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

Objection to Denial of Sewer Modification Construction Permit to

City of Gary

Gary, Lake County, Indiana

2010= OEA 69, (06-W-J-3706= )

[2010 OEA 69, page 69 begins]

O= FFICIAL SHORT CITATION NAME: When referring to 2010 OEA 69, cite thi= s case as &nbs= p;

City = of Gary, 2010 OE= A 69.

&n= bsp;

TOPICS= :

sewer modifi= cation

construction= permit

denial<= /o:p>

incomplete a= pplication

pipe

Motion to Di= smiss

moot

supersede

stipulate

Adapto

statement

conduct=

PRESID= ING JUDGE:

Mary L. Davi= dsen

<= /o:p>

PARTY REPRESENTATIVES= :

IDEM: &n= bsp; Sie= rra Alberts, Esq.

Petitioners: &nbs= p; Susan M. Severtson, Esq.

ORDER = ISSUED:

May 14, 2010=

<= /o:p>

INDEX CATEGORY:<= /o:p>

Water

<= /o:p>

FURTHER C= ASE ACTIVITY:

[none]

[2010 OEA 69, page 70 begins]

STATE OF INDIANA= &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; BEFORE THE INDIANA OFFICE OF

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION<= /st1:PlaceName> &= nbsp; &nbs= p; )

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

&= nbsp; = = &nb= sp; = &nb= sp; = &nb= sp; )

OBJECTION TO THE DENIAL OF &nbs= p; = )

SEWER MODIFICATION CONSTRUCTION PERMIT = )

TO CITY OF GARY&nb= sp; = &nb= sp; = &nb= sp; )

GARY, LAKE COUNTY, INDIANA= &= nbsp; &nbs= p; &= nbsp; )

_______________________________________= ________ )&n= bsp; CA= USE NO. 06-W-J-3706

City of Gary, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Applicant/Petiti= oner, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

Gary Sanitary District, = &nb= sp; = &nb= sp; = )

Owner/Petitioner= , &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

Indiana Department of Environmental Management, &n= bsp; = ; )

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

FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER GRANTING IDEM’S SECOND MO= TION TO DISMISS

= &= nbsp; This matter came before the Cour= t on Respondent, IDEM’s, September 21, 2009 Second Motion to Dismiss as Mo= ot, Petitioners’ October 2, 2009 Response, and Respondent, IDEM’s, October 7, 2009 Reply, which documents are a part of the Court record. Respondent, IDEM’s Motion to Dismiss as Moot was based upon its issuance of Construction Permit Approval= No. 19115, the previous denial of which had been the issue under review in this cause. The Court’s June= 19, 2009 Order Denying Motion to Dismiss as Moot is a part of the Court’s record, and is incorporated herein by reference. The Chief Environmental Law Judge (“ELJ”), being duly advised and having read and considered the petitions, motions, evidence, and briefs, responses and replies of the part= ies, finds that judgment may be made on the record and makes the following Findi= ng of Facts, Conclusions of Law, and Final Order:

FINDINGS OF FACT

1.&n= bsp; On April 4, 2006, Petitioners, Applicant City of Ga= ry (“Gary”) and Owner Gary Sanitary District (“GSD”) (collectively, “Petitioners”), appealed the Indiana Department = of Environmental Management’s (“IDEM”) March 14, 2006 determination to deny Petitioners’ application for a construction per= mit for sewer modification at 53^rd Avenue and Adams Street, Gary, La= ke County, Indiana. (“2006 application”). IDEM’s denial was based upon= its determination that Petitioners’ 2006 application was incomplete, desp= ite requests to provide specified information.

2.&n= bsp; Petitioners’ Petition for Administrative Revi= ew (“Petition”) stated six enumerated “issues”, and so= ught approval of the 2006 application per the submitted designs.

[2010 OEA 69, page 71 begins]

3.&n= bsp; As this cause proceeded through litigation, Petitio= ners requested additional time to attempt resolution in order to address project= developments, such as negotiations among the parties, and terms of an Agreed Order which addressed possible service needs as noted in IDEM’s violations 2005-15434-W and 2005-15462-W. Petitioners’ Verified Motion= to Continue Hearing Date, May 14, 2007.&n= bsp; Subsequent status reports noted a dispute among the parties as to whether the line should be replaced with eight-inch pipe or twelve-inch pipe. Status Report of the Parties, August 21, 2007, November 28, 2007.

=

4.&n= bsp;        Petitioners submitted a subsequent May 22, 2008 application for permit 19115 for the Project appealed in this case. Petitioners did not appeal that pe= rmit issued by IDEM’s determination. The parties, in IDEM’s January 13, 2009 Motion to Dismiss as M= oot, and in subsequent filings, referenced IDEM’s May 22, 2008 issuance of= 327 IAC 3 Construction Permit Approval #19115 (“2008 permit”), to t= he same parties, for the same project location, with a modified project design. A citizen, Eli Gusan,= appealed the 2008 permit, which matter remained pending under OEA Cause 08-W-J-4125,= at the time the Court issued its June 19, 2009 Order Denying Motion to Dismiss= as Moot.

