Topics:

Objection to the Issuance of Construction Permit

Cadillac Drive Sanitary Sewer Extension Permit Appr= oval #19694

Fort Wayne, Allen County, <= st1:State w:st=3D"on">Indiana

2010 OEA 168, (10-W-J-4375)

[2010 OEA 1= 68, page 168 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2010 OEA 168 cite this case as

&nbs= p; Aqua Indiana, Inc., 2010 OEA 168.

TOPICS= :

hearing

sanitary sewer

need

costs

PRESIDING = JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM: = ; Denise Walker, Esq.

Petitioner: = ; W.F. Quinn, pro se

Permittee: = Philip B. McKiernan, Esq., Joseph M. Hen= del, Esq.; Hackman Hullett & Cracraft

ORDER ISSU= ED:

October 15, 2010

INDEX = CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

[2010 OEA 1= 68, page 169 begins]

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

&= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION )

&nbs= p;

IN THE MA= TTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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

OBJECTION= TO THE ISSUANCE OF &= nbsp; &nbs= p; )

CONSTRUCT= ION PERMIT = &nb= sp; = ) &= nbsp;

CADILLAC DRIVE SANITARY SEWER = ; <= /span>)

EXTENSION= PERMIT APPROVAL #19694 &nbs= p; )

FORT WAYNE, ALLEN COUNTY, INDIANA )

_________= _______________________________ ) CAUSE NO. 10-W-J-4375

W.F. Quin= n, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

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

Aqua Indi= ana, Inc., &n= bsp; = ; &n= bsp; = ; )

Permittee/R= espondent, &= nbsp; &nbs= p; &= nbsp; )

Indiana Department of Environmental Management,&nbs= p; )

Respondent<= span style=3D'mso-tab-count:5'> &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER<= /u>

<= /span>This matter came before the Office of Environmental Adjudication (OEA or the Cou= rt) for a hearing on William F. Quinn’s Petition for Review. The Court, having read the pleadin= gs, heard the testimony and examined the evidence now enters the following find= ings of fact, conclusions of law and final order in favor of Aqua Indiana, Inc. = and the Indiana Department of Environmental Management.

FINDINGS OF FACT

1.&n= bsp; On June 7, 2010, the Indiana Department of Environmental Management (IDEM) issued Construction Permit Approval No. 196= 94 (the Permit) to Aqua Indiana, Inc. (the Permittee) authorizing the construc= tion of a sanitary sewer system extension to be located north of Scottwood Court= and Cadillac Drive in Fort Wayne, Indiana.

2. William F. Quinn (the Petitioner) filed his petition for review on June 8, 2010. The Petitioner resides at 4345 Dicke Road, Fort Wayne, Indiana. The Permit authorizes the construc= tion of sewer system at his home.

3. The Court issued a Notice of Incomplete Filing and Order to Supplement Petition= on June 14, 2010, ordering the Petitioner to supplement his petition for review within thirty (30) days. The Petitioner failed to do so. T= he Court then issued a Notice of Proposed Order of Default on July 21, 2010. The Petitioner responded on July 2= 6, 2010. The Court set aside the proposed order of default and set for a prehearing conference on September = 7, 2010. The Petitioner and the = IDEM appeared at the prehearing conference.&nbs= p; At the prehearing

[2010 OEA 1= 68, page 170 begins]

conference, at the request of the Petitioner, this case= was set for a final hearing on October 8, 2010. A hearing was held on this date. All parties appeared; evidence and testimony was presented.

4.&n= bsp; The Petitioner, in the hearing and his petition for review, objects to the Permit on the basis that the Permittee has not shown= a need for the sewer. He also o= bjects to the costs associated with the construction.

Applicable Law<= /p>

= ; The Indiana Department of Environmental Management (IDEM) is authorized to implement and enforce specified Indiana environmental laws and rules promulgated relevant to those laws, pursuant to I.C. § 13. The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner of the IDEM and the parties to this controver= sy pursuant to I.C. § 4-21.5-7-3.

The Petitioner has the burden to prove that the IDEM erred in issuing this Permit. That requires present= ing proof that the IDEM or the Permittee failed to comply with all of the applicable requirements. The requirement= s for sanitary sewers are found in 327 IAC 3.&nb= sp; In making the determination to issue the Permit, the IDEM may only consider whether the plans and specifications for the sewer system meet the= se regulations. Therefore, the Petitioner must specify which regulation the sewer system does not meet.

There is no requirement in 327 IAC 3 that a permit applicant must show that a need exists before being granted a construction permit. Further, there is no requirement t= hat IDEM must consider the financial impact on affected parties in determining whether it is proper to issue a permit.

CONCLUSIONS OF LAW<= /b>

1.&n= bsp;     The Petitioner testified that his septic system had= not failed and there was no need for a sanitary sewer system at his property. He further testified that he did n= ot have the financial resources to pay for his portion of the construction cos= ts. He was unable to identify any other alleged deficiencies in the Permit.

2.&n= bsp;     Neither of these things must be considered by the I= DEM in deciding whether to issue a construction permit.

3.&n= bsp;     In this instance, the Petitioner has been unable to show that the Permit is deficient. <= /span>The Petitioner has failed to meet his burden of proof that the IDEM erred in issuing this Permit. Judgment= in the IDEM’s and the Permittee’s favor is appropriate.

[2010 OEA 1= 68, page 171 begins]

FINAL ORDER

      = ;      AND THE COURT, being duly ad= vised, hereby ORDERS, ADJUDGES AND DECREES that judgment is entered in favo= r of the Indiana Department of Environmental Management and Aqua Indiana, Inc. The Petition for Review is DISMISSED. All further proceedings are VACATED.

      = ;      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. &sec= t; 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely on= ly if it is filed with a civil court of competent jurisdiction within thirty (= 30) days after the date this notice is served.

IT IS SO ORDERED th= is 15th day of October, 2010 in I= ndianapolis, IN.

Hon. Catherine Gibbs
Environmental Law Judg= e

[2010 OEA 168: end of decision]

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