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

Objection to Issuance of NPDES Permit No. ING670052 Elrod Water Com= pany d/b/a

Hoosier Hills Regiona= l Water District Franklin County, Indiana

2009 OEA 43, (08-W-J-4104)

[2009 OEA 4= 3, page 43 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 43, cite this case as &= nbsp;

&nbs= p; Elrod Water Company, 2009 OEA 43.

Topics: &= nbsp;

Notice of Intent

Motion to Dismiss

point source discharge

wastewater

hydrostatic testing

commercial pipelines

NPDES

notice

construction

water quality

ground water

contamination

well field

petition

river

permit

Presiding Environmental Law Judge= :

Mary L. Davidsen

Party representatives:

IDEM: = Sierra L. Alberts, Esq., Eric L. Wyndham, Esq.

Petitioner: &nb= sp; Peter Campbell King, Esq., Tamara B. Wilson, Esq.; Cline, King & King

Respondent: &nb= sp; Philip B. McKiernan, Esq., Joseph M. Hendel, Esq.; Jackman, Hulett & Cracraft<= span style=3D'mso-tab-count:1'> &= nbsp;

Intervenor: = ; Eugene A. Stewart, Esq.; Stewart Law Office

Order issued:

June 23, 2009

Index category:

Water

Further case activity:

[none]

[2009 OEA 4= 3, page 44 begins]

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

&n= bsp; = ; &n= bsp; ) SS: &n= bsp; = ; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION )

IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

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

OBJECTION TO ISSUANCE OF = &= nbsp; &nbs= p; &= nbsp; ) &= nbsp;

NPDES PERMIT NO. ING67005= 2 &= nbsp; &nbs= p; &= nbsp; )

ELROD WATER COMPANY d/b/a= &= nbsp; &nbs= p; &= nbsp; )

HOOSIER HILLS REGIONAL WA= TER DISTRICT )

FRANKLIN COUNTY, <= st1:place w:st=3D"on">INDIANA &n= bsp; = ; &n= bsp; )

_________________________= _____________________ ) CAUSE NO. 08-W-J-4104

Elrod Water Company d/b/a= &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Hoosier Hills Regional Wa= ter District, &nbs= p; &= nbsp; &= nbsp; )

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

Rockies Express Pipeline = Co., LLC, &nb= sp; = &nb= sp; )

Respondent/Permi= ttee, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Fra= nklin County Board of Commissioners, &= nbsp; &nbs= p; )

Intervenor, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Indiana Department of Environmental Management, = &nb= sp; )

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

FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER=

This matter came before t= he Office of Environmental Adjudication (“OEA” or “CourtR= 21;) on Respondent/Permittee’s June 27, 2008 Motion to Dismiss or, In the Alternative, For Summary Judgment (“Motion”). The parties fully briefed their positions and the Court heard oral arguments on the Motion. 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 ELJ, by substantial evidence, and being duly advised, now makes the following findi= ngs of fact and conclusions of law and enters the following Final Order:

FINDINGS OF FACT

<= span style=3D'mso-list:Ignore'>1.&n= bsp; On March 4, 2008, Rockies Express Pipeline LLC (= 220;Rockies”) filed a “Notice of Intent (NO= I) Letter Submittal Application” (“NOI”) with the Indiana Department of Environmental Management (“IDEM”). The NOI was submitted as required = in 327 IAC 15-11 et seq., which establ= ishes the requirements for point source discharges of wastewater from the hydrost= atic testing of commercial pipelines.

[2009 OEA 4= 3, page 45 begins]

2.&n= bsp; On April 15, 2008, IDEM’s Office of Water Quality, NPDES Permit Section, issued a “Notice of Decision to Issue a General Permit” (“Notice”). The Notice stated that National Po= llution Discharge Elimination System (“NPDES”) general permit number ING670052 (“Permit”) had been issued to = Rockies. The Notice stated that the NOI com= plied with 327 IAC 15-11 et seq. and = that the Permit allows Rockies to discharge non-process wastewater from hydrosta= tic testing of a commercial pipeline into the Whitewater River in, inter alia, Franklin County, India= na.

3.&n= bsp; The Permit allows wastewater discharges associated = with a project referred to as “REX East” which involves the construc= tion of a 638 mile long natural gas pipeline from Audrain = County, Missouri to Monroe County, Ohio. The proposed pipeline will pass th= rough the Indiana Counties of Vermillion, Parke, Putnam, Hendricks, Morgan, Johns= on, Shelby, Decatur, an= d Franklin. In sum, Roc= kies will discharge water through the pipeline to test the pipeline’s fitn= ess to contain and transport natural gas.

