TOPICS:

Objection to Issuance of Construction Permit Application for <= /o:p>

Waste Water Treatment Plant Permit Approval No. 19656

Koontz Lake Regional Sewer District

Walkerton, Starke Coun= ty, Indiana

2010 OEA 172, (10-W-J-4368)

<= span style=3D'text-decoration:none'>

[2010 OEA 172= , page 172 begins]

OFFICI= AL SHORT CITATION NAME: = When referrin= g to 2010 OEA 172 cite this case as

      &= nbsp;     Koontz Lake Regional Sewer District, 2010 OEA 172.

&nbs= p;

TOPICS= :

stay

District Plan

327 IAC 3 Construction Permit Application Plans and Specifications

Summary Judgment

U.S.= Fish and Wil= dlife Service

Preponderance of the evidence

District modification plan

Regional sewer district

I.C. § 13-15, et seq= .

I.C. § 13-26-2-10(b)(4)

I.C. § 13-26-6, et seq.

315 IAC 1-3-2.1

327 IAC 3

PRESID= ING JUDGE:<= /span>

Mary L. Davi= dsen

<= /o:p>

PARTY REPRESENTATIVES:

IDEM:        &= nbsp;     Sierra L. Alberts, Esq.

Petitioners:=         Mark E. Shere, Esq.

Permittee:         = James N. Clevenger, Esq.; Wyland, Humphrey, Wagner & Clevenger, LLP

<= /o:p>

ORDER = ISSUED:

October 20, = 2010

<= /o:p>

INDEX CATEGORY:

Water

<= /o:p>

FURTHE= R CASE ACTIVITY:

[none]<= /o:p>

<= /o:p>

[2010 OEA 172, page 173 begins]

<= /o:p>

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

      = ;            &n= bsp;            = ;            &n= bsp;    ) SS:            &n= bsp;            = ;   ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION<= /st1:PlaceName>        ) =             &nb= sp;            =             &nb= sp;

IN THE MATTER OF:   =             &nb= sp;            =             &nb= sp;            =        )

      = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp; )

OBJECTION TO ISSUANCE OF CONSTRUCTION          )

PERMIT APPLICATION FOR WASTE WATER&= nbsp;           &nbs= p;     )

TREATMENT PLANT PERMIT APPROVAL NO. 19656    )   =

KOONTZ LAKE REGIONAL SEWER DISTRICT=             &nb= sp; )

WALKERTON, STARKE COUN= TY, INDIANA            =       )

_______________________________________________ )    &= nbsp;      Cause No. 10-W-J-4368

Sandra and Mark Beaubien, Michael and Donna Owens,          = )

Thomas and Frances Raycroft, Patricia Ann Markle,        &= nbsp;        )<= /p>
Theresa Orozco, Carl Raycroft, Loretta Bock,            =             &nb= sp; )

Daniel Raycroft, Bridget Baeza, and Colleen Raycroft,        &= nbsp;     )

      = ;      Petitioners,        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;        )<= /p>
Koontz Lake Regional Sewer District,             &= nbsp;           &nbs= p;             = )

      = ;      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 ORDER<= /o:p>

  &nbs= p;         This matter came before the Court on the application of Thomas and Frances Raycr= oft for a stay of the approval of the construction permit by the Indiana Depart= ment of Environmental Management ("IDEM") of April 16, 2010 to issue a construction permit, approval number 19656 for a proposed Koontz Lake wastewater pollution treatment/control facility in the community of Koontz Lake, Starke and Marshall Counties, Indiana ("construction permit"). The Chief Environmental Law Judge ("ELJ") having considered the petitions, pleadings, evidence, and briefs now finds that a final summary judgment sho= uld be made upon the record. The = Chief ELJ, by substantial evidence, and being duly advised now makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1.      On May 26, 2006, the Koontz Lake Re= gional Sewer District (the “District”) was established by Order of the Indiana Department of Environmental Management (“IDEM”) for the purpose of collection, treatment, and disposal of sewage.

      = ;

2.      The Order establishing the District stated that the District would file with IDEM a detailed plan for the construction of the operation by December 11, 2007.

[2010 OEA 172, page 174 begins]

3.      IDEM issued a First Modification Or= der at the request of the District to extend the time frame for the submittal of t= he district plan to December 11, 2008.

