MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_01CC31BC.78049280" This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer. ------=_NextPart_01CC31BC.78049280 Content-Location: file:///C:/2D7AB0D4/0418112011OEA58TwinLakesRegionalSewerDistrict.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii"
Objection to Issuance of
Construction Application for Wastewater Collection
Permit Approval No. 19800=
Big
2011 OEA 58, (10-W-J-4438=
)
[2011 OEA 58, page 58 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2011 OEA 58 cite this case as
&=
nbsp; Twin Lakes Regional Sewer District=
, 2011
OEA 58.
TOPICS:
wastewater
collection system
upgrade wast=
ewater
treatment plant
Construction
Application
septic syste=
m
cost
afforded
permit appro=
val
letter
postmark
date
Prehearing
Conference
complete cop=
y of
agency action
aggrieved or
adversely affected
copy of peti=
tion
sent to all parties
portions of =
permit
to which objecting
Motion for S=
ummary
Judgment
Motion to Di=
smiss
untimely fil=
ed
incomplete p=
etition
failure to c=
omply
with court orders
dismissal
I.C. §
4-21.5-3-1(f)
I.C. §
4-21.5-3-7(a)
I.C. §
4-21.5-3-23
I.C. §
4-21.5-3-24
I.C. § =
13-15-6,
et seq.
315 IAC 1-3-=
2(b)
327 IAC 3
Tr. R. 56
La Oasis, 2009 OEA 1
Herring, 2008 OEA 7
Murphy Oil, 2004 OEA 51
Suverkup, 2004 OEA 48
Grahn, 2004 OEA 40
Highway 6, 2004 OEA 1
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM:  = ; Sierra L. Alberts, Esq.
Petitioners: &nbs= p; Woodrow Smith, pro se; (Elson’s Land Corp., LLC); Timothy L. Elson &
&nbs= p; &= nbsp; Nicholas K. Kile, Esq.; Barnes & Thornburg LLP
Permittee: = Donald J. Tribbett, Esq.; Tribbett Law Office
&n=
bsp; L.
Dowal Dellinger, Esq.; Dellinger,
Dellinger & Smith
ORDER ISSUED:
April 18, 2011
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2011 OEA 58, page 59 begins]
STATE OF
) =
&nb=
sp; OF
ENVIRONMENTAL ADJUDICATION
IN THE MATTE=
R OF: &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp;
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
OBJECTION TO THE ISSUANCE OF CONSTRUCTION =
)
APPLICATION FOR WASTEWATER COLLECTION &=
nbsp; )
PERMIT APPROVAL NO. 19800 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp;
BIG
_____________________________________________________ ) CAUSE NO. 10-W-J-4438
Elson’s Land Corp., LLC, =
; &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp; )
Petitioner, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
Twin Lakes Regional Sewer District,=
&nb=
sp; =
&nb=
sp; =
)
Permittee/Respondent, &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; )
Indiana Department of Environmental Management, =
&nb=
sp; )
Respondent &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; =
)
 =
; This
matter came before the Office of Environmental Adjudication (“OEAR=
21;
or “Court”) on dispositive motions as to whether Woodrow
Smith’s filings with the Court were a timely or sufficient petition f=
or
administrative review of Indiana Department of Environmental Management per=
mit
19800 issued to Twin Lakes Regional Sewer District
 =
; The
Chief Environmental Law Judge (“ELJ”), having considered the
petitions, evidence, and pleadings of the parties, now finds that judgment =
may
be made upon the record. The =
Chief
ELJ, by substantial evidence, and being duly advised, now makes the followi=
ng
findings of fact and conclusions of law and enters the following Final
Order:
Findings
of Fact
1.&n=
bsp;
On
November 10, 2010, the Indiana Department of Environmental Management
(“IDEM”) issued Permit Approval No. 19800 (“Permit”=
) to
the Twin Lakes Regional Sewer District (“Permittee”) for
construction of a wastewater collection system near the
2.&n=
bsp;
On
November 30, 2010, Elson’s Land Corp., LLC (“Petitioner” =
or
“Elson”), by Manager Timothy L. Elson, filed a Petition for
Administrative Review and request for Stay of the Permit.