4.&n= bsp; On May 2, 2008, Elrod Water Company, d/b/a Hoosier Hills Regional Water District (“Hoosier Hills”) timely filed its Petition for Administrative Review, Adjudicatory Hearing and Stay of Effectiveness (“Petition”) pursuant to I.C. § 13-15-6-1 et seq., I.C. § 4-21.5-3-1 et seq., and 315 IAC 1-3-1 et seq. On June 10, 2008, the Franklin Cou= nty Board of Commissioners’ Petition to Intervene was granted.

5. The Petition identifies eight (8) proposed issues to be considered by this Cour= t. Petition, pgs. 4-5. The issues identified are:

a. &n= bsp; Whether IDEM criteria for evaluating the impact on water quality in relationship to public water supplies was arbitrary and capricious.

b. &n= bsp; Whether IDEM’s criteria for the activity soug= ht by Rockies was arbitrary and technically deficient.

c. &n= bsp; Whether IDEM’s decision to allow Rockies to discharge the wastewater back into the r= iver was arbitrary and capricious since the river is used as a public water supply.

d. &n= bsp; Whether IDEM’s decision was contrary to law s= ince its Permit conflicts with internal agency guidelines and/or requirements for well field protection.

e. &n= bsp; Whether IDEM provided sufficient findings of fact a= nd conclusions of law when it issued the Permit.

f. &n= bsp; Whether Rockies submitted all the information requi= red by Indiana statutes and administrative code for a permit to discharge wastewater from hydrostatic testing of a commercial pipeline.

g. &n= bsp; Whether IDEM should have denied the Permit due to <= st1:place w:st=3D"on">Rockies’ failure to provide complete informat= ion in the NOI or, in the alternative, required additional information.

h. &n= bsp; Whether the probability of groundwater contamination from the construction activity associated with REX East should have caused = &= nbsp; IDEM to deny the Permit.

[2009 OEA 4= 3, page 46 begins]

These issues allege that hydrostatic testing of REX East will adversely affect the water quality of the Whitewater= River, will threaten economic development in Franklin County, Indiana, and will cause harm to Hoosier Hills by depleting or contaminating its well field, threaten the welfare of its customers, and cause economic harm to Hoosier Hills.

6.&n= bsp; On June 27, 2008, Rockies filed its Motion, arguing that Hoosier Hills’ Petition fails to state a claim upon which the Of= fice of Environmental Adjudication (“OEA”) can grant relief and that, even if the pleadings are viewed in a light most favorable to Hoosier Hills, Rockies is entitled to dismissal as a matter of law.

7.&n= bsp; Hoosier Hills has not filed an amended petition for review, nor has it sought additional time to do so. Hoosier Hills did not object to Rockies’ June 27, 2008 filing of Affidavit of James D. Thompson, no= r did Hoosier Hills present subsequent evidence contesting information contained = in the affidavit.

8.&n= bsp; The parties have agreed to vacate the Case Manageme= nt Orders related to discovery pending a ruling on the Motion before the Court= .

CONCL= USIONS OF LAW

1.&n= bsp; The Indiana Department of Environmental Management (“IDEM”) is authorized to implement and enforce specified Indiana environm= ental laws, and rules promulgated relevant to those laws, per I.C. § 13-13, = et seq. The Office of Environmental Adjudi= cation (“OEA”) has jurisdiction over the decisions of the Commissioner= of IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7, = et seq.

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; In this case, Respondent/Permittee Rockies’ Motion challenges both the legal sufficiency of the claim, as a motion to dismiss, and alternatively challenges the sufficiency of the underlying fac= ts, as a matter of law, as a motion to dismiss. Per Trial Rule 12(B)(6), a motion = to dismiss tests the legal sufficiency of the claim, not the facts which support it. Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). When ruling on a motion to dismiss, “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.” Huffman v. Office of Envt'l. Adjudicat= ion, 811 N.E.2d 806, 814 (Ind. 2004). All reasonable inferen= ces must be drawn in favor of the non-moving party. Meyers v. Meyers, 861 N.E.2d 704, 705-706 (Ind. 2007).

[2009 OEA 4= 3, page 47 begins]

4.&n= bsp; In determining the facts at issue on summary judgme= nt, this Court must apply a de novo standard of review to this proceeding. Indiana Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (= Ind. 1993), I= ndiana-Kentucky Electric v. Commissioner, Indiana Department of Environmental Management, <= /i>820 N.E.2d 771 (Ind. Ct. App. 2005). Findings of fact must be based exclusively on the evidence presented to the ELJ, I.C. § 4-21.5-3-27(d). Deference to = the agency’s initial determination is not allowed. Id.; “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. Grisell v. Consol. City of <= st1:City w:st=3D"on">Indianapolis, 425 N.E.2d 247, 253 (= Ind. Ct. App. 1981).

