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Objection to Issuance of Construction Permit Approval No. L-0366
Luce Township Regional Sewer District
2011 OEA 141, (10-W-J-4440)
[2011 OEA 141, page 141 begins]
OFFICIAL S= HORT CITATION NAME: When referring to 2011 OEA 141 cite this case as
&nbs=
p; Luce
Township Regional Sewer District, 2011 OEA 141.
TOPICS:
327 IAC 3
Construction Permit Application Plans and Specifications
sanitary sew=
er
system
construction=
wastewater
collection system
single famil=
y homes
proposed
homeowners/users
school
expected ave=
rage
daily wastewater flow
Department of
Natural Resources
Construction=
in a
Floodway
Stay Hearing=
Summary Judg=
ment
future possi=
ble
users
design flow<= o:p>
rural commun=
ity
gallons per =
day
(GPD)
financial
information
rates
327 IAC 3
Steven Buse et al v. Trustees, Luce Tow=
nship
Regional Sewer District,
&=
nbsp; 953
N.E.2d 519 (
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM: &=
nbsp; Sierra
L. Alberts, Esq.
Petitioner: = Leslie C. Shively, Esq.; Shively & Associates, PC
Permittee: &= nbsp; Jefferson A. Lindsey, Esq.; Lindsey & Lindsey
ORDER ISSUED:
October 21, 2011
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2011 OEA 141, page 142 begins]
STATE OF
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp; &nbs=
p; OF
ENVIRONMENTAL ADJUDICATION
OBJECTION TO THE ISSUANCE OF CONSTRUCTION )
PERMIT APPROVAL NO. L-0366 &nb=
sp; =
&nb=
sp; =
)
LUCE TOWNSHIP REGIONAL SEWER DISTRICT )
_____________________________________________ )&=
nbsp; CAUSE
NO. 10-W-J-4440
Mary Ann
Hardy, Larry W. Blair, Steven Buse, et.
al.,  =
; )
&=
nbsp; Petitioners, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
Luce Township Regional Sewer District, =
&nb=
sp; )
Permittee/Respondent, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Indiana Department of Environmental Management, =
)
Respondent &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND FINAL ORDER
&=
nbsp; This
matter is before the Office of Environmental Adjudication (“OEA”=
; or
“Court”) on summary judgment following a January 21, 2011 Stay
Hearing, on the Petitioners’ Petitions for Administrative Review and =
Stay
of the Indiana Department of Environmental Management’s
(“IDEM”) November 17, 2010 Decision of Approval Permit No. L-03=
66
issued to Luce Township Regional Sewer District for construction of a sanit=
ary
sewer system in Spencer County, Indiana.
&=
nbsp; The
Chief Environmental Law Judge (”ELJ”), having considered the
petitions, record of the proceeding, and summary judgment briefing, now fin=
ds
that judgment may be made upon the record as to whether IDEM, as a matter of
law, properly issued Permit No. L-0366.&nb=
sp;
The ELJ, by substantial evidence, and being duly advised, now makes =
the
following findings of fact and conclusions of law and enters the following
final order:
FINDINGS OF FACT
1. The Indiana Department of Environmental
Management (“IDEM”) issued 327 IAC 3 Construction Permit
Application Plans and Specifications for Luce Township Regional Sewer Distr=
ict,
Division A and Division B, Permit Approval No. L-0366 (the
“Permit”) to the Luce Township Regional Sewer District
(“Permittee”) on November 17, 2010. The Permit authorized the construc=
tion
of a sanitary sewer system (the “Project”). The Division A wastewater collecti=
on
system project will be located in the Town of Richland City and along SR 161
from the Town of Richland City to the intersection with CR 200 North. The Division B wastewater collecti=
on
system project will be located in the town of
[2011 OEA 141, page 143 begins]
2. The Division A project will provide
wastewater collection service to 245 single family homes with an expected
average daily wastewater flow of 51,450 GPD based on 210 GPD per home.
3. The Division B project will provide
wastewater collection services to 553 single family homes with an expected
average daily wastewater flow of 116,130 GPD based on 210 GPD per home. The Division B project will also p=
rovide
service to the
4. The total expected average daily wastew=
ater
flow from the combined Division A and Division B project areas is 168,910 G=
PD.
5. In addition to imposing specific and ge=
neral
conditions, the Permit requires the Project to conform to all provisions of=
327
IAC 3. The Permit specifically
requires:
If construction is located within a floodway, a permit may also be
required from the Department of Natural Resources prior to the start of
construction. It is the
permittee’s responsibility to coordinate with that agency and obtain =
any
required approvals as applicable . . .
Nothing herein shall be construed as guaranteeing that the proposed
sanitary sewer system shall meet the standards, limitations or requirements=
of
this or any other agency of the state or federal government, as this agency=
has
no direct control over the actual construction and/or operation of the prop=
osed
project.
