 116, 122 (Ind. Ct. App. 1985)).&nbs= p; Further, “Summary judgment must be denied if the resolution hi= nges upon state of mind, credibility of the witnesses, or t= he weight of the testimony. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702 (Ind. Ct. App. 19= 99) at 706.
The
materials submitted in support of the Permit were
sufficient
to support issuance of the Permit.
7.
The
issue in this matter is not whether the application was approvable when it =
was
filed with the IDEM but whether the application was approvable on the date =
that
the Permit was issued. The ID=
EM has
the authority to review the application and ask for additional information
prior to approving a permit. =
327
IAC 3-2-2-(e)(7). The IDEM pr=
operly
considered all of the material submitted in support of the Permit including=
the
material that was submitted in response to IDEM’s notices that the
application was deficient. Th=
e mere
fact that the supporting documents were signed on various dates prior to the
submission of the application is not sufficient to support a conclusion that
the application was deficient. The
Petitioners must prove more than just that the materials were signed on
different dates; the Petitioners must prove that the information contained =
in
the materials was false or inaccurate; that the signatories knew that the
information was false or inaccurate; or that the information was otherwise
insufficient to support the issuance of the Permit. In this case, the Petitioners must=
show
that the information, upon which the capacity certifications were based,
changed between the date the certification was signed and the date that the
application was submitted to the IDEM.
8.
The
Petitioners argue that the fact that the certifications were dated as early=
as
January of 2009 mandates a finding that the certifications were faulty. Specifically, the Petitioners cite=
to
327 IAC 3-6-11 which states that the flow rate requirements must be determi=
ned
in accordance with this section.
This rule further states that an applicant may use a general average daily flow rate value of 310 gpd[5]/single
family homes to determine flow rate requirements. However, 327 IAC 3-6-32 provides t=
hat
alternative technical standards may be approved by the Commissioner. In this case, the District used an
alternate average daily flow rate of 150 gpd/single family home and request=
ed
permission to use this figure in accordance with 327 IAC 3-6-32. The Petitioners argue that by usin=
g an
alternate average daily flow rate without first having obtained permission =
to
do so, the District knew that the certifications did not meet the rule
requirements and were false.
However, this interpretation of the rule is not supported by the rule
language. The use of the word
“may” in 327 IAC 3-6-11 and the provision allowing for the appr=
oval
of alternative technical standards at 327 IAC 3-6-32 allow an applicant to
include an alternative standard at the same time as requesting permission t=
o do
so. The rule language does not
support the Petitioners’ contention that the District was required to=
use
the 310 gpd flow rate and that the use of any other flow rate
[2010 OEA 55, page 62 begins]
mand=
ates a finding
that the District knew that the certifications were false. Therefore, as there is no issue of
material fact, summary judgment in favor of the District is appropriate.
9.
The
Petitioners further argue that the plans for the sewer are faulty because t=
he
sewer will be constructed within fifty (50) feet of drinking water wells,
pursuant to 327 IAC 3-6-9(d)(3).
This issue was not raised in either the original Petition for Review=
or
the Amended Petition for Review so it is not properly before the Court. However, for expediency’s sa=
ke,
the Court will address it. The
drinking water wells in question are individual wells, not “public wa=
ter
system drinking water wells” as defined by I.C § 13-2-11-177.3[6]. The Petitioners have not presented
sufficient evidence that the drinking water wells are public water system
drinking water wells and subject to this requirement. Summary judgment in favor of the
District is appropriate.
10.
In=
, In
the Matter of: Objections to Issuance of Solid Waste Facility Permit =
46-09,
Great Lakes Transfer Station, La Porte County, (05-S-J-3632; 05-S-J-36=
55),
2006 OEA 24, 32, the petitioners sought to have a permit to build a solid w=
aste
permit invalidated because the permittee had not acquired all of the necess=
ary
local and state permits. Chief
Environmental Law Judge Mary L. Davidsen ruled that the rules governing the
permitting process did not require the permittee to obtain those permits pr=
ior
to applying for the solid waste permit.&nb=
sp;
Chief ELJ Davidsen wrote that “The permit does not allo=
w or
give
11.