4.      On= April 30, 2010, IDEM issued a Second Order Modifying the Order Forming the Koontz Lake Regional Sewer District at the request of the District to extend the t= ime to file the district plan to October 1, 2010.

5.      On= April 16, 2010, IDEM issued 327 IAC 3 Construction Permit Application Plans and Specifications for Koontz Lake Wastewater Treatment Plant and Wastewater Collection System Permit Approval No. 19656 (the “Permit”) to t= he District. <= /p>

6.      The Permit authorized the construction of a water pollution treatment/collection facility (the “Project”) to be located on the west side of C.R. 1175 E. approximately 950 feet south from the intersection of C.R. 1175 E. = and South Street (in Starke County) (the “Site”). The proposed wastewater collection system will be located throughout the community of <= st1:City w:st=3D"on">Koontz Lake, Indiana.

7.      The Permit states that “in accordance with the provisions of I.C. § 13-15, and 327 IAC 3 the Proj= ect is permitted”. As a General Condition, the Permit states:

Nothing herein shall be construed as guaranteeing that the proposed water pollution treatment/control facility s= hall meet the standards, limitations or requirements of this or any other agency= of state or federal government, as this agency has no direct control over the actual construction and/or operation of the proposed project.

8.      On= April 28, 2010, Petitioners Mark and Sandra Beaubien filed a Petition of Administrative Review of the Permit.

9.      On= April 30, 2010, Petitioners Thomas and Frances Raycroft, Theresa Orozco, Carl Raycroft, Loretta Bock, Daniel Raycroft, Bridget Baeza, and Colleen Raycrof= t filed a Petition for Administrative Review and Request for a Stay Until Further Consideration of Project is Done (“Petition”).

10. On April 30, 2010, Petitioners Mich= ael and Donna Owens filed an appeal of the Permit.

11. On April 30, 2010, Petitioner Patri= cia Ann Markle filed an appeal of the Permit.&= nbsp;

12. On May 28, 2010, Petitioner Michael= Owens filed to withdraw his request for an appeal.

13. On June 7, 2010, Petitioner Suzanne Pearse filed a Petition for Administrative Review.

[2010 OEA 172, page 175 begins]

14. On June 14, 2010, Chief Environment= al Law Judge (“ELJ”) Mary Davidsen entered a Notice of Proposed Order = of Default of Sandra and Mark Beaubien and Donna Owens for failure to appear at the June 7, 2010 Prehearing Conference.

15. On= June 14, 2010, the ELJ entered a Final Order Granting Dismissal of Petitioner Michael Owens.

16. On= June 21, 2010, Petitioner Patricia Ann Markle filed a letter with the ELJ reques= ting voluntary withdrawal of her Petition for Administrative Review.<= /span>

17. On= June 23, 2010, the ELJ entered a Final Order Granting Dismissal of Petitioner Patricia A. Markle.

18. On= June 23, 2010, an evidentiary hearing was held on Petitioners’ request to = stay the Permit. Petitioners Thoma= s A. Raycroft, Frances L. Raycroft and Loretta Bock attended in person, with thr= ee of their children and grandchildren, Maury Raycroft, Cecilia Bock and Johnny Bock. Legal counsel Mark E. S= here, Esq. entered his appearance as Petitioners’ representative by attendi= ng to represent Petitioners at the evidentiary hearing. Permittee/Respondent Koontz Lake Regional Sewer District attended in person by Joshua Weaver, Stephen Carter, Stephen Fralish, Ken Jones, Sr., and Kenneth Jones, Jr. and by legal counsel James N. Clevenger, Esq. The = Indiana Department of Environmental Management attended by legal counsel Sierra L. Alberts, Esq., joined by observing legal interns Michael Rea and Andy Williams. <= /p>

19. No= other Petitioners attended the stay hearing in person, nor sought leave from attending. Petitioners’ counsel stated to the Court and parties that = he represented “all” petitioners to this cause. During the evidentiary hearing on = stay, Petitioners’ counsel presented legal argument that this cause should = be dismissed, asserting that IDEM acted in contravention of law by issuing the construction permit before receiving and approving the district plan. The Court instructed the parties to address the legal issues of dismissal in briefing to be set after the stay hearing.

