OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA X, cite this case as

Objectio= n to the Issuance of Construction Application for Sanitary Sewer =

Approval No.19508, Shipshewana Lake Collection Sys= tem

Shipshew= ana, LaGrange County, Indiana

2010= OEA 55, (09-W-J-4305= )

[2010 OEA 55, page 55 begins]

O= FFICIAL SHORT CITATION NAME: When referring to 2010 OEA 55, cite thi= s case as &nbs= p;

Shipshewana Lake Collection Syst= em, 2010 OEA 55.

&n= bsp;

TOPICS= :

summary judgment

sanitary sewer

wastewater

collection system

setback

treatment

pretreatment

hydrogen sulfide gas

certification

capacity

average daily flow rate

alternative technical standards

local permit

moot

notice

lack of notice

water pollution treatment/control facility

Huffman

Musol

PRESID= ING JUDGE:

Catherine Gi= bbs

<= /o:p>

PARTY REPRESENTATIVES= :

IDEM: &n= bsp; Nan= cy Holloran, Esq.

Petitioners: &nbs= p; Dianne and Robert Fiedler, Kay and Dennis Martin, Veronica and Michael Victor

Permittee: = John Gastineau, Esq.; Eberhard & Gastineau, PC

<= /o:p>

ORDER = ISSUED:

May 5, 2010<= o:p>

<= /o:p>

INDEX CATEGORY:<= /o:p>

Water

<= /o:p>

FURTHER C= ASE ACTIVITY:

Judicial Review

[2010 OEA 55, page 56 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<= /st1:PlaceName> &= nbsp; )

IN THE MATTER OF: = &nb= sp; = &nb= sp; = )

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

OBJECTION TO ISSUANCE OF CONSTRUCTION )

PERMIT APPLICATION FOR SANITARY SEWER ) &= nbsp;

PERMIT APPROVAL NO. 19508 &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp;

SHIPSHEWANA LAKE COLLECTION SYSTEM = )

SHIPSHEWANA, LaGRANGE = COUNTY, INDIANA )

_______________________________________________ ) &= nbsp; CAUSE NO. 09-W-J-4305

Dianne & Robert Fiedler, Kay & Dennis Martin, &= nbsp; &nbs= p; )

Steve Schrock, et al.,<= span style=3D'mso-tab-count:6'> &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

= ; Petitioners, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )<= /p>

LaGrange County Regional Utility District, = &nb= sp; )

= ; Permittee/Respondent, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Indiana Department of Environmental Management, = )

= ; Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

= ; This matter having come before the Court on the LaGrange County Regional Utility District’s (the District) Motion for Summary Judgment, the Indiana Department of Environmental Management’s Motion for Summary Judgment = and the Petitioners’ Dispositive Motion for Summary Judgment Seeking Revocation of Permit 19508, which pleadings are parts of the Court’s record; and the Court, being duly advised and having read the pleadings, pe= tition, motion, response, reply and evidence now enters the following findings of f= act, conclusions of law and final order:

Statement of the Case<= o:p>

1. Be= tween August 21, 2009 and September 3, 2009, the Office of Environmental Adjudica= tion (the OEA or the Court) received petitions for administrative review of the issuance of Approval No. 19508 to the District by the Indiana Department of Environmental Management (the IDEM).

2. On October 21, 2009, the District filed its Motion to Dismiss Persons as Petitioners. The Court grante= d the motion to dismiss the following Petitioners: Mervin Miller, Steve Slaven, Steven Fanning, Michael C. Merritt, Raymond Howard, Bruce Nenna, Dawn Dunlap, John Powalowski, Sue Powalowski, Erin Burke, Jack C. Thomas, Elmma Yoder, Joe Yo= der, Molly Wiard, Joseph Schlabach, and Norma Easterday. The Court denied the motion to dis= miss Lavon Schlabach and Mark Easterday.

[2010 OEA 55, page 58 begins]

3. The District filed its Motion for Summary Judgment on January 27, 2010. Thereafter, it filed its Response = to Petitioners’ Dispositive Motion for Summary Judgment on March 4, 2010= and its Reply to Petitioners’ Response to the District’s Motion for Summary Judgment on March 17, 2010.

