Objections to the Issuance of NPDES General Permit
to the City of Angola and Tri-State University, Stueben County
2006 OEA 8 (03-W-J-3205)
[2006 OEA 8, page 8 begins]
Angola and Tri-State University NPDES Objections, 2006 OEA 8.
TOPICS:
dismissal
rules
water
general permit
permit by rule
NPDES
moot
PRESIDING JUDGE:
Gibbs
PARTY REPRESENTATIVES:
Permittees: Beth Beech: Tri-State University; Kim Shoup: City of Angola
Petitioner: Thomas Neltner
IDEM: Sierra Cutts
ORDER ISSUED:
March 30, 2006
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2006 OEA 8, page 9 begins]
STATE OF INDIANA ) BEFORE THE INDIANA OFFICE OF
) ENVIRONMENTAL ADJUDICATION
COUNTY OF MARION )
IN THE MATTER OF: )
)
OBJECTIONS TO THE ISSUANCE OF )
NPDES GENERAL PERMIT TO THE CITY )
OF ANGOLA AND TRI-STATE UNIVERSITY )
STUEBEN COUNTY )
_________________________________________ ) CAUSE NO. 03-W-J-3205
Kathy and Bruce McCoy, )
Petitioners, )
)
City of Angola, Tri-State University )
Respondents/Permittees )
)
Indiana Department of Environmental Management )
Respondent. )
AND FINAL ORDER
This matter having come before the Court on the Indiana Department of Environmental Management’s (“IDEM”) Motion to Dismiss; and the Environmental Law Judge having considered the petitions, motions, briefs, responses and replies of the parties and being duly advised in the premises, now makes the following findings of fact, conclusions of law and Order:
1. The City of Angola (the “City”) and Tri-State University (“Tri-State”) submitted a Notice of Intent for a NPDES general permit under 327 IAC 15-13 to the IDEM.
2. Pursuant to 327 IAC 15-13-6(a)(4), notice of the Notice of Intent was published in the local newspaper. Bruce and Kathy McCoy (the “McCoys”) jointly filed a Petition for Review objecting to the issuance of a general permit. Gretchen Weicht and Larry Watkins also filed a joint Petition for Review objecting to the issuance of the general permit.[1] The petitions for administrative review were timely filed.[2]
[2006 OEA 8, page 10 begins]
3. On January 20, 2004, the McCoys, by counsel, filed their Amended Petition for Administrative Review. The McCoys raise 2 reasons for their request for administrative review. The first reason is that “General Permit Rule for storm water run-off with municipal separate storm sewer system conveyances at 327 IAC 15-13 is invalid pursuant to 327 IAC 15-2-10.”[3] The second reason is “IDEM acted arbitrarily and capriciously by not considering or acting on petitioners demand for an individual NPDES permit for the City of Angola.”[4]
4. On August 31, 2004, the IDEM filed its Motion to Dismiss that portion of the Amended Petition that challenges the validity of 327 IAC 15-2-10. IDEM’s argument alleges that the Office of Environmental Adjudication does not have subject matter jurisdiction to hear any argument based on the invalidity of a regulation. The McCoys filed their Response to Indiana Department of Environmental Management’s Motion to Dismiss on October 28, 2004. Proposed Findings of Fact, Conclusions of Law and Order were filed on January 7, 2005. Oral argument was held on March 8, 2005. The presiding Environmental Law Judge (the “ELJ”) issued Findings of Fact, Conclusions of Law and Order granting IDEM’s Motion to Dismiss on March 15, 2005. The Petitioners did not request judicial review of this order.
5. On January 7, 2005, the Petitioners filed a Motion to Order IDEM to Accept or Reject Petition for Individual Permit.
6. On February 21, 2005, the IDEM denied the Petitioners’ request that the City and Tri-State be required to apply for an individual MS4 permit instead of being allowed to discharge under a general permit.
7. On January 12, 2006, the IDEM filed its Motion to Dismiss Petition for Review. The Petitioners have not filed any response to the Motion.
1. The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner of the Indiana Department of Environmental Management (“IDEM”) and the parties to this controversy pursuant to Ind. Code § 4-21.5-7, et seq.
2. 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.
[2006 OEA 8, page 11 begins]
3. “In reviewing a Rule 12(B)(6) motion, a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. This Court views the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party.” Huffman v. Indiana Office of Environmental Adjudication, et al., 811 N.E.2d 806, 814 (Ind. 2004).
4. “When a dispositive issue in a case has been resolved in such as way as to render it unnecessary to decide the question involved, the case will be dismissed.” Travelers Indem. Co. v. P.R. Mallory & Co., 772 NE.2d 479, 484 (Ind. App. 2002). A case is deemed moot when there is no effective relief that can be rendered to the parties by the Court. A.D. v. State, 736 N.E.2d 1274, 1276 (Ind. App. 2000). In this case, the Petitioners only remaining request for relief is that the IDEM act on the Petitioners’ demand that the City and Tri-State be required to operate under an individual NPDES permit rather than allow the permittees to operate under a general permit. The Petitioners make this request in the Amended Petition and again in the Motion to Order IDEM to Accept or Reject Petition for Individual Permit. As the IDEM has responded to and denied this request, the Petitioners have received the relief they seek, that is, that the IDEM make a decision. There is no other remedy available to the Petitioners.
5. This case is moot as the remaining issue raised by the Petitioners has been addressed and resolved by the IDEM’s action on February 21, 2005.
ORDER
AND THE COURT, being duly advised, GRANTS the IDEM’s Motion to Dismiss and ORDERS, ADJUDGES AND DECREES that this matter is 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 30th day of March, 2006.
____________________________________
Catherine Gibbs
Environmental Law Judge
[2006 OEA 8: end of opinion]
[1] Gretchen Weicht and Larry Watkins were dismissed from this proceeding on February 8, 2005 on their motion.
[2] The Court cannot independently determine from the Court’s file whether the Petitions were timely filed. However, the IDEM, in its Proposed Findings of Fact, Conclusions of Law and Order, stipulates that this is so. The Court finds no evidence to the contrary. Therefore, the Court finds that the Petitions were, in fact, timely filed.
[3] See Amended Petition for Administrative Review, filed January 20, 2004, page 1.
[4] See Amended Petition for Administrative Review, filed January 20, 2004, page 3.
[2006 OEA 8: end of opinion]
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