20. Pe= titioners presented testimony that “[t]he woodland area where the WWTP is propo= sed is a high quality upland and wetland habitat . . . among the rarest ecosyst= ems on earth” and a “globally imperiled ecosystem.” Petitioners’ Ex. 3 and Petition, Appendix 2, October 21, 2009 letter from Supervisor Sco= tt E. Pruitt, U.S. Department of Fish and Wildlife. Mr. Pruitt further described the Site as a “high quality savan= na and wetland complex, which is a very rare habitat supporting a variety of uncommon plant and wildlife species.” Id. Mr. Pruitt further stated:

[2010 OEA 172, page 176 begins]

The U.S. Fish and Wildlife Service reco= gnizes the difficulty the Koontz Lake RSD has had in finding a suitable location f= or their WWTP because we have been involved in the NEPA process associated with their proposal. Although we continue to prefer that a less ecologically significant site be used, apparently no such site has been found/is available. It appears that the KLSRD has made= great efforts to reduce the footprint of the WWTP in order to lessen the adverse impacts to this savanna/wetland complex.&n= bsp;

21. Mr. Raycroft testified that he had a long use, regard and appreciation for the Site, located next to undeveloped property he owns. Mr. Raycroft and his family confir= med their multigenerational use and high regard for their property’s natu= ral resources.   Mr. Raycroft stated that he planned to retire to his property, which plans would be impe= ded by odors, lights, noise and traffic resulting from the Site’s develop= ment in accord with the construction permit.

22. Si= te representatives testified that a buffer strip had been developed between the Raycroft property and the Site, along with screening plantings and elevated earth to minimize impact to the Raycrofts.

23. On= June 28, 2010, this Court issued a Post-Hearing Scheduling Order ordering Petitioner= s to submit their dispositive motion by July 15, 2010.

24. On July 15, 2010, Petitioners filed= their Post-Hearing Brief and Dispositive Motion of Petitioners. The Petitioners are seeking summary judgment on the merits of this case. The Petitioners claim that “[t]he ultimate merits are thus ful= ly presented, and the issue of the interim ‘stay’ is moot.”<= span style=3D'mso-spacerun:yes'>

25. On August 4, 2010, the District filed its Response to Petitioners’ Post-= Hearing Brief and Dispositive Motion.

26. On August 5, 2010, IDEM filed its Memorandum of Law in Opposition to Petitioners’ Motion for Summary Judgment.

27. On August 19, 2010, Petitioners filed their Reply in Support of the Post-Heari= ng Brief and Dispositive Motion of Petitioners. Per the Court’s Post-Hearing= Case Management Order, final briefing and Proposed Findings of Fact, Conclusions= of Law and Orders were due by September 10, 2010. After the parties presented further argument to the Court in a series of emails, the Court closed the record on September 14, 2010. No further motions to open the record were filed.

28. Pe= nding issues raised by the Petitioners include their request for a stay and summa= ry judgment concerning IDEM’s issuance of the construction permit before= the District filed a separate document containing its District plan.=

[2010 OEA 172, page 177 begins]

CONCLUSIONS OF LAW

<= span style=3D'mso-list:Ignore'>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”) has jurisdiction over the decisions of the Commissioner= of IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7, = et seq.

<= span style=3D'mso-list:Ignore'>2.&n= bsp;     This is a Final Order issued pursuant to I.C. § 4-21.5-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.

<= span style=3D'mso-list:Ignore'>3.&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), Jennings Water, Inc. v. Office of Envtl. Adjudication, 909 N.E.2d 1020, 1025 (Ind. Ct. App. 200= 9). Findings of fact must be based exclusively on the evidence presented to the Environmental Law Judge (“ELJ”), and deference to the agency’s initial factual determination is not allowed. Id.; I.C. § 4-21.5-3-27(d). “The ELJ . . . serves as the= trier of fact in an administrative hearing and a de novo review at that level is necessary. Indiana Department of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100, 103 (Ind. 1993).<= span style=3D'mso-spacerun:yes'> The ELJ does not give deference to= the initial determination of the agency.” Indiana-Kentucky Elec. Corp v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 820 N.E.2d 771 (Ind. Ct. App. 2005). “= De novo review” means that “all are to be determined anew, bas= ed solely upon the evidence adduced at that hearing and independent of any pre= vious findings.” Grisell v= . Consol. City of Indianapolis, 425 N.E.2d 247 = (Ind. Ct. App. 1981).