4. The Petitioners filed their Dispositive Motion for Summary Judgment Seeking Revocation of Permit 19508 on January 29, 2010. The Petitioners filed their Respon= se to Respondent the LaGrange County Regional Utility District’s Numerous Motions Seeking Summary Judgment; and their Response to Respondent the Indi= ana Department of Environmental Management’s Motion for Summary Judgment = on March 2, 1010. Their Reply to Respondent LaGrange County Regional Utility District’s Response, Including Supplemental Motions, to Petitioners’ Dispositive Motion for Summary Judgment was filed on March 17, 2010.

5. Th= e IDEM filed its Motion for Summary Judgment on January 29, 2010. The department filed its Reply to = Motion for Summary Judgment on March 17, 2010.

Statement of the Issue= s

1. Was the Permit properly issued?

2. Was notice to all affected parties given?

FINDINGS OF FACT<= /o:p>

<= span style=3D'mso-bidi-font-size:12.0pt'>1. On August 18, 2009, the Indiana Departm= ent of Environmental Management (the IDEM) issued Approval No. 19508 (the Approval= ) to the LaGrange County Regional Utility District (the District) authorizing the construction of a sanitary sewer around Shipshewana Lake (the Project).

<= span style=3D'mso-bidi-font-size:12.0pt'>2. Between August 31, 2009 and September 3, 2009, the Office of Environmental Adjudication (the OEA or Court) received = many petitions for review of the Approval. The Petitions for Review were consolidated under Cause Number 09-W-J-4305. The parties cons= ented to allowing the following individuals to represent all of the Petitioners:<= span style=3D'mso-spacerun:yes'> Diane and Robert Fiedler; Kay and = Dennis Martin; and Veronica and Michael Victor.

<= span style=3D'mso-bidi-font-size:12.0pt'>3. The Petitioners filed an Amended Petiti= on for Administrative Review on December 23, 2009.

<= span style=3D'mso-bidi-font-size:12.0pt'>4. The Project consists of the constructio= n of a sanitary sewer collection system around Shipshewana Lake. The collection system will connect= with the Town of Shipshewana’s (the “Town”) collection system. The collected wastewater will be t= reated at the Town of Shipshewana’s treatment plant before being discharged.

[2010 OEA 55, page 59 begins]

<= span style=3D'mso-bidi-font-size:12.0pt'>5. The permit application was submitted to= the IDEM on June 22, 2009. The application includes several documents which certify certain facts. These documents were signed on var= ious dates, the earliest of which was January 20, 2009. Between January 20, 2009 and June = 22, 2009, the design of the Project had not changed in a significant way in ter= ms of: the system’s hydrau= lics; the flows the system was designed to handle; or the flows that would go into the Town of Shipshewana’s collection system.

<= span style=3D'mso-bidi-font-size:12.0pt'>6. The District admits that portions of the collection system were located within ten (10) feet of Shipshewana Lake, as originally proposed and approved. After being informed of this fact by the Petitioners, the District obtained permission from the LaGrange county highway department to move the sewer into the right-of-way for County Road 900 West. The new location would be more tha= n ten feet from the lake. On or abo= ut February 9, 2010, the District submitted revised plans for these specific portions of the system to the IDEM. On February 27, 2010, the IDEM approved the revisions and further fo= und that the revisions did not constitute a significant or material change in t= he Permit and therefore, did not require a modification to the Permit.

<= span style=3D'mso-bidi-font-size:12.0pt'>7. The Project includes the construction o= f a chemical feed and metering station (the Station). The Station is located on the east= side of County Road 850 W near the intersection of County Road 260 N. The location of the Station was mo= ved approximately 60 feet north of the originally proposed location. This was the only change made to t= he proposed plans between January 2009 and June 2009, when the application was submitted to IDEM.

