Objection to the Issuance of Solid Waste Permit Renewal
Richmond Sanitary District
James & Patricia Butcher, Petitioners; Richmond Sanitary District, Permittee/Respondent;
Indiana Department of Environmental Management, Respondent
2006 OEA 12 (05-S-J-3611)
[2006 OEA 12, page 12 begins]
OFFICIAL SHORT CITATION NAME: When referring
to 2006 OEA 12, cite this case as
Richmond Sanitary District SWPR, 2006
OEA 12.
TOPICS:
land application
biosolids
bedrock
total coliforms
fecal coliforms
burden of proof
PRESIDING JUDGE:
Gibbs
PARTY REPRESENTATIVES:
Petitioners: James &
Patricia Butcher, pro se
Permittee/Respondent: Kenyatta Cox
IDEM: Kathleen Mills
ORDER ISSUED:
July 12, 2006
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2006 OEA 12, page 13 begins]
STATE OF INDIANA ) BEFORE
THE INDIANA OFFICE OF
) ENVIRONMENTAL
ADJUDICATION
COUNTY OF MARION )
IN THE MATTER OF: )
)
OBJECTION TO THE ISSUANCE OF )
SOLID WASTE PERMIT RENEWAL )
RICHMOND SANITARY DISTRICT )
_________________________________________ ) CAUSE
NO. 05-S-J-3611
)
James & Patricia Butcher )
Petitioners )
)
Richmond Sanitary District )
Permittee/Respondent )
)
Indiana Department of Environmental )
Management )
Respondent )
FINDINGS OF
FACT, CONCLUSIONS
OF LAW AND
FINAL ORDER
This constitutes notice of a Final Order. This matter
having come before the Court on the final hearing of the petition for
administrative review by James Butcher, held on June 21, 2006; and the
Environmental Law Judge, being duly advised and having considered the pleadings
and evidence presented at the hearing, makes the following findings of fact,
conclusions of law and Order:
Findings of Fact
- On September 19, 2005, the
Indiana Department of Environmental Management (the “IDEM”) issued Hybrid
Biosolids Land Application Permit Renewal No. IN LA 000111 (the “Permit”)
to the Richmond Sanitary District (the “Permittee”). This Permit allows
the Permittee to land apply to certain properties, including, but not
limited to, those properties identified as FAW24AB29 (F & A Webster
Farms, Inc.) and FAW 23A17 (F & A Webster Farms, Inc.) (the
“Properties”) on Respondent’s Exhibit A.
- On October 7, 2005, James and Patricia Butcher filed objections to the Permit, objecting to the
application of biosolids to the Properties. The Butchers contend that the application of biosolids to these Properties leads to the contamination of
their drinking water well. The Butchers live at 4205 N. Abington Road, Brownsville, Indiana. The Properties are located across the street from the
Butchers’ property. The Butchers’ property is also located next to the Whitewater River.
[2006 OEA 12, page 14 begins]
- Mr. James Butcher testified
that on numerous occasions, he has taken samples of his drinking water and
has the sample analyzed for total coliform (TC) and for fecal coliform
(FC).
- Respondent’s Exhibit C shows
that on two occasions - July 19, 2001 and August 9, 2001- the samples
showed contamination above detection limits for both TC and FC.
Contamination above safe drinking water limits for fecal coliform occurred
on one of these occasions, July 19, 2001. On four other occasions - June
28, 2001, November 1, 2001, May 23, 2002 and August 28, 2003 – the samples
showed contamination of TC at above detection limits, but fecal coliform
was not detected.
- On the one occasion that fecal
coliform was above safe drinking water levels, on July 19, 2001, the Whitewater River had flooded the Petitioner’s property.
- Total coliform includes most
organic matter, including, soil, grass, human and animal waste. Fecal
coliform result from human and animal waste.
- If the application of the
biosolids were the source of the contamination to Mr. Butcher’s well,
fecal coliform would also be present in the samples.
- The IDEM inspected the land
application activities at the Properties in August 2003 and noted no
violations of the Permit in effect at that time.
- There is a minimum of twenty
(20) inches of soil above the bedrock at these Properties.
Conclusions of Law
- 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 IC
4-21.5-7-3.
- This office must apply a de
novo standard of review to this proceeding when determining the facts
at issue. Indiana Dept. of Natural Resources v. United Refuse
Co., Inc., 615 N.E.2d 100 (Ind. 1993). Findings of fact must be based
exclusively on the evidence presented to the ELJ, and deference to the
agency’s initial factual determination is not allowed. Id.;
I.C. 4-21.5-3-27(d). “De novo review” means that:
all are to be determined
anew, based solely upon the evidence adduced at that hearing and independent of
any previous findings.
Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247 (Ind.Ct.App. 1981).
- Pursuant to IND. CODE § 4-21.5-3-14 and IND. CODE § 4-21.5-3-27(d), the person seeking
review of a permit has the burden of presenting substantial and reliable
evidence proving that the IDEM improperly issued the permit in question.
[2006 OEA 12, page 15 begins]
- The Butchers have failed to
meet this burden. They did not present sufficient evidence to show that
the source of contamination in their drinking water well was the land
application of biosolids to the Properties. The presence of total
coliform, in and of itself, is not sufficient to show that that biosolids
were the source of the contamination. The absence of fecal coliform in
all but one sample is evidence that contradicts the Butchers’ contentions
that the biosolids are the source of the contamination. The one sample
that showed the presence of fecal coliform was after the nearby river
flooded. The fecal coliform on that occasion could have been from any
number of sources, including the Butchers’ own septic system.
- The Butchers also failed to
present substantial evidence that there was less than twenty (20) inches
of soil above the bedrock at the Properties.
Final
Order
AND THE COURT, being duly
advised, hereby ORDERS, JUDGES AND DECREES that the Petitioner has not
met its burden of proof in this matter. The Permit was properly issued. The
Petitioner’s objections to the issuance of the Permit are dismissed.
You are hereby
further notified that pursuant to provisions of ind. code §
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 IC 4-21.5.
Pursuant to IC 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
within thirty (30) days after the date this notice is served.
IT IS SO ORDERED THIS 12th day of July, 2006.
Catherine
Gibbs
Environmental
Law Judge
[2006 OEA 12: end of opinion]
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