<= span style=3D'mso-list:Ignore'>4.&n= bsp;     The party requesting a stay must show by a preponderance of the evidence that the requirements have been met. 315 IAC 1-3-2.1(b). The requiremen= ts for a stay include that the person will suffer irreparable harm pending the resolution of the case on the merits because its remedies at law are inadequate; the person is likely to prevail on the merits; the threatened injury to the person requesting the stay outweighs the threatened harm that= the grant of the stay may inflict on the other party; and the public interest w= ill be served by the grant of the stay.

<= span style=3D'mso-list:Ignore'>5.&n= bsp;     The OEA may enter judgment for a party if it finds = that “the pleadings, depositions, answers to interrogatories, and admissio= ns on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving pa= rty is entitled to judgment as a matter of law.” I.C. &= sect; 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. Evansville= Vanderburgh Bldg Comm’n, et al., 725 N.E.2d 949 (Ind. Ct. App. 2000).= All evidence must be construed in = favor of the opposing party, and all doubts as to the existence of a material iss= ue must be resolved against the moving party. City of North Vernon v. Jennings= Northwest Regional Utilities, 829 N.E.2d

[2010 OEA 172, page 178 begins]

1, (<= st1:State w:st=3D"on">Ind. 2005) (citing Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996)). “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, 585 N.E.2d 700, 703 - 704 (Ind. Ct. App. 1992). The moving party bears the burden = of establishing that summary judgment is appropriate. When the moving party sets out a p= rima facie case in support of the summary judgment, the burden shifts to the non-movant to establish a factual issue.

<= span style=3D'mso-list:Ignore'>6.&n= bsp;     Petitioner’s mere assertions, opinions or conclusions of law will not suffice to create a genuine issue of material f= act 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).

<= span style=3D'mso-list:Ignore'>7.&n= bsp;     In their timely-filed Petition for Administrative Review, Petitioners limited the issues on review to whether IDEM properly issued the 327 IAC 3 Construction Permit Application Plans and Specificatio= ns for Koontz Lake Wastewater Treatment Plant and Wastewater Collection System Permit Approval No. 19656 to the District.= The issue raised by Petitioners concerning this District’s Pla= n is before this Court only to determine whether IDEM is required to approve a district plan, separate and apart from a construction permit, before IDEM is authorized to issue a Construction Permit.= Otherwise, the issue of whether IDEM and/or the District have compli= ed with rules and regulations for the establishment of a regional district, I.= C. § 13-26, et seq., is not before this Court and has no bearing on the District’s ability to obtain a construction permit pursuant to I.C. § 13-15, et s= eq. and 327 IAC 3.

<= span style=3D'mso-list:Ignore'>8.&n= bsp;     It is the District’s responsibility pursuant = to the General Condition to ensure that “actual construction” meets the “standards, limitations or requirements of this or any other agen= cy of state or federal government”.&nbs= p;

<= span style=3D'mso-list:Ignore'>9.&n= bsp;     Pursuant to I.C. § 13-26-2-10(b)(4), an order establishing the district must “[d]irect the district to file a detai= led plan for the initial project of the district not later than nine (9) months after the date of the preliminary order or within a further time that the department from time to time orders.”

<= span style=3D'mso-list:Ignore'>10.&= nbsp; Petitioners argue that I.C. § 13-26-2-10(b)(4) states that the district plan must = be submitted before IDEM can legally issue the District a permit. The plain, unambiguous language of= I.C. § 13-26-2-10(b)(4) contains no such requirement. I.C. § 13-26-2-10(b)(4) state= s that a district plan must be filed in nine (9) months after the date of the preliminary order or a further time established by IDEM. The Second Order Modifying the Ord= er Forming the Koontz Lake Regional Sewer District orders the district plan to= be submitted by October 1, 2010. However, a requirement that the district plan must be submitted befo= re the District can obtain a construction permit for the Project is absent from I.C. § 13-26-2-10(b)(4).

[2010 OEA 172, page 179 begins]

<= span style=3D'mso-list:Ignore'>11.&= nbsp; Petitioners rely on I.C. § 13-26-6-2, which states that if IDEM approves the distr= ict plan, IDEM “shall authorize the district to proceed”. Petitioners argue this means the district plan must be submitted for IDEM to authorize “the district to proceed with its ‘initial project’”. However, the law does not state th= at the department shall authorize the district to proceed with its initial project. It states that ̶= 0;the department shall authorize the district to proceed.” I.C. § 13-26-6-2. This means to proceed with the for= mation and the operation of a regional district under I.C. § 13-26 et seq.