[2011 OEA 58, page 60 begins]
3.&n=
bsp;
On
December 10, 2010, the Court issued an Order Scheduling Prehearing Conferen=
ce
(for January 3, 2011, 1:00 PM, E.S.T.) and Stay Hearing (January 20, 2011, =
9:00
AM, E.S.T.).
4. After
issuing the December 10, 2010 Order, the Court received a letter from Woodr=
ow
Smith, postmarked and dated December 9, 2010.[1] Woodrow Smith’s December 9, =
2010
letter stated,
This information I received 12-1-10 means nothing (letter dated 11-=
10-10). What Twin Lakes Regional Sewer Dis=
trict
is trying to do is a bunch of crap.
What kind of pay-off is your department receiving from
Why is the runoff from the farmers up the Tippecanoe
Don’t you people realize that we are still in a recession and=
the
cost passed on to the residents is out of line and cannot be afforded by a =
lot
of the residents?
Woodrow Smith’s December 9, 2010 letter included a copy of the
first page of the seven-page permit approval letter sent from IDEM to the
Permittee, which letter references the Permittee’s name, address, and=
the
Permit number. Woodrow
Smith’s December 9, 2010 letter contained no information indicating it
was sent to anyone other than the Court.
5. On December 16, 2010, the Court issued a
Notice of Incomplete Filing and Order to Supplement Petition (“Order =
to
Supplement”), addressed to all parties and to Woodrow Smith[2],
referencing Woodrow Smith’s December 9, 2010 letter. Although the remainder of the Dece=
mber
16, 2010 Order to Supplement erroneously referred to Mr. Wilson, the Order =
to
Supplement advised,
This matter is set for Prehearing Conference on the Petition for
Administrative Review filed by Petitioner Elson Land Corp., LLC, to be held=
on January 3, 2011, 1:00 PM, EST at =
the
Office of Environmental Adjudication,
Petitioner
[2011 OEA 58, page 61 begins]
The Order to Supplement specified the
following information to be supplied:
-
Pe=
titioner
must attach a complete copy of the . . . IDEM action to which the Petitioner
objects. Petitioner
-
The
Petitioner must state how s/he is aggrieved or adversely affected by
IDEM’s action.
-
A =
copy
of the Petition must be sent to all parties, including the IDEM and the
Permittee.
-
The
Petitioner must provide his/her complete address and telephone number.=
u>
-
The
Petitioner must identify which portions of the permit to which s/he is
objecting.
The Order to Supplement further provided,
If the Petitioner fails to provide the requested information, his
Petition will be dismissed and closed.&nbs=
p;
A party must file all documents and pleadings with this office and a=
ll
parties identified on the distribution list. Failure to do so may result in the=
judge
not considering your document or pleading.
6.&n=
bsp;
On
December 27, 2010, the Court received a letter from Woodrow Smith, with an
illegible envelope postmark date, but with a letter date of December 21,
2010. The letter stated, R=
20;How
is Mr. Wilson????” Wood=
row
Smith’s December 27, 2010 letter contained no information indicating =
that
it was sent to anyone other than the Court.
7.&n=
bsp;
On
December 27, 2010, the Court issued a Corrected Notice of Incomplete Filing=
and
Order to Supplement Petition, noting that the Court inferred that Mr.
Smith’s December 27, 2010 letter was meant to point out that the Court
had erred in referring to Mr. Smith as
8.&n=
bsp;
On December 28, 2010, Permittee, by legal
counsel, filed a Motion for Summary Judgment challenging Petitioner
Elson’s Petition for Administrative Review. The Motion for Summary Judgment was
served on all parties and on Woodrow Smith.