Fu=
rther,
I.C. § 13-15-3-5(b) provides that “a person to which a permit has
been issued may not start the construction, installation, operation, or
modification of a facility, equipment, or a device until the person has obt=
ained
any approval required by any (1) county; (2) city; or (3) town; in which the
facility, equipment, or device is located.” In addition, 327 IAC 3-2-2(d) stat=
es,
“Construction shall not commence until all necessary state approvals =
and
permits are obtained.” =
Also,
327 IAC 3-6-6(b) states, “(b) All required permits or exemptions from
other federal, state, and local units must be obtained prior to the
commencement Indiana Administrative Code Page 15 of construction of any
sanitary sewer covered by this rule.”
12.
In
addition, the Permit itself indicates that all local permits/approvals must=
be
obtained before construction begins.[7]
[2010 OEA 5=
5, page 63
begins]
13.
Ea=
ch of
these rules requires that a permittee have all necessary permits and approv=
als
before it can begin construction.
The rules do not require that the permits and approvals be obtained
prior to applying for the construction permit. Therefore, summary judgment in fav=
or of
the District is appropriate.
14.
The
Petitioners allege that the construction plans are not in compliance with t=
he
rules. Specifically, th=
ey
allege that the plans are not in compliance with 327 IAC 3-6-10(a). This rule states “(a) Sanita=
ry
sewers and lift stations shall be separated from existing or proposed water
bodies by ten (10) feet horizontally measured from the outside edge of the
sanitary sewer to the edge of the water line at normal pool elevation.̶=
1;
15.
The
District has admitted that the sewers, as originally designed, are within 10
feet of
16.
The
Petitioners argue that I.C. § 13-15-7-1 requires that the IDEM issue a
modified permit. This statute
provides that the Commissioner of the IDEM may
revoke or modify a permit under certain circumstances. The use of the word “mayR=
21;
grants the Commissioner discretion in this matter. The revisions made by the District=
were
relatively simple and there were no changes in the nature or volume of
wastewater or to the collection system, such as size, materials, or entranc=
e or
exit points. In this instance=
, the
Petitioners have not provided sufficient evidence to prove that the Commiss=
ioner
abused his discretion. =
17. This issue is moot as the approved revi=
sions
have corrected the noncompliance.
“When a dispositive issue in a case has been resolved in such =
as
way as to render it unnecessary to decide the question involved, the case w=
ill
be dismissed.” Travelers Indem. Co. v. P.R. Mallory &=
amp;
Co., 772 NE.2d 479, 484 (
18.
The
Petitioners have failed to present sufficient evidence to show that the
Project, as revised, does not comply with 327 IAC 3-6-10(a). Therefore, summary judgment in fav=
or of
the District is appropriate.
[2010 O= EA 55, page 64 begins]
19.
The
Petitioners argue that the Station is a “water pollution
treatment/control facility” and, as such, the District was required to
have a separate permit for the construction of the Station. 327 IAC 3-1-2(24) defines "Wa=
ter
pollution treatment/control facility" as “any equipment, device,
unit, or structure at a site that is used to control, prevent, pretreat, or
treat any discharge or threatened discharge of pollutants into any waters of
the state of
20.
It=
is
clear that the Station is a structure at a site that discharges into a publ=
ic
sewer system (the Town of
21.
The
Station clearly does not control or prevent any discharge. The wastewater flows through the p=
ipes
contained in an underground vault below the structure and is not accumulate=
d. There is no discharge from the Sta=
tion.
22.
The
question is whether the Station “pretreats” or “treats=
221;
the sewage. I.C. § 13-11=
-2-239
defines “treatment” as follows:
= "Treatment", for purposes of environmental management laws, when used in connection with= a waste that is determined to be hazardous waste under I.C. § 13-22-2-3, means any method, technique, or process designed to change the physical, chemical, or biological character or composition of the waste so as to:
(1)&= nbsp; neutralize the waste;
(2)&= nbsp; make the waste:
(A)&= nbsp; &nbs= p; nonhazardous or less hazardous;
(B)&= nbsp; &nbs= p; safer to transport, store, or dispose of;
(C)&= nbsp; &nbs= p; amenable to recovery or storage; or
(D)&= nbsp; &nbs= p; reduced in volume; or
(3)&= nbsp; recover energy or material resources from the waste= .