<= span style=3D'mso-list:Ignore'>12.&= nbsp; I.C. § 13-26, et seq. does not = limit the District from proceeding in the form of seeking a construction permit.<= span style=3D'mso-spacerun:yes'> Pursuant to I.C. § 13-26-6-1,= a district plan must include engineering reports; plans and specifications; a= nd a feasibility study.

= 13. IDEM = staff testified that in most cases a district plan is not submitted prior to a construction plan being submitted because the district plan consists of the same items required in a construction permit application. The employee responsible for recei= ving the district plan is not an engineer; testimony revealed that if the distri= ct plan was submitted prior to obtaining a construction permit, the plans would have to be reviewed by an IDEM engineer.&n= bsp; Therefore, since the construction permit and district plan are essentially the same plan, IDEM generally receives the district plan once t= he construction section has reviewed the plans and issued a permit indicating = that the plan is acceptable.

<= span style=3D'mso-list:Ignore'>14.&= nbsp; As the district plan must include engineering reports, plans and specifications and the IDEM employee who reviews the district plan is not an engineer, once the plans have been approved through the construction permitting process, t= he IDEM employee who reviews the district plan will know that the plans and specifications are acceptable to IDEM engineers. See I.C. § 13-26-6-1.&nbs= p; The District can then submit those plans as a part of the district p= lan in accordance with I.C. § 13-26-2-10 and I.C. §§ 13-26-6-1 a= nd 2.

= 15. Petit= ioners rely on Clay Township v. Clay Towns= hip Regional Waste District, 838 N.E.2d 1054 (Ind. Ct. App. 2005) (&#= 8220;Clay Township”) to support t= heir argument that the district plan must be approved before a construction perm= it may be approved. Clay Township<= /st1:PlaceName> case is distinguishable from this case.&nb= sp;

<= span style=3D'mso-list:Ignore'>16.&= nbsp; In Clay= Township, a regional waste district was established in Clay Township in June of 1975. = Clay Township<= /st1:PlaceName>, 838 N.E.2d at 1057. Almost thirty (30) years later, on December 27, 2004, the District attempted to modify the District’s organizational plan without seeking approval from IDEM first. Id. at 1058. The Indiana Court of Appeals held = that the “relevant statutes do not permit a district’s board to reshuffle itself.” = Id. at 1067. More specifically, the Court held = that “[j]ust as a district board must petition IDEM to increase the number= of its trustees, see I.C. § 13-26-1-2(a)(3), so must it petition IDEM to reallocate the appointment of = its trustees.” Id.

[2010 OEA 172, page 180 begins]

<= span style=3D'mso-list:Ignore'>17.&= nbsp; Clay Township is not applicable to this case because Clay Township<= /st1:PlaceName> only deals with the laws and rules regulating the formation of a regional sewer district and not the issuance = of a 327 IAC 3 construction permit.  =

<= span style=3D'mso-list:Ignore'>18.&= nbsp; Even if this Court were to consider Petitioners’ argument that the Permit = is contrary to I.C. § 13-26, et s= eq., Clay Township does not apply in t= his case because the Koontz Lake District is not seeking to modify any of the requirements of I.C. § 13-26 without IDEM’s approval. In Clay Township<= /st1:PlaceName>, the regional district was establi= shed thirty (30) years prior to the District attempting to modify the organizati= onal plan without IDEM’s approval. Clay = Township, 838 N.E.2d at 1058. In the matter at hand, to date the Koontz Lake District is in compliance with =

I.C. = § 13-26, et seq., having received= an extension until October 1, 2010 to file the district plan and obtain authorization to proceed. Therefore, the Court’s analysis and holding in Clay Township<= /st1:PlaceName> is not relevant as to whether IDEM legally or properly issued the Permit to the District pursuant to I.C. &sec= t; 13-15 and 327 IAC 3.

<= span style=3D'mso-list:Ignore'>19.&= nbsp; The Petitioners also challenge the substance of IDEM’s review of the construction permit application. Petitioners assert that IDEM should have considered whether the prop= osed project is “economically feasible, fair, or reasonable”. Petitioners rely on I.C. § 13= -26-6-4(1) to support this argument.