[2011 OEA 58, page 62 begins]
9.&n=
bsp;
On
January 3, 2011, 1:00 PM, EST, a Prehearing Conference was held, and attend=
ed
by legal counsel Nicholas K. Kile, Esq. for Petitioner Elson, by legal coun=
sel
Donald J. Tribbett, Esq. for
10.&=
nbsp; At the Prehearing Conference, the atten=
ding
parties had an opportunity to inspect Woodrow Smith’s December 9, 2010
letter. IDEM’s counsel =
orally
moved to dismiss Woodrow Smith’s correspondence as an untimely
petition. The Court’s J=
anuary
4, 2011 Order set a schedule for response to the Permittee’s Motion f=
or
Summary Judgment.
11. The
Court received a letter from Woodrow Smith, postmarked and dated January 4,
2011. Woodrow Smith’s J=
anuary
4, 2011 letter stated,
Page 7 of Permit Approval 19800
1.&n=
bsp;
(W=
oodrow
Smith’s
2.&n=
bsp;
Ho=
meowner
3.&n=
bsp;
Wo=
odrow
E. Smith
4.&n=
bsp;
Th=
ese
homes have poorly functioning septic systems. Not one of these systems has been =
tested
per the White County Health Department.&nb=
sp;
If they have on one seems to have any records.
5.&n=
bsp;
Th=
ese
hearings need to be in the when residents can attend.
6.&n=
bsp;
Re=
ad #4.
7. Letter Dated 12-27-2010.
As Woodrow Smith’s January 4, 2011 letter listed, attached to=
the
letter was a copy of page 7 of 7 of Permit Approval. Page 7 stated Appeals Procedures f=
or
filing with the OEA. Woodrow Smith’s January 4, 2011 letter contained=
no
information indicating that it was sent to anyone other than the Court.
12. The Court received a letter from Woodrow
Smith, postmarked January 4, 2011, letter dated January 3, 2011. Attached to Woodrow Smith’s
January 4, 2011 letter was a copy of the Court’s corrected Order to
Supplement, with the second page containing handwritten circled numbers,
corresponding to the numbers on the items stated in Woodrow Smith’s
letter. Woodrow Smith=
8217;s
January 4, 2011 letter stated,
Here is=
a
copy of the letter dated December 27, 2010, that I received January 3,
2011. And the answers to your
letter.
1.&n=
bsp;
Page 2-top of page-poorly functioni=
ng
septic systems (Permit # 19800).
The septic systems have not been tested. If they have no one can find the
records.
(a handwritten number 1 was written on a copy of the Court’s
corrected Order to Supplement, which stated “Petitioner must attach a
complete copy of the . . . IDEM action to which the Petitioner objects. Petitioner Woodrow Smith may
[2011 OEA 58, page 63 begins]
elect to
notify the Court and other parties that he is relying on the copy of the ID=
EM
action filed with Elson Land Corp.’s petition.”)
2.&n=
bsp;
Do=
n’t
have the income to justify cost of something that is not needed or proven t=
hat
it is needed.
(a
handwritten number 2 was written on a copy of the Court’s corrected O=
rder
to Supplement, which stated, “The Petitioner must state how s/he is
aggrieved or adversely affected by IDEM’s action.”)
3.&n=
bsp;
Yo=
u send
the copies. Why should I pay?=
(a
handwritten number 3 was written on a copy of the Court’s corrected O=
rder
to Supplement, which stated, “A copy of the Petition must be sent to =
all
parties, including the IDEM and the permittee.”
4.&n=
bsp;
(M=
r.
Smith’s
(a
handwritten number 4 was written on a copy of the Court’s corrected O=
rder
to Supplement, which stated, “The Petitioner must provide his/her
complete address and telephone number.”)
5.&n=
bsp;
Se=
e top
of page 2, poorly functioning septic systems. Not proven. Permit Approval #: 19800.