<= span style=3D'mso-bidi-font-size:12.0pt'>8. The Station has 2 purposes: (1) to measure the flow of wastewa= ter; and (2) to inject the wastewater with a chemical named Musol MPOX Active (Musol) prior to being discharged into the Town of Shipshewana’s collection system. The purpos= e of the chemical treatment is to control odor and reduce corrosion. The chemical is automatically adde= d as the wastewater flows through the Station.&= nbsp; The wastewater flows through approximately 1300 feet of pipe to a li= ft station owned and operated by the Town of Shipshewana. From this point, the combined wast= ewater flows to the Town’s wastewater treatment plant, is treated and discharged. &= nbsp;

<= span style=3D'mso-bidi-font-size:12.0pt'>9. The chemical added at the Station does = not render the wastewater safe for discharge into waters of the State. Sewage releases hydrogen sulfide g= as[1], which has a rotten egg smell. The Musol reduces this odor and the corrosivity of the gas. The Musol does not act to neutrali= ze or change the nature of the wastewater; it does not serve to make the wastewat= er any more appropriate for discharge into the waters of the State. There is no change in BOD [2], TSS [3], ammonia, or phosphorus [4].

[2010 OEA 55, page 60 begins]

CONCLUSIONS OF LAW

<= span style=3D'mso-bidi-font-size:12.0pt'>1. 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.<= u>

<= span style=3D'mso-bidi-font-size:12.0pt'>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.

<= span style=3D'mso-bidi-font-size:12.0pt'>3. This office must apply a de novo standard of review to this proceeding when determining the facts at issue. Indiana<= /i> 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 issues are to be determined anew, based solely upon = the evidence adduced at that hearing and independent of any previous findings.<= span style=3D'mso-spacerun:yes'> Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247 (Ind. Ct. App. 1981).

4.      Th= e OEA may enter judgment for a party if it finds that “the pleadings, depositions, answers to interrogatories, and admissions on file, together w= ith the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to judgm= ent as a matter of law.” I.= C. § 4-21.5-3-23.= The moving party bears the burden = of establishing that summary judgment is appropriate. All facts and inferences must be construed in favor of the non-movant. Gibson v. Evans= ville Vanderburgh Building Commission, et al., 7= 25 N.E.2d 949 (Ind. Ct. App. 2000).

5.      Wh= en the moving party sets out a prima facie= case in support of the summary judgment, the burden shifts to the non-movan= t to establish a factual issue. &#= 8220;A factual issue is said to be "genuine" if a trier of fact is requi= red to resolve the opposing parties differing versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. Ct. App. 1992) = at 864. “A genuine = issue of material fact exists where facts concerning an issue that would dispose = of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.” Laudig v. Marion County Bd. of Voters Registration, 585 N.E.= 2d 700 (Ind. Ct. App. 1992) at 703-704. Further, the Indiana Tax Court in Allied Collection Service Inc. v. Ind. Dept. of State Revenue (Cause No. 49T10-0608-TA-76, December 22, 2008) stated, “If there is any doubt when ruling on a motion (or motions) for summary judgment as to what conclusion the Court could reach, the Court will conclude that summary judg= ment is improper, given that it is neither a substitute for trial nor a means for resolving factual disputes or conflicting inferences following from undispu= ted facts. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 9= 09 (Ind. 2001) (cita= tions omitted).”

[2010 OEA 55, page 61 begins]

<= span style=3D'mso-list:Ignore'>6.&n= bsp;     Mere assertions of opinions or conclusions of law w= ill not suffice to create a genuine issue of material fact to preclude summary judgment. Sanchez v. Hamara, 534 N.E.2d 756, 759 (Ind. Ct. App. 1989)(cit= ing McMahan v. Snap On Tool Corp., 478 N.E.2d 116, 122 (Ind. Ct. App. 1985)).&nbs= p; Further, “Summary judgment must be denied if the resolution hi= nges upon state of mind, credibility of the witnesses, or t= he weight of the testimony. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702 (Ind. Ct. App. 19= 99) at 706.

The materials submitted in support of the Permit were=

sufficient to support issuance of the Permit.