=

5.      =    In their January 13, 2009 Response to IDEM’s (First) Motion to Dismiss, Petitioners stated that this cause would be reso= lved once OEA Cause 08-W-J-4125 was resolved.&n= bsp; Specifically, Petitioners stated:

a.&n= bsp;      “PETITIONERS requested, and relied on a conse= nsus that IDEM did not object to this matter [06-W-J-3706] continuing subject to= the resolution and implementation of Construction Permit No. [1]9115.” Petitioners’ Response, p. 2, para. 2.

b.&n= bsp;     “PETITIONERS request herein for a hearing, or= in alternatively that this matter continue subject to the resolution and implementation of Construction Permit No., [1]9115, is not moot as argued by IDEM. The controversy at issu= e in this cause has not been settled or resolved and cannot be until such time as the objection in 08-W-J-4125 is finally determined.” Petitioners’ Response, p. 2, para. 5.

c.&n= bsp;      “WHEREFORE, CITY OF GARY and GARY SANITARY DISTRICT, reques= t that this matter continue until 08-W-J-4125 is resolved or in the alternative th= at this matter be scheduled for a hearing in accordance with the Court’s schedule.” Petitioners’ Response, p. 2.=

=

6.&n= bsp;        In denying IDEM’s Motion to Dismiss as Moot, = the Court’s June 19, 2009 Order stated that this cause was not moot so lo= ng as the 2008 permit was subject to administrative review, but that a decision sustaining the 2008 permit would supercede the 2006 permit application.

=

7.&n= bsp;        A review of the record in OEA Cause 08-W-J-4125, and the allegations of the parties in this cause, shows that the Petitioners to this cause did not oppose the 2008 permit.   Mr. Gusan’s Petition f= or Administrative Review was dismissed in the Court’s July 27, 2009 order granting IDEM’s Motion for Summary Judgment.   See 2009 OEA 90. = The Court’s July 27, 2009 Final Order was not appealed.

=

[2010 OEA 6= 9, page 72 begins]

=

8.&n= bsp;        In sum, in its Second Motion to Dismiss as Moot, ID= EM argues that this cause, Petitioners sought issuance of a construction permi= t, Petitioners’ relief has been granted by issuance of the 2008 permit, such that no effect= ive relief remains to be issued by this Court to Petitioners. In sum, Petitioners oppose dismiss= al because the 2006 “application of Petitioners to reconstruct the sewer line is legally sufficient, reasonable and less costly than those mandated = by [the 2008] permit [19115].” Petitioners’ October 2, 2009 Res= ponse, p. 2, para. 5.

=

CONCLUSIONS OF LAW

=

1.      =          The Indiana Department of Environmental Management (“IDEM”) is char= ged with implementation and enforcement of Indiana’s environmental laws and rules. I.C. § 13-14-1-1, et seq. The Office of Environmental Adjudi= cation (“OEA”) has jurisdiction for administrative review of the decis= ions of the Commissioner of IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7, et seq.

=

2.      =          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.      =          This Court must apply a de novo stand= ard 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), Indiana-Kentucky Electric v. Commissioner, Indiana Department of Environmental Management,= 820 N.E.2d 771 (Ind. Ct. App. 2005). Findings of fact must be based exclusively on the evidence presented to the Environmental Law Judge (“ELJ”), I.C. § 4-21.5-3-27(d). Deference to = the agency’s initial determination is not allowed. Id.; “De novo review&= #8221; means that “all issues are to be determined anew, based solely upon t= he evidence adduced at that hearing and independent of any previous findings.” Grisell v= . Consol. City of Indianapolis, 425 N.E.2d 247, 253 (Ind. Ct. App. 1981).

=

4.      =          OEA is required to base its factual findings= on substantial evidence. Huffman v. Of= fice of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of OEA review = of NPDES permit); see also I.C. &s= ect; 4-21.5-3-27(d). While the par= ties disputed whether IDEM’s issuance of the City of Hobart NPDES Permit was proper, OEA is authorized “to make a determination from the affidavits . . . pleadings or evidence.”= ; I.C. § 4-21.5-3-23(b). “Standard of proof generally= has been described as a continuum with levels ranging from a "preponderanc= e of the evidence test" to a "beyond a reasonable 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 Moore, 453 N.E.2d 971, 972, n. 2. (= Ind. 1983). The "substantial evidence&quo= t; standard requires a lower burden of proof than the preponderance test, yet = more than the scintilla of the evidence test. Burke v. City of Anderson, 612 N.E.2d 559,565, n.1 (Ind. Ct. App. 1993). GasAmerica #47, 2004 OEA 123, 129. See also Blue River Valley, 2005 OEA 1, 11-12. Objection to the Denial

[2010 OEA 69, page 73 begins]

of Excess Liability Trust Fund Claim Marathon Point Service, ELF # 9810570/FID #1054, New Castle, Henry C= ounty, Indiana; Winimac Service, ELF #9609539/FID #14748, Winimac, Pulaski County, Indiana; HydroTech Consulting and Engineering, Inc., 2005 OEA 26, 41.