(a handwritten number 5 was written on a copy of the Court’s
corrected Order to Supplement, which stated, “The Petitioner must
identify which portions of the permit to which s/he is objecting.”)
Page 2 of 7 of the Permit, “Water Pollution Treatment/Control
Facility Description” was also included. Mr. Smith’s January 4, 2011 =
letter
contained no information indicating that it was sent to anyone other than t=
he
Court.
13.&=
nbsp; On January 13, 2011, the Court issued an
Order Placing Woodrow E. Smith’s January 4, 2011 Letters on Record and
Order to Parties to Serve Documents Submitted to the Court to all Parties, =
per
I.C. § 4-21.5-3-11(e) and 315 IAC 1-3-3(b)(4) (both quoted in the
Order). In a footnote to the =
fact
that Woodrow Smith was not represented by legal counsel, the Order provided,
“While a party may decide to proceed without legal representation,
“[i]t is well established that pro se litigants are held to the same
standard as are licensed lawyers. =
span>Goosens v. Goosens, 829 N.E.2d 36,=
43 (
14.&=
nbsp; On January 18, 2011, Permittee filed a =
Motion
to Dismiss Woodrow Smith’s Petition for Administrative Review. The Motion to Dismiss contended th=
at
Woodrow Smith’s petition for review was subject to dismissal as untim=
ely
filed, and as insufficient. I=
n its Motion
to Dismiss , Permittee’s counsel avers that IDEM served the permit on
Woodrow Smith. A copy of the =
Permit
in the Court’s record attached to Elson’s Petition for
Administrative Review lists some of those to whom the Permit was sent, and
further provides that “Approximately 888 carbon copies of this letter
were sent to residents and businesses in the project area. A complete list of cc: recipients =
are
available at (a mailing address for IDEM).”
[2011 OEA 58, page 64 begins]
Woodrow Smith was not listed on the documents presented to the Cour=
t.
15. The Court’s January 20, 2011 Case
Management Order Concerning Permittee/Respondent’s Motion to Dismiss
Woodrow Smith’s Petition for Administrative Review scheduled due date=
s of
February 18, 2011 for Responses, March 4, 2011 for Replies. The Order provided until March 11,=
2011,
if parties elected to file proposed findings of fact, conclusions of law and
orders. The January 20, 2011 =
Order
further provided,
A party who fails to comply with this Court’s orders or who f=
ails
to participate in any stage of this proceeding may be held in default or may
have the proceedings dismissed.
16. The Court received a letter from Woodrow
Smith, postmarked and dated January 21, 2011. Mr. Smith’s January 21, 2011
letter stated,
Copies =
of
been sent to everyone on this sheet.
Wish my postage was only 35.7 cents per letter. I like the way your office puts co=
des in
the letters, which only a lawyer would understand. I guess you’re not in your
position to service the people, just big business.
Attached to Woodrow Smith’s January 21, 2011 letter was a cop=
y of
Page 2 of 7 of the Permit, “Water Pollution Treatment/Control Facility
Description”. Woodrow S=
mith
also included the Court’s corrected Order to Supplement, with the sec=
ond
page containing handwritten circled numbers, corresponding to the numbers on
the items stated in Woodrow Smith’s January 4, 2011 letter. A copy of Woodrow Smith’s Ja=
nuary
4, 2011 letter was included, with a handwritten circle around “3. You send the copies. Why should I pay?” Woodrow Smith’s January 21, =
2011
letter contained no information “on this sheet” or elsewhere
indicating that it was sent to anyone other than the Court.
17.&=
nbsp; Court Legal Assistant India Davidson
contacted all the parties by email, seeking confirmation as to whether they
received Woodrow Smith’s January 21, 2011 correspondence. Responses from the other parties
confirmed that they had received Woodrow Smith’s January 21, 2011 cor=
respondence.
