Topics:

Objection to the Denial of WT3 Drinking Water Operator Exam

James E. Pence

Ashley, Steuben County= , Indiana

2010 OEA 183, (10-W-J-4425)

[2010 OEA 1= 83, page 183 begins]

OFFICIAL SHORT CITATION NAME: When referring to 2010 OEA= 183 cite this case as

<= /span>James E. Pence, 2010 OEA 183.

TOPICS:

hearing

drinking water

exam

late

application

postmarked

327 IAC 8-12-4(b)

I.C. § 13-18-11-6.5(= c)

PRESIDING JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM: = April Lashbrook, Esq.

Petitioner: = James E. Pence, pro se

ORDER ISSUED:

November 4, 2010

INDEX CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

[2010 OEA 1= 83, page 184 begins]

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

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

COUNTY OF MARION &= nbsp; )<= /p>

IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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

OBJECTION TO THE DENIAL O= F &= nbsp; &nbs= p; )

WT3 DRINKING WATER OPERAT= OR EXAM ) &= nbsp;

JAMES E. PENCE &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; CAUSE NO. 10-W-J-4425

ASHLEY, STEUBEN COUNTY, I= NDIANA &= nbsp; )

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

<= /span>This matter came before the Office of Environmental Adjudication (the “OEA” or the “Court”) on the hearing on the petition for review filed by James E. Pence (the “Petitioner”); and the Court, having read the pleadings and heard the evidence, enters the followi= ng findings of fact, conclusions of law and final order. The Environmental Law Judge (ELJ) = finds in favor of the Indiana Department of Environmental Management (IDEM).

FINDINGS OF FACT

1. &n= bsp; On September 22, 2010, James E. Pence, the Petition= er in this matter, submitted an application to the IDEM to take the examination for WT3 Water Works Operator Certification scheduled for November 3, 2010.<= /p>

&nb= sp;

2. &n= bsp; The IDEM had provided notice to the public, on its website on or around May 20, 2010 and through written notices on or around = July 16, 2010, that the examination was scheduled for November 4, 2010.

&nb= sp;

3. &n= bsp; The IDEM notified the Petitioner on October 7, 2010 that due to his failure to submit his application in a timely manner, his application to take the WT3 exam was denied.

4. &n= bsp; On October 21, 2010, the Petitioner filed his petit= ion for review of the denial of his application to take the WT3 exam on Novembe= r 4, 2010.

5. &n= bsp; A hearing was held on November 3, 2010.

6. &n= bsp; The Petitioner had been previously certified. His certification expired on June = 30, 2007. Due to his deployment b= y the Indiana National Guard, he did not renew his certification.

Applicable Law

[2010 OEA 1= 83, page 185 begins]<= /p>

= ;

= ; The Office of Environmental Adjudication (“OEA”) has jurisdiction o= ver the decisions of the Commissioner of the IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7-3. The Petitioner has the burden of p= roving that the IDEM failed to consistently apply statutory and regulatory requirements.

327 IAC 8-12-4(b) states:

<= span style=3D'mso-list:Ignore'>(b)&= nbsp; A person wishing to be examined for wat= er treatment plant or water distribution system certification shall fulfill the following requirements:

<= span style=3D'mso-list:Ignore'>(1)&= nbsp; &nbs= p; Complete an application on a form appro= ved by the commissioner that:

<= span style=3D'mso-list:Ignore'>(A)&= nbsp; contains true and accurate information = to the best of the applicant's knowledge; and

<= span style=3D'mso-list:Ignore'>(B)&= nbsp; is free of omissions and misrepresentations, either of which may result in rejection of the applicat= ion or revocation of any certificate previously granted.

<= span style=3D'mso-list:Ignore'>(2)&= nbsp; &nbs= p; Submit a completed application, with the necessary fee, to the commissioner postmarked not later than forty-five (45) days preceding the date of the examination.

I.C. § 13-18-11-6.5(c) states: ̶= 0;A water treatment plant operator or a water distribution system operator who fails to renew a certificate within one (1) year after the date the certifi= cate expires may not receive a renewal certificate without reexamination.”=

CONCLUSIONS OF LAW

1. &n= bsp; 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.

&n= bsp;

2.&n= bsp; Findings of fact that may be construed as conclusio= ns of law and conclusions of law that may be construed as findings of fact are= so deemed.

3. &n= bsp; In this instance, the Petitioner was required to ta= ke the examination because he did not renew his certification within one of ye= ar of the expiration date.

4. &n= bsp; Applications to take the WT3 exam must be postmarke= d at least 45 days prior to the examination date. In this case, the application must= be postmarked by September 20, 2010. The Petitioner’s application was postmarked September 22, 2010= .

5. &n= bsp; The Petitioner has failed to show that the IDEMR= 17;s action was not in compliance with the applicable statutes and regulations. =

<= /p>

[2010 OEA 1= 83, page 186 begins]

FINAL ORDER

= ; AND THE COURT, being duly advised, hereby ORDERS, JUDGES AND DECREES that the Petitioner failed to meet his burden of proof. Judgment is entered fo= r the Indiana Department of Environmental Management. The Petition for Review is 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.&nb= sp; 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 4th day of November, 2010 in Indianapolis, IN.

Hon. Catherine Gibbs

Environmental Law Judg= e

[2010 OEA 183: end of decision]

= 2010 OEA 183 in .doc format

= 2010 OEA 183 in .pdf format

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