=

5.      =          Petitioners’ timely filed their Petiti= ons for Review objecting to the April 4, 2006 Construction Permit Denial.   Petitioners’ Petitions demonstrate that they are “aggrieved or adversely affected” by IDEM’s determination, per I.C. § 4-21.5-3-7, and qualify to seek administrative review before the OEA.

=

6.      =          In= their January 13, 2009 Response, Petitioners stated the fact that this cause woul= d be concluded once 2008 Permit 19115 was determined in OEA Cause 08-W-J-4125. These statements were supported by Petitioners’ conduct in applying for the 2008 Permit, and in not appe= aling that permit.

=

“[A] stipulation is a confessory pleading negating the need to offer evidence to prove the fact, and the party is not permitted to later attempt to disprove the fact. B-Dry Owners Ass’n v. B-Dry Syst= em, Inc., 636 N.E.2d 161, 165 (Ind. Ct. App. 1994), trans. den. A stipulation of fact is an express waiver by a party or his counsel of the intended issues. Id. Additionally, stipulations should receive a fair and liberal construction.&n= bsp; Marshall County Redi-Mix, In= c. v. Matthew, 458 N.E.2d 219, 22= 2 (Ind. 1984). Where the parties to a stipulation= have given practical construction to it by their acts and conduct, such construc= tion is entitled to great, if not controlling, weight in determining its proper meaning. Id.”

IDEM v. Adapto, 717 N.E.2d 646, 649-50 (Ind. Ct. App. 1999). In Adapto, in a joint status report filed with the Court, IDEM sta= ted that the “parties have reached an agreement on all issues except with respect to the definition of ‘substantial compliance’ under 328= IAC 1-1-9 and its application in this matter.” Id. at 650. The Court of Appeals upheld the tr= ial court’s ruling that IDEM was bound by that statement, and rejected IDEM’s argument that it did not waive its claim to other issues. Id. As IDEM was bound by stipulations = in Adapto, Petitioners are bound by t= heir statements in their Response to IDEM’s Motion to Dismiss as Moot. These statements were given practi= cal construction by Petitioners’ acts and conduct. Petitioners applied for Permit 191= 15, a modification of their application in this cause. Petitioners participated in the litigation of Permit 19115 in Cause 08-W-J-4125, but did not appeal the permit.

[2010 OEA 6= 9, page 74 begins]

7.      =          Pe= titioners’ challenge IDEM’s second dismissal for mootness of Petitioners’ appeal of denial of the 2006 permit application as “legally sufficien= t, reasonable and less costly than those mandated by” 2008 Permit 19115. These factors were known to Petitioners, if not in their control, when they elected to apply for 2008 permit 19115, and when they elected not to appeal= its issuance, and when they elected not to seek its appeal in its then-pending litigation after the Court ruled in this cause that the 2006 application wo= uld be superseded by issuance of the 2008 permit.

8.      =          A = case is deemed moot when no effective relief can be rendered to the parties by t= he Court. See Matter of Lawrence, 579 N.= E.2d 32, 27 (Ind. 1991); A.D. v. State, 736 N.E.2d 1274, 1276 (Ind. Ct. App. 2000), cited in Petition for Review of NPDES = Permit No. IN0025607, City of Terre Haute, Wastewater Treatment Plant, Vigo County, Indiana, 2007 OEA 1, 5. I= n this case, Petitioners requested relief in the form of an order for project approval. Petitioners have be= en issued a construction permit for the project previously denied. The pending litigation in OEA Cause 08-W-J-4125 regarding that issuance has been dismissed. Prior to dismissal of that litigat= ion, Petitioners and this Court in this Cause stated that the 2006 denial would = be superseded by the 2008 permit issuance.&nb= sp; The sole issue on review in this cause is now moot. By substantial evidence, IDEM is entitled to its second motion to dismiss as moot.

=

FINAL ORDER=

=

=         &= nbsp;   AND THE COURT, being duly advised= , GRANTS the Respondent, Indiana Department of Environmental Management’s Second Motion to Dismiss as Moot. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this matter = is DISMISSED.

=

= = ;           You are hereby further notified that, pursuant to the provisions of I.C. § 4-21.5-7, et seq., the Office o= f 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 O= rder subject to Judicial Review consistent with the applicable provisions of I.C. § 4-21.5, et seq. 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 I= S SO ORDERED this 14th day of May, 2010 in Indianapolis, IN. <= /p>
Hon. Mary L. Davidsen=

Chief Environmental Law Judge

[2010 OEA 69: end of decision]

= 2010 OEA 69 in .doc format

= 2010 OEA 69 in .pdf format