18.&=
nbsp; On February 10, 2011, Elson’s Land
Corp, LLC, by Manager Timothy L. Elson, filed a Motion to Withdraw Petition=
for
Administrative Review, granted in the Court’s February 18, 2011 Final
Order Granting Dismissal of Elson’s Land Corp., LLC’s Petition =
for
Review.
19.&=
nbsp; On March 2, 2011, Permittee timely file=
d its
Reply to Woodrow Smith’s “Response” to Motion to Dismiss,=
and
its Proposed Findings of Fact, Conclusions of Law, and Order.
20.&=
nbsp; No further contact was received from
Woodrow Smith, nor did he seek leave from complying with deadlines set by t=
he
Court.
[2011 OEA 58, page 65 begins]
Conclusions
of Law
=
1.&n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
= 2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. 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.
=
3.&n=
bsp;
Both Respondent IDEM and
=
4.&n=
bsp;
In this case, IDEM and
=
5.&n=
bsp;
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue.
[2011 OEA 58, page 66 begins]
=
6.&n=
bsp;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d
806, 809 (Ind. 2004)(appeal of OEA review of NPDES permit); see also
I.C. § 4-21.5-3-27(d). &=
#8220;Standard
of proof generally has been described as a continuum with levels ranging fr=
om a
"preponderance of the evidence test" to a "beyond a reasonab=
le
doubt" test. The "clear and convincing evidence" test is the
intermediate standard, although many varying descriptions may be associated
with the definition of this intermediate test.” Matter of Burke v. City of Anderson, =
612
N.E.2d 559, 565, n.1 (Ind. Ct. App. 1993).=
GasAmerica #47, =
span>2004
OEA 123, 129. See also=
Blue
River Valley, 2005 OEA 1, 11-12.
Objection to the Denial of Excess Liability Trust Fund Claim Mara=
thon
Point Service, ELF # 9=
810570/FID
#1054, New Castle, Henry County, Indiana; Winimac Service, ELF #9609539/FID
#14748, Winimac, Pulaski County, Indiana; HydroTech Consulting and Engineer=
ing,
Inc. (04-F-J-3338), 2005 OEA 26, 41.
7.&n= bsp; Concerning administrative agencies such as OEA, I.C. § 4-21.5-3-7(a)(3) requires that a petition for administrative review = must be filed within fifteen (15) days after the person is given notice of the o= rder or any longer period set by statute. Concerning OEA’s review of IDEM decisions, I.C. § 13-15-6-1(a) requires that a petition for administrative review must be fil= ed by a person aggrieved by the IDEM commissioner’s action no later than fifteen (15) days after being served the Notice provided by IDEM. OEA does not have, and has no discretion to acquire, subject matter jurisdiction of a petition for administrative review filed after the deadlines mandated by statute. Chas. A. Beard Class Room Teacher’s Assn. V. Bd. Of Trustees of Chas. A. Be= ard Memorial School Corp., 668 N.E.2d 1222, 1224 (Ind. 1996); Walker Mfg. Co v. Dep’t of Local Gov’t Finance, 772 N.= E.2d 1, 4-6 (Ind. Tax 2002); In re: Objection to the Issuance of Notic= e of Decision, Murphy Oil USA, Inc., Seymour, Jackson County, Indiana, 2004 = OEA 51, 55; Variance for Open Burning, Herring, 2008 OEA 7; In re: Objection to Denial of Excess Liability Trust Fund Claim, Frank Suverkup, Benzol Cleaning Co., Inc., 2004 OEA 48; Comm’r, Indiana Dep’t of Environmental Management v. Ha= rry Randhawa, La Oasis, Inc, 20= 09 OEA 1. For OEA to have jurisdicti= on over Woodrow Smith’s petition for administrative review, it had to be filed within fifteen days after he received notice of the Permit.