7.      The issue in this matter is not whether the application was approvable when it = was filed with the IDEM but whether the application was approvable on the date = that the Permit was issued. The ID= EM has the authority to review the application and ask for additional information prior to approving a permit. = 327 IAC 3-2-2-(e)(7). The IDEM pr= operly considered all of the material submitted in support of the Permit including= the material that was submitted in response to IDEM’s notices that the application was deficient. Th= e mere fact that the supporting documents were signed on various dates prior to the submission of the application is not sufficient to support a conclusion that the application was deficient. The Petitioners must prove more than just that the materials were signed on different dates; the Petitioners must prove that the information contained = in the materials was false or inaccurate; that the signatories knew that the information was false or inaccurate; or that the information was otherwise insufficient to support the issuance of the Permit. In this case, the Petitioners must= show that the information, upon which the capacity certifications were based, changed between the date the certification was signed and the date that the application was submitted to the IDEM.

8.      The Petitioners argue that the fact that the certifications were dated as early= as January of 2009 mandates a finding that the certifications were faulty. Specifically, the Petitioners cite= to 327 IAC 3-6-11 which states that the flow rate requirements must be determi= ned in accordance with this section. This rule further states that an applicant may use a general average daily flow rate value of 310 gpd [5]/single family homes to determine flow rate requirements. However, 327 IAC 3-6-32 provides t= hat alternative technical standards may be approved by the Commissioner. In this case, the District used an alternate average daily flow rate of 150 gpd/single family home and request= ed permission to use this figure in accordance with 327 IAC 3-6-32. The Petitioners argue that by usin= g an alternate average daily flow rate without first having obtained permission = to do so, the District knew that the certifications did not meet the rule requirements and were false. However, this interpretation of the rule is not supported by the rule language. The use of the word “may” in 327 IAC 3-6-11 and the provision allowing for the appr= oval of alternative technical standards at 327 IAC 3-6-32 allow an applicant to include an alternative standard at the same time as requesting permission t= o do so. The rule language does not support the Petitioners’ contention that the District was required to= use the 310 gpd flow rate and that the use of any other flow rate

[2010 OEA 55, page 62 begins]

mand= ates a finding that the District knew that the certifications were false. Therefore, as there is no issue of material fact, summary judgment in favor of the District is appropriate.

9.      The Petitioners further argue that the plans for the sewer are faulty because t= he sewer will be constructed within fifty (50) feet of drinking water wells, pursuant to 327 IAC 3-6-9(d)(3). This issue was not raised in either the original Petition for Review= or the Amended Petition for Review so it is not properly before the Court. However, for expediency’s sa= ke, the Court will address it. The drinking water wells in question are individual wells, not “public wa= ter system drinking water wells” as defined by I.C § 13-2-11-177.3 [6]. The Petitioners have not presented sufficient evidence that the drinking water wells are public water system drinking water wells and subject to this requirement. Summary judgment in favor of the District is appropriate.

10. In= , In the Matter of: Objections to Issuance of Solid Waste Facility Permit = 46-09, Great Lakes Transfer Station, La Porte County, (05-S-J-3632; 05-S-J-36= 55), 2006 OEA 24, 32, the petitioners sought to have a permit to build a solid w= aste permit invalidated because the permittee had not acquired all of the necess= ary local and state permits. Chief Environmental Law Judge Mary L. Davidsen ruled that the rules governing the permitting process did not require the permittee to obtain those permits pr= ior to applying for the solid waste permit.&nb= sp; Chief ELJ Davidsen wrote that “The permit does not allo= w or give Great Lakes authority or permission= to ignore local rules or regulations, nor influence local decision-making bodies.” This conclusion was upheld in Bd. Of Commissioners of LaPorte County, et al. v. Great Lakes Transfer, 888 = N.E.2d 784 (Ind. Ct. App. 2008).