<= span style=3D'mso-list:Ignore'>20.&= nbsp; Whether the Project is “economically feasible, fair, or reasonable” und= er I.C. § 13-26-6-4(1) has no bearing on a 327 IAC 3 construction permit. Petitioners have rais= ed no legal provision in 327 IAC 3 that would require IDEM to determine whether t= he Project is “economically feasible, fair, or reasonable” because there is no such provision in the only applicable laws and regulations to t= his matter, I.C. §13-15, et seq., and 327 IAC 3.

<= span style=3D'mso-list:Ignore'>21.&= nbsp; Petitioners argue that the United States Fish and Wildlife Service (the “Department”) is against the Project. Petitioners submitted a portion of= a letter from the Department regarding this matter. A review of the entire letter, off= ered by Respondents, resolves the Department’s issues.

= 22. In the November 13, 2009 letter from the Department to the District’s consultant, which is attached to the Petitioners’ Petition, the Department stated:

The U.S. Fish and Wildlife Service reco= gnizes the difficulty the Koontz Lake RSD has had in finding a suitable location f= or their WWTP because we have been involved in the NEPA process associated with their proposal. Although we continue to prefer that a less ecologically significant site be used, appar= ently no such site has been found/is available. It appears that the KLSRD has made = great efforts to reduce the footprint of the WWTP in order to lessen the adverse impacts to this savanna/wetland complex.&n= bsp;

[2010 OEA 172, page 181 begins]

<= span style=3D'mso-bidi-font-size:12.0pt'>23. The November 13, 2009 letter also discu= sses items or steps that can be taken by the District during the Project to prot= ect the ecosystem.

<= span style=3D'mso-bidi-font-size:12.0pt'>24. Further, the Department has not filed a= ny objection to the District proceeding with the Project.

<= span style=3D'mso-bidi-font-size:12.0pt'>25. Petitioners have presented no evidence justifying the issuance of a stay. Petitioners have presented no evidence that IDEM’s issuance of= the Permit is in violation of Ind. Code § 13-15 or 327 IAC 3.

<= span style=3D'mso-bidi-font-size:12.0pt'>26. The only applicable laws and regula= tions in this matter are Ind. Code § 13-15 et seq. or 327 IAC 3. Pursuant to those laws and regulat= ions, IDEM properly and legally issued the Permit to the District because there i= s no requirement in Ind. Code § 13-15 or 327 IAC 3 that a district plan pursuant to I.C. § 13-26-2-10 must be filed before IDEM can issue a 327 IAC 3 permit.            =

<= span style=3D'mso-bidi-font-size:12.0pt'>27. The District and IDEM have demonstrated= that there is no genuine issue of fact in dispute. The Petitioners have not demonstra= ted there is a genuine issue of fact in dispute. Accordingly, the District and IDEM= are entitled to summary judgment as a matter of law.

Final Order

For all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Petitioners’ Sandra and Mark Beaubien, Donna Owens, Thomas and Frances Raycroft, Theresa Orozco, Carl Raycroft, Loretta Bock, Daniel Raycroft, Bridget Baeza, and Colleen Raycroft’s Petition for S= tay is DENIED. Summary Judgment for is DENIED as to Petitioners Sandra a= nd Mark Beaubien, Donna Owens, Thomas and Frances Raycroft, Theresa Orozco, Ca= rl Raycroft, Loretta Bock, Daniel Raycroft, Bridget Baeza, and Colleen Raycroft and GRANTED as to the Koontz L= ake Regional Sewer District and the Indiana Department of Environmental Managem= ent. Waste Water Treatment Plant Permit Approval No. 19565 issued to Koontz Lake Regional Sewer District was properly approved by the Indiana Department of Environmental Management, and should not be stayed.

        &= nbsp;   This cause is= DISMISSED, all pending proceedings in this cause are VACATED.

        &= nbsp;   You are 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 administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management.&nb= sp; A party is eligible to seek Judicial Review of this Order as stated = in applicable provisions of I.C. § 4-21.5, et seq. Pursuant = to I.C. § 4-21.5-5-5, a Petition for Judicial Review of this Order is tim= ely only if it is filed with a civil court of competent jurisdiction within thi= rty (30) days after the date this notice is service.

[2010 OEA 172, page 182 begins]

IT IS SO ORDERED this 20th day of October, 2010 in Indianapolis, IN.

Hon. Mary L. Davidsen

Chief Environmental Law Judge

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