= 8.&n= bsp; I.C. § 4-21.5-3-1 and -2 direct how to determi= ne when a document is filed. A document sent in a postmarked envelope is considered served and filed on its postmark date. I.C. § 4-= 21.5-3-1(f)(2). If the postmark is illegible or otherwise not present, OEA applies the service and filing date for when the document is received by OEA. = I.C. § 4-21.5-3-1(f)(1). OEA = has applied these statutory requirements to the filing dates applied to the par= ties’ filings in this cause.
= 9.&n= bsp; Woodrow Smith’s first filing with the Court on December 9, 2010 states “This information I received 12-1-10 means nothing (letter dated 11-10-10).”&nb= sp; IDEM issued the Permit on November 10, 2010. Permittee’s legal counsel st= ates as argument in its January 18= , 2011
[2011 OEA 58, page 67 begins]
Motio= n to Dismiss Petition for Review, that IDEM served the permit on Woodrow Smith on November 10, 2010. A review beyond the Woodrow Smith’s written filings and in to the Permit in the Court’s record (attached to Elson’s Petition for Administrative Review) shows that the document has a partial l= ist of some of those to whom the Permit was sent, but the partial list does not include Woodrow Smith. While = the Court does not doubt that Permittee’s counsel argues in good faith th= at a copy of the Permit was sent to Woodrow Smith on November 10, 2010, counsel’s argument cannot be relied upon by the Court as substantial evidence. And, the Court̵= 7;s role as fact-finder excludes its ability to serve as investigator to determ= ine when the Permit was sent to Woodrow Smith.= The Court was presented with no further evidence as to the date when Woodrow Smith received notice of the IDEM action he challenged. This Court is required to take as = true all allegations on the face of the complaint, and draw all reasonable inferences in favor of the non-moving party, Woodrow Smith. Thus, Woodrow Smith’s December 9, 2010 letter provides substantial evidence that he received noti= ce of the IDEM action, the Permit, on December 1, 2010. Woodrow Smith first filed a letter protesting IDEM’s issuance of the Permit on December 9, 2010, less th= an 15 days after receiving notice. Woodrow Smith’s December 9, 2010 letter was timely filed.
=
10.&=
nbsp;
=
11.&=
nbsp; The
moving party bears the burden of establishing that summary judgment is
appropriate. When the moving =
party
(here, Evansville
[2011 OEA 58, page 68 begins]
=
12.&=
nbsp; In
responding to a motion for summary judgment, mere assertions, opinions, or
conclusions of law asserted by the non-movant will not suffice to create a
genuine issue of material fact to preclude summary judgment. Sanchez
v. Hamara, 534 N.E.2d 756, 758 (Ind. Ct. App. 1989), trans. denied; McMahan =
V.
Snap-On Tool Corp., 478 N.E.2d 116, 122 (Ind. Ct. App. 1985). See
also West Boggs,
= 13. I.C. § 4-21.5-3-7(1) mandates that “[t]o qualify for review of [an agency order], a person must petition= for review in a writing that . . . states facts demonstrating that:
<=
span
style=3D'mso-list:Ignore'>(A)&=
nbsp; <=
span
style=3D'mso-spacerun:yes'> the petitioner is a person to whom =
the
order is specifically directed;
<=
span
style=3D'mso-list:Ignore'>(B)&=
nbsp; <=
span
style=3D'mso-spacerun:yes'> the petitioner is aggrieved or adve=
rsely
affected by the order; or
(C) <=
span
style=3D'mso-spacerun:yes'> the petitioner is entitled to review
under any law.
14.
Wo=
odrow
Smith’s written filings do not qualify as a petition for review of the
Permit under I.C. § 4-21.5-3-7(1)(A), as the Permit was specifically
directed to
15. “[W]hether a person is entitled t=
o seek
administrative review depends upon whether the person is “aggrieved or
adversely affected”. Huffman
v.