11. Fu= rther, I.C. § 13-15-3-5(b) provides that “a person to which a permit has been issued may not start the construction, installation, operation, or modification of a facility, equipment, or a device until the person has obt= ained any approval required by any (1) county; (2) city; or (3) town; in which the facility, equipment, or device is located.” In addition, 327 IAC 3-2-2(d) stat= es, “Construction shall not commence until all necessary state approvals = and permits are obtained.” = Also, 327 IAC 3-6-6(b) states, “(b) All required permits or exemptions from other federal, state, and local units must be obtained prior to the commencement Indiana Administrative Code Page 15 of construction of any sanitary sewer covered by this rule.”

12. In addition, the Permit itself indicates that all local permits/approvals must= be obtained before construction begins.[7]

[2010 OEA 5= 5, page 63 begins]

13. Ea= ch of these rules requires that a permittee have all necessary permits and approv= als before it can begin construction. The rules do not require that the permits and approvals be obtained prior to applying for the construction permit. Therefore, summary judgment in fav= or of the District is appropriate.

14. The Petitioners allege that the construction plans are not in compliance with t= he rules.   Specifically, th= ey allege that the plans are not in compliance with 327 IAC 3-6-10(a). This rule states “(a) Sanita= ry sewers and lift stations shall be separated from existing or proposed water bodies by ten (10) feet horizontally measured from the outside edge of the sanitary sewer to the edge of the water line at normal pool elevation.̶= 1;

15. The District has admitted that the sewers, as originally designed, are within 10 feet of Shipshewana Lake. There are no exceptions to this ru= le; therefore, if left uncorrected, the Permit would have to be remanded to the IDEM to correct this deficiency. However, the District has revised its plans and submitted them to the IDEM. The IDEM has approved t= he revisions and determined that the revisions do not constitute a “significant or material” change requiring the submission of an amended permit application [8].

16. The Petitioners argue that I.C. § 13-15-7-1 requires that the IDEM issue a modified permit. This statute provides that the Commissioner of the IDEM may revoke or modify a permit under certain circumstances. The use of the word “mayR= 21; grants the Commissioner discretion in this matter. The revisions made by the District= were relatively simple and there were no changes in the nature or volume of wastewater or to the collection system, such as size, materials, or entranc= e or exit points. In this instance= , the Petitioners have not provided sufficient evidence to prove that the Commiss= ioner abused his discretion.   =

17. This issue is moot as the approved revi= sions have corrected the noncompliance. “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 w= ill be dismissed.” Travelers Indem. Co. v. P.R. Mallory &= amp; 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, as = the District has corrected the problem and the IDEM did not abuse its discretio= n in approving the corrections, this issue is moot.

18. The Petitioners have failed to present sufficient evidence to show that the Project, as revised, does not comply with 327 IAC 3-6-10(a). Therefore, summary judgment in fav= or of the District is appropriate.

[2010 O= EA 55, page 64 begins]

19. The Petitioners argue that the Station is a “water pollution treatment/control facility” and, as such, the District was required to have a separate permit for the construction of the Station. 327 IAC 3-1-2(24) defines "Wa= ter pollution treatment/control facility" as “any equipment, device, unit, or structure at a site that is used to control, prevent, pretreat, or treat any discharge or threatened discharge of pollutants into any waters of the state of Indiana including public or private sewerage systems.”

20. It= is clear that the Station is a structure at a site that discharges into a publ= ic sewer system (the Town of Ship= shewana). Therefore, the question is whether= the Station is “used to control, prevent, pretreat or treat” any discharge.

21. The Station clearly does not control or prevent any discharge. The wastewater flows through the p= ipes contained in an underground vault below the structure and is not accumulate= d. There is no discharge from the Sta= tion.

22. The question is whether the Station “pretreats” or “treats= 221; the sewage. I.C. § 13-11= -2-239 defines “treatment” as follows:

   =    "Treatment", for purposes of environmental management laws, when used in connection with= a waste that is determined to be hazardous waste under I.C. § 13-22-2-3, means any method, technique, or process designed to change the physical, chemical, or biological character or composition of the waste so as to:

(1)&= nbsp;       neutralize the waste;

(2)&= nbsp;       make the waste:

(A)&= nbsp;           &nbs= p;     nonhazardous or less hazardous;

(B)&= nbsp;           &nbs= p;     safer to transport, store, or dispose of;

(C)&= nbsp;           &nbs= p;     amenable to recovery or storage; or

(D)&= nbsp;           &nbs= p;     reduced in volume; or

(3)&= nbsp;       recover energy or material resources from the waste= .

