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Objection to the Issuance of NPDES Permit No. IN0022373
Town of
2009 OEA 16, (07-W-J-3983)
[2009 OEA 1= 6, page 16 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA 16, cite this case = as &= nbsp;
Town
of
TOPICS= : =
Final hearing
NPDES
waters of the state
oxbow lake
lake
waste stabilization pond
phosphorus
exemption
built for reduction or control of pollution
I.C. § 13-11-2-265(b)(3)
Presiding Environmental Law Judge=
:
Catherine Gibbs
Party representatives:
IDEM:  = ; Nancy Holloran, Esq.
Petitioner:  = ; S. Curtis DeVoe, Esq., Amy E. Romig, Esq.;
&= nbsp; Plews Shadley Racher & Braun LLP
Order issued:
March 20= , 2009
Index category:
Land
Further case activity:
[none]
[2009 OEA 1= 6, page 17 begins]
STATE OF
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: = ; &n= bsp;  = ; &n= bsp;  = ; )
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
OBJ= ECTION TO ISSUANCE OF NPDES &n= bsp;  = ; )
PERMIT = NO. IN0022373 &nbs= p; &= nbsp; &nbs= p; &= nbsp; )<= span style=3D'mso-tab-count:1'> &= nbsp;
TOWN OF
WAS= TEWATER TREATMENT PLANT &nbs= p; &= nbsp; &nbs= p; )
<=
b>FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER
<=
b>DENYING
PETITIONER’S PETITION FOR ADMINISTRATIVE REVIEW
This matter comes before =
the
Office of Environmental Adjudication (“OEA”) on the Petition for
Administrative Review and Request for Stay filed by Petitioner, Town of
FINDINGS OF FACT
1.&n=
bsp;
2.&n=
bsp;
The waste stabilization pond is an “oxbow
lake” to the West Fork of the
3.&n=
bsp;
Sometime in the late 1980’s or early
1990’s,
4.&n=
bsp;
5.&n=
bsp;
In 2002,
6.&n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) issued a new NPDES permit for
7.&n=
bsp;
Between 2002 and 2004,
[2009 OEA 1= 6, page 18 begins]
8.&n= bsp; Upon the completion of the new WWTP, the 2002 Permit required monitoring for phosphorus and established effluent limitations for phosphorous at 1.0 mg/L.
9.&n=
bsp;
On August 22, 2007, IDEM issued a renewal NPDES per=
mit
for
10.&=
nbsp; Both
the 2002 and 2007 Permits noted the receiving water of the outfall consists=
of
an “unnamed tributary to an oxbow lake to the West Fork of the
11.&=
nbsp; On
September 10, 2007,
12.&= nbsp; A final hearing was held on March 10, 2009.
Conclusions
of Law
1. The Office of Environmental Adjudication (“OEA”) has jurisdiction o= ver the decisions of the Commissioner of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.
2. This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. Findings of fact that may be const= rued as conclusions of law and conclusions of law that may be construed as findi= ngs 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.
all are to = be determined anew, based solely upon the evidence adduced at that hearing and independent of any previous findings.
Grisell v=
.
[2009 OEA 1= 6, page 19 begins]
description=
s may
be associated with the definition of this intermediate test.” Matter
of
<=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp;
the accumulations of water, surface and
underground, natural and artificial, public and private; or
<=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp;
a part of the accumulations of water; t=
hat
are wholly or partially within, flow through, or border upon
(b)
The term “waters” does not include:
<=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp;
&=
nbsp; an
exempt isolated wetland;
<=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp;
&=
nbsp; a
private pond; or
<=
span
style=3D'mso-list:Ignore'>(3)&=
nbsp;
&=
nbsp; an
off-stream pond, reservoir, wetland, or other facility built for reduction =
or
control of pollution or cooling of water before discharge. I.C. §
13-11-2-265.
<=
span
style=3D'mso-list:Ignore'>8.&n=
bsp;
The terms “lake” and
“reservoir” are not defined in 327 IAC 5 or I.C. §<=
span
style=3D'font-family:TimesNewRoman;mso-bidi-font-family:TimesNewRoman'>
13-11-2.
<=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
The NPDES permit system is a national
permit program for the discharge of pollutants and imposing and enforcing
pretreatment requirements by the EPA and authorized states under the Clean
Water Act. EPA decisions prov=
ide
persuasive authority useful for defining terms undefined by
<=
span
style=3D'mso-list:Ignore'>10.&=
nbsp; The
EPA has dealt with the definition of “lake”. In In
the Matter of: Mr. C.W. Smith, Mr. Grady Smith, & Smith’s Lake
Corporation, 2004 EPA ALJ LEXIS 128 (United States Environmental Protec=
tion
Agency, Office of Administrative Law Judges, July 15, 2004), the decision
states “However, neither the term "lake" nor "pond&quo=
t;
is defined in the EPA's regulations. The Corps of Engineers has defined the
term "lake" in its regulations governing Section 404 permits, at =
33
C.F.R. Part 323. The term lake
means a standing body of open water that occurs in a natural depression fed=
by
one or more streams from which a stream may flow, that occurs due to the
widening or natural blockage or cutoff of a river or stream,
[2009 OEA 1= 6, page 20 begins]
or that occurs in an isolated natural depression =
that
is not a part of a surface river or stream. The term also includes a standing =
body of
open water created by artificially blocking or restricting the flow of a ri=
ver,
stream, or tidal area. As use=
d in
this regulation, the term does not include artificial lakes or ponds create=
d by
excavating and/or diking dry land to collect and retain water for such purp=
oses
as stock watering, irrigation, settling basins, cooling, or rice
growing.” 33 C.F.R. 323=
.2(b).
<=
span
style=3D'mso-list:Ignore'>11.&=
nbsp; Under
the definition of lake as set out in 33 C.F.R. 323.2(b), the oxbow lake is a
standing body of water that occurred due to the natural cutoff of the West =
Fork
of the White River.
<=
span
style=3D'mso-list:Ignore'>12.&=
nbsp; Further,
the oxbow lake does not fall within an exemption under I.C. §
13-11-2-265(b). The oxbow lak=
e was
and is a naturally occurring lake that Bloomfield was approved to use as a =
treatment
facility in 1959; and, while the lake was used for the reduction of polluti=
on
and modified to make it more effective in that capacity, it was not built
expressly for the purpose of reducing or controlling pollution. The waste stabilization pond start=
ed as
a natural lake and reverted to that purpose once the new WWTP was built.
<=
span
style=3D'mso-list:Ignore'>13.&=
nbsp; The
phosphorous limitation contained in 327 IAC 5-10-4(a)(4) applies to
Final Ord=
er
IT IS THEREFORE ORDERED, =
ADJUDGED
AND DECREED that the Petitioner, Town of
You are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7.5, the Office of Environmental Adjudicat= ion 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 I.C. § 4-21.5. Pursuant to I.C. &sec= t; 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely on= ly 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 th=
is
20th day of March, 2009 in
Hon. Catherine Gibbs
Environmental Law Judge
[2009 = OEA 16: end of decision]
2009 OEA 16 in .doc format
2009 OEA 16 in .pdf format
Objection to the Issuance of NPDES Permit No. IN0022373
Town of
2009 OEA 16, (07-W-J-3983)