[2011 OEA 58, page 69 begins]
Huffman=
was
possible. Huffman's petition was challenged by a motion to dismiss supporte=
d by
facts outside Huffman's pleadings, and thus was required to be treat=
ed
by the Court as a Motion for Summary Judgment. The Indiana Supreme C=
ourt
ruled that Huffman's dismissal by the lower courts was not supported=
by
substantial evidence. The Court remanded Huffman's case back to OEA =
to
provide Huffman with an opportunity to present additional evidence of her
health concerns (settled prior to OEA decision on remand). “Particularly because the OEA
never gave Huffman an opportunity to provide additional evidence or to deve=
lop
the argument more fully, it was impossible for the OEA to tell what
Huffman’s personal health claim was and whether it had any mer=
it.
Dismissing the claim was therefore premature.” Id at 815.
16. Whether Woodrow Smith is aggrieved or
adversely affected by the Permit is a factual issue dispositive of this
litigation. Woodrow Smith had=
three
opportunities to meet the statutory requirement to prove that he was aggrie=
ved
or adversely affected: one, h=
is
petition for review; two, by responding to the Order to Supplement; three, =
by
responding to Permittee’s Motion to Dismiss. Woodrow Smith’s responses in=
two
December 4, 2010 letters were “Homeowner” and “Don’t
have the income to justify cost of something that is not needed or proven t=
hat
it is needed.” Th=
is
statement constitutes an assertion that Woodrow Smith is likely to suffer
immediate future harm to a pecuniary legal interest.
17. The Court must next determine whether W=
oodrow
Smith’s assertion provides substantial evidence as to whether he is
aggrieved or adversely affected. On
a summary judgment challenge, a conflicting inference of fact is to be
construed in favor of non-movant Woodrow Smith. Woodrow Smith did not respon=
d to
Permittee’s dispositive motion. The Court’s Order to
Supplement specifically ordered that Woodrow Smith must state how s/he is
aggrieved or adversely affected by IDEM’s action. Woodrow Smith’s responses in=
two
December 4, 2010 letters were “Homeowner” and “Don’=
t have
the income to justify cost of something that is not needed or proven that i=
t is
needed.” This ass=
ertion
demonstrates that Woodrow Smith is likely to suffer harm to a pecuniary leg=
al
interest in the immediate future.
The inference that Woodrow Smith is aggrieved or adversely affected =
is
drawn from his assertion that he is “Homeowner”. Woodrow Smith’s assertion th=
at he
is “Homeowner” gives rise to a reasonable inference that the Pe=
rmit
directly affects Woodrow Smith. Woodrow
Smith may be required to pay rates for the permitted project and thus suffer
harm to a pecuniary legal interest in the immediate future.
18. Woodrow Smith’s written statement=
s, and
the inferences to be drawn from them, provide a sufficient factual basis for
Woodrow Smith to provide substantial evidence that Woodrow Smith was aggrie=
ved
or adversely affected by the Permit under I.C. =
§
4-21.5-3-7(1).
[2011 OEA 58, page 70 begins]
19. <=
span
style=3D'mso-spacerun:yes'> Woodrow Smith also has the burden of
proving that his written statements must meet other statutory requirements =
in
order to qualify as a petition for review.=
I.C. § 13-15-6=
-2 sets out the requirements f=
or
appealing a permit issued by IDEM as follows:<=
/a>
A written re=
quest
for an adjudicatory hearing under section 1 of this chapter must do the
following:
(1)
St=
ate
the name and address of the person making the request.
(2)
Id=
entify
the interest of the person making the request.
(3)
Id=
entify
any persons represented by the person making the request.
(4)
St=
ate
with particularity the reasons for the request.
(5)
St=
ate
with particularity the issues proposed for consideration at the hearing.
(6)
Id=
entify
the permit terms and conditions that, in the judgment of the person making =
the
request, would be appropriate in the case in question to satisfy the
requirements of the law governing permits of the type granted or denied by =
the
commissioner's action.