23.
Th=
e evidence
established that the Musol acts to neutralize the hydrogen sulfide gas in o=
rder
to reduce the odor and the corrosive effects of the gas on the pipes. While the Musol acts to neutralize=
the
gas, there was no evidence that it changes the composition of the wastewater
itself. It does not (1) neutr=
alize
the wastewater; (2) make the wastewater nonhazardous or less hazardous, saf=
er
to transport, store or dispose of or reduce volume; or (3) recovers energy =
or
material resources from the wastewater. The Petitioners did not pres=
ent
sufficient evidence that the addition of the Musol “treats” the
sewage.
[2010 OEA 55, page 65 begins]
24. “Pretreat”
is not defined in either the regulations or the statutes. However, in the context of the rul=
es
promulgated by the Water Pollution Control Board, pretreatment is used in
reference to pretreatment programs run by publicly owned treatment works
(POTW). The purposes of the
pretreatment program are set out in 327 IAC 5-16-1 as follows:
(1)
To prevent the introduction of pollutants in=
to a
POTW that will interfere with the operation of a POTW, including interferen=
ce
with the use or disposal of municipal sludge.
(2)
To prevent the introduction of pollutants in=
to a
POTW that will pass through the treatment works without receiving effective
treatment or otherwise be incompatible with such works.
(3)
To improve opportunities to recycle and recl=
aim
municipal and industrial wastewaters and sludges.
25.
The
addition of the Musol to the wastewater does not serve any of the purposes =
for
the pretreatment programs. The
Town, the operator of the POTW, has consented to the use of the Musol. The Petitioners have not establish=
ed
that hydrogen sulfide is a “pollutant” or that it would interfe=
re
with the operation of the Town’s POTW; that it would not be effective=
ly
treated at the POTW; or that it improves opportunities to recycle or reclaim
any of the wastewater. The
Petitioners did not present sufficient evidence that the addition of the Mu=
sol
“pretreats” the sewage.
26.
The
Station is not a “water pollution treatment/control facility”.<=
span
style=3D'mso-spacerun:yes'> The Petitioners have failed to sho=
w that
the District was not in compliance with the applicable regulatory
requirements. Summary judgmen=
t in
favor of the District on this issue is appropriate.
Failure to give notice to all affe=
cted
parties does not
constitute valid grounds to invali=
date
Permit.
27. The
Petitioners further aver that the District’s failure to give notice to
all affected parties requires that the Permit be revoked. The rule that sets out the require=
ments
for notice is 327 IAC 3-2-2. =
The
pertinent portion of this rule, 327 IAC 3-2-2(e)(6) states:
(6)
All
applications for construction permits must include a signed and dated form =
as
provided by the commissioner for the identification of affected persons as
determined by I.C. § 4-21.5-3-5(b). One (1) prepared mailing label for
each potentially affected person shall be provided by the applicant for mai=
ling
notice of the permit when issued. Each mailing label shall include the name,
address, and zip code of the potentially affected person and shall show on =
the
topmost line of the label a mail code designated by the commissioner.
[2010
OEA 55, page 66 begins]
28.
The
Indiana Supreme Court held, in Huffman v.
29.
An
aggrieved individual, one who was not able to timely file a petition for re=
view
due to the lack of notice, has suffered an injury for which this office can
grant relief. However that is=
not
the case here. None of the
Petitioners have alleged that they have been personally harmed by the
District’s failure to give them notice. Those Petitioners that did not rec=
eive
notice, but were able to file a timely petition for review, have sustained =
no
injury. Because they have suf=
fered
no injury, they have failed to state a ground upon which relief may be gran=
ted.
30.
Fu=
rther,
proof of lack of notice does not constitute sufficient evidence that the pe=
rmit
application did not meet the technical standards. If a person did not receive notice=
, the
appropriate remedy would be to allow that person additional time in which to
file a petition for review. T=
he
Petitioners have failed to provide statutory authority or sufficient eviden=
ce
to support their argument that a failure to provide notice constitutes grou=
nds
for invalidating the permit.
Capacity certification letters are not required from other agenc=
ies.
31.