23. Th= e evidence established that the Musol acts to neutralize the hydrogen sulfide gas in o= rder to reduce the odor and the corrosive effects of the gas on the pipes. While the Musol acts to neutralize= the gas, there was no evidence that it changes the composition of the wastewater itself. It does not (1) neutr= alize the wastewater; (2) make the wastewater nonhazardous or less hazardous, saf= er to transport, store or dispose of or reduce volume; or (3) recovers energy = or material resources from the wastewater.   The Petitioners did not pres= ent sufficient evidence that the addition of the Musol “treats” the sewage.

[2010 OEA 55, page 65 begins]

24. “Pretreat” is not defined in either the regulations or the statutes. However, in the context of the rul= es promulgated by the Water Pollution Control Board, pretreatment is used in reference to pretreatment programs run by publicly owned treatment works (POTW). The purposes of the pretreatment program are set out in 327 IAC 5-16-1 as follows:

(1)   To prevent the introduction of pollutants in= to a POTW that will interfere with the operation of a POTW, including interferen= ce with the use or disposal of municipal sludge.

(2)   To prevent the introduction of pollutants in= to a POTW that will pass through the treatment works without receiving effective treatment or otherwise be incompatible with such works.

(3)   To improve opportunities to recycle and recl= aim municipal and industrial wastewaters and sludges.

=

25. The addition of the Musol to the wastewater does not serve any of the purposes = for the pretreatment programs. The Town, the operator of the POTW, has consented to the use of the Musol. The Petitioners have not establish= ed that hydrogen sulfide is a “pollutant” or that it would interfe= re with the operation of the Town’s POTW; that it would not be effective= ly treated at the POTW; or that it improves opportunities to recycle or reclaim any of the wastewater. The Petitioners did not present sufficient evidence that the addition of the Mu= sol “pretreats” the sewage.

26. The Station is not a “water pollution treatment/control facility”.<= span style=3D'mso-spacerun:yes'> The Petitioners have failed to sho= w that the District was not in compliance with the applicable regulatory requirements. Summary judgmen= t in favor of the District on this issue is appropriate.

Failure to give notice to all affe= cted parties does not

constitute valid grounds to invali= date Permit.

27. The Petitioners further aver that the District’s failure to give notice to all affected parties requires that the Permit be revoked. The rule that sets out the require= ments for notice is 327 IAC 3-2-2. = The pertinent portion of this rule, 327 IAC 3-2-2(e)(6) states:

(6)   All applications for construction permits must include a signed and dated form = as provided by the commissioner for the identification of affected persons as determined by I.C. § 4-21.5-3-5(b). One (1) prepared mailing label for each potentially affected person shall be provided by the applicant for mai= ling notice of the permit when issued. Each mailing label shall include the name, address, and zip code of the potentially affected person and shall show on = the topmost line of the label a mail code designated by the commissioner.<= /o:p>

[2010 OEA 55, page 66 begins]

28. The Indiana Supreme Court held, in Huffman v. Indiana= Office of Environmental Adjudication, et al., 811 N.E.2d 806 (Ind. 2004) that “whether a person is entitled to seek administrative review depends u= pon whether the person is “aggrieved or adversely affected”. at 807. The Court went on to say that in o= rder for a person to be “aggrieved or adversely affected”, they “must have suffered or be likely to suffer in the immediate future ha= rm to a legal interest, be it pecuniary, property or personal interest.”= at 810. The Court further interp= reted the language of I.C. § 4-21.5-3-7 as not allowing administrative review based upon a generalized concern as a member of the public. A person, therefore, may not seek administrative review of an alleged injury done to another person.