20. Additionally, the Indiana Administrativ=
e Code
contains the following requirements related to the initiation of a proceedi=
ng
for administrative review with the Office of Environmental Adjudication:
(b) The petition for administrative review =
shall
contain the following information:
…=
(4)
St=
ate
with particularity the legal issues proposed for consideration in the
proceedings as follows:
(A) In a case involving an appeal=
of a
permit, identify the following:
(i) Environmental concerns or technical
deficiencies related to the action of the commissioner that is the subject =
of
the petition.
(ii)
315 =
IA=
C 1-3-2(b)
(emphasis added).
21. The Order to Supplement gave Woodrow Sm=
ith
notice as to how his written filings did not comply with the minimum legal
requirements stated in I.C. § 13-15-5-2 and 315 IAC 1-3-2(b). The Order to Supplement gave Woodr=
ow
Smith at least 30 days to cure the deficiencies in his petition for
review. The Order to Suppleme=
nt
also gave Woodrow Smith notice that the consequence for not complying with =
the
Order to Supplement was dismissal, per I.C. § 4-21.5-3-24; 315 IAC 1-3=
-7.
[2011 OEA 58, page 71 begins]
22. By providing information about his iden=
tify
and address, by noting that he is “Homeowner”, and enclosing
incomplete portions of the Permit which identified the permitted project[3],
Woodrow Smith’s written filings provide substantial evidence of
compliance with subparts (1), (2) and (3) of I.C. § 13-15-6-2 . Woodrow Smith’s contentions that the permitted
facilities are not needed and will be too costly for the residents provides
substantial evidence of the basis for requesting review, but does not provi=
de
the particularity required by subpart (4).=
By substantial evidence, as a matter of law, Woodrow Smith’s
written filings did not comply with I.C. § 13-15-6-2, subpart (4). Woodrow Smith’s written fili=
ngs
did not comply with the Order to Supplement’s requirement that “=
;the
Petitioner must identify which portions of the permit to which s/he is
objecting.” The content=
of
Woodrow Smith’s written filings is insufficient as a petition for
administrative review of the Permit and should be dismissed.
23. Although not cited by Woodrow Smith, the
majority of technical environmental requirements relevant to the Permit are
stated in 327 IAC 3, et seq.
FINAL
ORDER
&=
nbsp; For
all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR=
EED
that Permittee/Respondent Twin Lakes Regional Sewer District’s and
Indiana Department of Environmental Management’s Motion to Dismiss
Woodrow Smith’s Petition for Administrative Review for timely filing =
is DENIED, and Permittee/Respondent =
Twin
Lakes Regional Sewer District’s Motion to Dismiss, treated in part as=
a
Motion for Summary Judgment is GRA=
NTED
in part such that Woodrow Smith’s Petition for Administrative Review =
is DISMISSED with prejudice. Permit 19800 issued to Twin Lakes
Regional Sewer District by the Indiana Department of Environmental Manageme=
nt
is AFFIRMED. All further proceedings are VACATED.
[2011 OEA 58, page 72 begins]
&=
nbsp; 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. 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 15th day of April=
, 2011
in IN.
Hon. Mary L. Davidsen
Chief Environmental Law Judge
[2011 OEA 58: end of decision]
2011
OEA 58 in .doc format
2011
OEA 58 in .pdf format
[1] As will be discussed further, a document filed with OEA is dated as of its postmark date, I.C. § 4-21.5-3-1(f)(2), or if the postmark canNot be r= ead, as of its receipt by OEA. I.C. § 4-21.5-3-1(f)(1).
[2]
Envelopes from Woodrow Smith had a return address in
[3] Contrary to Permittee’s argument, Woodrow Smith did identify the proj= ect with particularity; the information was stated on the first page of the Per= mit attached as a copy to Woodrow Smith’s December 9, 2010 letter.
Objection to Issuance of
Construction Application for Wastewater Collection
Permit Approval No. 19800=
Big
2011 OEA 58, (10-W-J-4438=
)