Permit, p. 7, 9.
6. On or about December 2, 2010, Petitions=
for
Administrative Review and Stay were filed by Petitioner Steven Buse, and by
Petitioners Mary Ann Hardy and Larry W. Blair filed a Petition for
Administrative Review and Request for an Administrative Hearing.
7. At the January 21, 2011 Stay Hearing,
Petitioners Mary Ann Hardy and Larry W. Blair did not attend in person or by
counsel, nor did they seek leave from attending. Petitioner Steven Buse did not att=
end in
person but was represented by counsel.&nbs=
p;
The Permittee appeared by counsel, and its witness, Nora Yeager. IDEM appeared by legal counsel and=
by
witness Dale Schnaith.
8. In his Petition, during the stay hearin=
g, and
as referenced in his responsive pleading on summary judgment, Petitioner St=
even
Buse presented testimony on the following issues:
[2011 OEA 141, page 144 begins]
9. During the stay hearing, and referenced=
in
summary judgment briefing, Dale Schnaith, Section Chief of IDEM’s
Facility Construction and Engineering Support Section of the Office of Wate=
r Quality
presented testimony that if the actual number of users was significantly lo=
wer,
then the user number could relate to design flow because it is sized for a
specific number of users. How=
ever,
Mr. Schnaith stated that IDEM prefers and most projects use design flows for
all future users even though the initial number of actual connections may be
less and that it is in the best interest of the community to look at future
projections. It is customary =
and
appropriate for the IDEM to approve designs that include projections for fu=
ture
use. The IDEM approved projec=
tions
for this project of 778 homes, which include future possible users.
10. The use of 210 GPD per household to pro=
ject
the total wastewater flow used for the design is reasonable for a rural com=
munity.
11. On January 24, 2011, this Court issued a
Notice of Proposed Order of Dismissal of Petitioners Mary Ann Hardy and Lar=
ry
W. Blair’s Petition for Administrative Review for failing to attend t=
he
January 21, 2011 Stay Hearing without leave of Court as ordered in the Janu=
ary
4, 2011 Report of Prehearing Conference, Order Continuing Stay Hearing and =
Case
Management Order. A Final Order of Dismissal was issued by this Court on
February 17, 2011, dismissing the Petition for Administrative Review filed =
by Petitioners
Mary Ann Hardy and Larry W. Blair pursuant to I.C. § 4-21-.5-3-24 and =
315
IAC C1-3-8.
12. On January 24, 2011, this Court issued =
an
Order Denying Stay of Permit Approval No. L-0366, issued to Luce Township R=
egional
Sewer District effective January 21, 2011.=
The Court’s February 11, 2011 Findings of Fact, Conclusions of=
Law
and Order Denying Stay are a part of the Court’s record and are
incorporated herein.
13. Respondent, IDEM filed its Motion for S=
ummary
Judgment and Memorandum of Law in Support of its Motion on July 29, 2011. Permittee/Respondent filed its
concurrence with IDEM. Petiti=
oner,
Steven Buse filed his opposition on August 29, 2011 to the Motion for Summa=
ry
Judgment. IDEM filed its repl=
y on
September 9, 2011. No Proposed
Findings of Fact, Conclusions of Law and Orders were filed.
[2011 OEA 141, page 145 begins]
CONCLUSIONS OF LAW
1. IDEM is authorized to implement and enf=
orce
specified
2. This is a Final Order issued pursuant t=
o I.C.
§ 4-21-.5-3-27. Findings=
of
Fact that may be construed as Conclusions of Law that may be construed as
Findings of Fact are so deemed.
3. This Court must apply a de novo standard of review to this proceeding when determining =
the
facts at issue. 315 IAC 1-3-1=
0(b); Indiana 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 (
4.<=
span
style=3D'font:7.0pt "Times New Roman"'> Respondents seek summary judgment, =
based
on Petitioner Steven Buse’s failure to raise any valid reason as to w=
hy
IDEM should not have issued the Permit.&nb=
sp;
The OEA may enter judgment for a party if it finds that “the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits and testimony, if any, show that a genuine iss=
ue
as to any material fact does not exist and that the moving party is entitle=
d to
judgment 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. , 585 N.E=
.2d
700, 703 - 704 (Ind. Ct. App. 1992).
Further, the Indiana Tax C=
ourt
in Allied Collection Service Inc. v=
. Ind.