29. An aggrieved individual, one who was not able to timely file a petition for re= view due to the lack of notice, has suffered an injury for which this office can grant relief. However that is= not the case here. None of the Petitioners have alleged that they have been personally harmed by the District’s failure to give them notice. Those Petitioners that did not rec= eive notice, but were able to file a timely petition for review, have sustained = no injury. Because they have suf= fered no injury, they have failed to state a ground upon which relief may be gran= ted.

30. Fu= rther, proof of lack of notice does not constitute sufficient evidence that the pe= rmit application did not meet the technical standards. If a person did not receive notice= , the appropriate remedy would be to allow that person additional time in which to file a petition for review. T= he Petitioners have failed to provide statutory authority or sufficient eviden= ce to support their argument that a failure to provide notice constitutes grou= nds for invalidating the permit.

=

Capacity certification letters are not required from other agenc= ies.

31. The Petitioners allege that the District erred in not obtaining capacity certification letters from various agencies, other than those local agencies with the authority to construct and operate the collection systems through which the wastewater flows. T= he crux of the argument is that every agency that can exercise jurisdiction ov= er the Project must provide capacity certification pursuant to 327 IAC 3-6-4.<= span style=3D'mso-spacerun:yes'>

32. 32= 7 IAC 3-6-4 states, “The authorized representative of the town, city, sanit= ary district, or any entity that has jurisdiction over the proposed collection system must sign and date the application and issue the following certification”. The certification requires the representative certify that the collection system meets certain standards w= hich could only be done by someone who has knowledge of the actual collection system.

[2010 O= EA 55, page 67 begins]

33. Th= e same rules that govern construction of statutes also govern construction of rules. Miller Brewing Co. v. Bartholomew County Beverage Cos., Inc., 674 N.E.2d 193 (Ind. Ct. App. 1996). Therefore, when construing a regul= ation, the Court must apply the rules of statutory construction. One of these rules is, “If a statute is subject to interpretation, our main objectives are to determine, effect, and implement the intent of the legislature in such a manner so as = to prevent absurdity and hardship and to favor public convenience.” S= tate v. Evans, 790 N.E.2d 558, 560 (Ind. Ct. App. 2003).

34. Th= ere are other agencies that have some authority over different aspects of the Project. However, none of the= se agencies have or could be expected to have the detailed knowledge necessary= to certify to the facts required by the rule.= Nor would any of these agencies have any legal authority over the operation or construction of the collection system.

35. Th= is conclusion is consistent with Under= wood Plaza, 2008 OEA 76 and Independence Hill Conservancy District= , 2007 OEA 164. Both of these cases involved parti= es who claimed jurisdiction over the collection system. In Independence Hill, the OEA found that the owner/operators of the downstream collecti= on system to which the new collection system would be connected had jurisdicti= on over the collection system and must supply a capacity certification. Chief ELJ Davidsen stated “T= he determination of the extent of a collection system depends on the path for wastewater collection and discharge sought in a particular application.R= 21; Independence Hill Conservancy District, = 2007 OEA 164 at 172. In Underwood Plaza, the ELJ applied this conclusion and found that the owner/operator of an upstream collection system did not have any jurisdiction over the new collection system and capacity certification was not required.[9] In this case, it is clear that the= only entity that has jurisdiction over the collection system is the Town of Shipshewana. The Town has provided the proper certification.

36. The Petitioners have failed to submit sufficient evidence to show that there is= a genuine issue of material fact

FINAL ORDER

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      &= nbsp;     IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the LaGrange County Regional Utility District’s Moti= on for Summary Judgment is GRANTED and the Petition for Review filed by the Petitioners is hereby 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. This is a Final Order subject to Judicial Review consistent with applicable provisions of I.C. § 4-21.5= .

[2010 O= EA 55, page 68 begins]

Pursuan= t to I.C. § 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 wit= hin thirty (30) days after the date this notice is served.

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        &= nbsp;   IT IS SO ORDERED this 5th day of May, 2010 in Indianapolis, IN.

Hon. Catherine Gibbs<= /p>
Environmental Law Judge

[2010 OEA 55: end of decision]

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