The
Petitioners allege that the District erred in not obtaining capacity
certification letters from various agencies, other than those local agencies
with the authority to construct and operate the collection systems through
which the wastewater flows. T=
he
crux of the argument is that every agency that can exercise jurisdiction ov=
er
the Project must provide capacity certification pursuant to 327 IAC 3-6-4.<=
span
style=3D'mso-spacerun:yes'>
32.
32=
7 IAC
3-6-4 states, “The authorized representative of the town, city, sanit=
ary
district, or any entity that has jurisdiction over the proposed collection system must sign and date the
application and issue the following certification”. The certification requires the
representative certify that the collection system meets certain standards w=
hich
could only be done by someone who has knowledge of the actual collection
system.
[2010 O= EA 55, page 67 begins]
33.
Th=
e same
rules that govern construction of statutes also govern construction of
rules. Miller Brewing Co. v. Bartholomew
34.
Th=
ere
are other agencies that have some authority over different aspects of the
Project. However, none of the=
se
agencies have or could be expected to have the detailed knowledge necessary=
to
certify to the facts required by the rule.=
Nor would any of these agencies have any legal authority over the
operation or construction of the collection system.
35.
Th=
is
conclusion is consistent with Under=
wood
Plaza, 2008 OEA 76 and Independence Hill Conservancy District=
, 2007 OEA 164. Both of these cases involved parti=
es who
claimed jurisdiction over the collection system. In Independence
Hill, the OEA found that the owner/operators of the downstream collecti=
on
system to which the new collection system would be connected had jurisdicti=
on
over the collection system and must supply a capacity certification. Chief ELJ Davidsen stated “T=
he
determination of the extent of a collection system depends on the path for
wastewater collection and discharge sought in a particular application.R=
21; Independence
Hill Conservancy District, =
2007
OEA 164 at 172. In
36.
The
Petitioners have failed to submit sufficient evidence to show that there is=
a
genuine issue of material fact
FINAL
ORDER
<= o:p>
&=
nbsp; IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the LaGrange County Regional Utility District’s Moti=
on
for Summary Judgment is GRANTED =
b>and
the Petition for Review filed by the Petitioners is hereby DISMISSED.
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=
.
[2010 O= EA 55, page 68 begins]
Pursuan=
t to
I.C. § 4-21.5-5-5, a Petition for Judicial Review of this Final Order =
is
timely only if it is filed with a civil court of competent jurisdiction wit=
hin
thirty (30) days after the date this notice is served.
&=
nbsp; IT
IS SO ORDERED this 5th day of May, 2010 in
Hon. Catherine Gibbs
Environmental Law Judge
[2010 OEA 55: end of decision]
2=
010
OEA 55 in .doc format
2=
010
OEA 55 in .pdf format
[1] The ELJ was unable to find a statute or regulation which requires the monitoring of or imposes effluent limitations on hydrogen sulfide gas. The testimony at the hearing made = it clear that the addition of the Musol MPOX Active was a voluntary action to which the District and the Town agreed.
[2] Biological oxygen demand
[3] Total suspended solids
[4] Constituents for which NPDES permits commonly require either monitoring or impose effluent limits.
[5] Gallons per day
[6] This statute references the definition contained in 42 U.S.C. 300f which defines a public water system as a “system for the provision to the p= ublic of water for human consumption through pipes or other constructed conveyanc= es, if such system has at least fifteen service connections or regularly serves= at least twenty-five individuals.”
[7] Exhibit F, introduced into evidence at hearing held on October 28, 2009, Pe= rmit Approval No. 19508, issued August 18, 2009, page 3 of 6, Part I, Specific Conditions and Limitations to the Construction Permit, paragraph 1.
[8] Exhibit F, page 5 of 6, Part II, General Conditions, paragraph 1.
[9]
The Petitioners cite to Conclusion of Law #9 in support of their contention
that this ELJ has found that other entities with jurisdiction must exist. However, the Petitioners read more=
into
this than was meant. The fact=
that
the Court did not preclude the possibility that there were other entities t=
hat
may have jurisdiction does not mean that such entities actually exist.
Objectio=
n to
the Issuance of Construction Application for Sanitary Sewer Approval No. 19=
508,
Shipshew=
ana,
2010=
OEA
55, (09-W-J-4305=
)