Dept. of State Revenue (Cause No. 49T10-0608-TA-76, December 22, 2008)
stated, “If there is any doubt when ruling on a motion (or
motions) for summary judgment as to what conclusion the Court could reach, =
the
Court will conclude that summary judgment is improper, given that it is nei=
ther
a substitute for trial nor a means for resolving factual
[2011 OEA 141, page 146 begins]
disputes =
or
conflicting inferences following from undisputed facts. See Owens Corning
Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (
<=
span
style=3D'mso-list:Ignore'>5.&n=
bsp;
To prevail on the merits of this case, Petitioner m=
ust
show that the applicable regulations for construction of sanitary sewers st=
ated
in 327 IAC 3 were not met in the Permit issued to Permittee. OEA reviews IDEM’s decisions=
to
determine whether IDEM acted in conformity with controlling statutes and
regulations. See, e.g., In re: Objection to Issuance of Section 401 Water Quality
Certification COE ID No. 198800247 Conagra Soybean Processing Co., 1998 WL 918585, at *3, OEA Cause =
No.
98-W-J-2052 (Nov. 12, 1988).
Allegations that fail to raise any issue concerning compliance with
controlling legal requirements fail to state a valid claim. In
re: Objections to Issuance of
Public Water Supply Construction Permit No. WS-2924 Issued to the City of <=
st1:place
w:st=3D"on">
<=
span
style=3D'mso-list:Ignore'>6.&n=
bsp;
Petitioner’s timely-filed opposition to the
Project is based on the fact that the actual number of homes to be connecte=
d is
less than the number of homes cited by the Permittee in its application.
<= span style=3D'mso-list:Ignore'>7.&n= bsp; Petitioner further opposes the Project based on the fact that the number of gallons per day used by the Permittee in its application is less than the number of gallons per day cited in a financial report submitted to IDEM. Evi= dence submitted in this cause provides substantial evidence that estimated gallons per day used in the application is projected use per household and is reasonable for a rural community. &nb= sp; No genuine issue of material fact exists that the permitted gallon p= er day capacity complied with 327 IAC 3; thus, Respondents are entitled to summary judgment.
<=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
Petitioner’s opposition to the Project, based=
on
the financial information submitted for purpose of determining the rate to
users was based on a different figure, is not supported by
[2011 OEA 141, page 147 begins]
2004 = OEA 99, 102. No genuine issue of mate= rial fact exists that lack of considering user rates does not bar OEA’s determination that the Project as permitted complied with 327 IAC 3; thus, Respondents are entitled to summary judgment.
<=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
Petitioner’s opposition to the Permit, based =
on
the Permittee’s requirements to obtain approvals, including a
Construction in a Floodway Permit from the Indiana Department of Natural
Resources (“DNR”), is not supported by
<=
span
style=3D'mso-list:Ignore'>10.&=
nbsp; Petitioner’s
testimony and pleadings show that Petitioner also opposes the Project based=
on
the matter of Steven Buse et al. v.
Trustees, Luce Township Regional Sewer District pending before the Spen=
cer
Circuit Court under Cause No. 74C01-1004-PL-0220 and the interlocutory appe=
al
of that matter currently pending before the Indiana Court of Appeals under
Cause No. 74A05-1009-PL-590. =
The
Indiana Court of Appeals’ August 9, 2011 decision reversed and remand=
ed
the trial court’s decision, focusing primarily on whether
petitioners’ claims against the sewer district concerning property
rights, easements and fees was a public lawsuit. 953 N.E.2d 519 (
<= span style=3D'mso-list:Ignore'>11.&= nbsp; As a matter of law, no genuine issue of material fact exists, by substantial evidence, that the claims stated by Petitioner Steven Buse do not authorize this Court of invalidate IDEM’s issuance of the Permit to Permittee/Respondent. Petitioner’s request to invalidate construction permit number L-0366 issued to Permittee should be and is denied.
FINAL ORDER
 =
; For all of the foregoing reasons, <=
b>IT
IS THEREFORE ORDERED, ADJUDGED AND DECREED that Respondent, Indiana
Department of Environmental Management’s Motion for Summary Judgment =
is GRANTED. Petitioner Steven Buse’s=
Petition
for Administrative Review of Permit No. L-0366, issued to Luce Township
Regional Sewer District., for a sanitary sewer extension is DENIED.
[2011 OEA 141, page 148 begins]
You are furth=
er
advised that, pursuant to I.C. § 4-21.5-5, et seq., this Final Order is subject to judicial review if so
provided under I.C. § 4-21.5-5, et
seq., and only if it is timely filed with a civil court of competent
jurisdiction within thirty (30) days after the date this notice is served.<=
/span>
 =
; IT
IS SO ORDERED this 21st day of October, 2011 in
Hon. Mary L. Davidsen
Chief Environmental Law Judge
[2011 OEA 141: end of decision]
2011
OEA 141 in .doc format
2011
OEA 141 in .pdf format
Objection to Issuance of Construction Permit Approval No. L-0366
Luce Township Regional Sewer District
2011 OEA 141, (10-W-J-4440)