5.&n= bsp;     The OEA may enter judgment for a party if it finds = that “the pleadings, depositions, answers to interrogatories, and admissio= ns on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving pa= rty is entitled to judgment as a matter of law.” I.C. &= sect; 4-21.5-3-23. All facts and inferences must be construed in favor of the non-movant. Gibson v. Evansville Vanderbu= rgh Building Commission= , et al., 725 N.E.2d 949 (= Ind. Ct. App. 2000). In this case, Rockies has the burden of showing whether the permit IDEM issued complied with statutory and regulatory requirements as a matter of law. AquaSource Services and Technology, = 2002 OEA 41, 44. Rockies, as movant ha= s the burden of proof, persuasion, and of going forward on its motion for summary judgment. I.C. § 4-21.5-3-14(c); I.C. § 4-21.5-3-23. All evidence must be construed in = favor of the opposing party, and all doubts as to the existence of a material iss= ue must be resolved against the moving party. City of North Vernon v. Jenni= ngs Northwest Regional Utilities= , 829 N.E.2d 1, (Ind. 2005), Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996). “A genuine issue of material fact exists where facts concernin= g 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, 703 - 704 (Ind. Ct. App. 1992). Further, the Indiana Tax C= ourt in Allied Collection Service Inc. v= . Ind. Dept. of State Revenue, (Ca= use 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 conclu= sion the Court could reach, the Court will conclude that summary judgment 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).” The moving party bears the b= urden of establishing that summary judgment is appropriate. When the moving party sets out a p= rima facie case in support of the summary judgment, the burden shifts to the non-movant to establish a factual issue. City of North Vernon v. Jennings Northwest Regional Utilities, 829 N.E.2d 1, (Ind. 2005), Tibbs v. Huber, Hunt &= amp; Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).

[2009 OEA 4= 3, page 48 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). While = the parties disputed whether IDEM’s determination of Tanner’s Creek’s soil movement and site control 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. (I= nd. 1983). The "substantial evidence" standard requires a lower burden of proof than the preponder= ance 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 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;     In order to issue a NPDES general permit for wastew= ater discharge associated with hydrostatic testing of a commercial pipeline, IDE= M is limited to consideration of three (3) issues. First, IDEM must determine whether= the applicability requirements found in 327 IAC 15-11-3 and 327 IAC 15-2-3 are satisfied. Generally, these r= ules state the existence of NPDES general permits in Indiana, and state that NPDES general permittees are governed by more specific rules. Secondly, IDEM must determine whet= her the NOI requirements found in 327 IAC 15-11-5(a) are satisfied. Finally, IDEM must publish notice = of the issuance of the general permit. 327 IAC 15-11-5(c).

8.&n= bsp;     Per 327 I= AC 15-11-5(c), requirements for a NPDES general permit for wastewater discharge associated with hydrostatic testing of commercial pipelines are:

      Following submittal of a NOI letter to IDEM and publication in the newspaper by the person requesting coverage under subsection (b), IDEM shall do the followin= g:

(1)   Re= view the NOI for applicability pursuant to section 3 of this rule and for compli= ance     with the requirem= ents of subsection (a).

&n= bsp;

(2)   Li= st this facility, the NPDES general permit tracking number, and the informatio= n contained in this notice in a monthly publication to be distributed by IDEM to all persons who have asked to receive NPDES general permit rule notification. T= his monthly publication shall be issued by IDEM on the fifteenth day of every m= onth and shall identify all facilities which met both the NOI and newspaper publication requirements in the preceding month.

[2009 OEA 4= 3, page 49 begins]

9.      In its Petition, Hoosier Hills disputed the propriety of the criteria IDEM use= d in evaluating the impact on the river water quality in relationship to public water supplies. Petition, p. 4. However, the applicable regulation= s in this matter do not require IDEM to consider the impact on water quality. See 327 IAC 15-11-5(c). OEA may only review IDEM= 217;s decision to determine whether it conforms to the standards and requirements established by the Indiana General Assembly and the Water Pollution Control Board. “In determining whether the petition meets the statutory requirements and states a claim up= on which relief can be granted, OEA may only consider whether IDEM’s decision was in compliance with the applicable statutes, regulations and policies. This Court does not= have the authority to address any other issues.” In the Matter of: Wastewater Treatment Plant and Sanitary Sewer Construction Approval No. 16684, Sidney, Indiana, 2004 OEA 99, 102 (hereinafter, = 220;Sidney”); see also In re: Objection to Amendment= to Approval No. AW #5076/Farm ID #6165, Confined Feeding Operation, DeGroot Da= iry, Huntington County, = Indiana, 2006 OEA 1. As a matter of law, no relief may = be granted for Petitioner Hoosier Hills’ claim that IDEM did not evaluate the project’s impact on the river water quality in relation to public water supplies, as IDEM was not authorized to conduct this evaluation.

10. Hoosi= er Hills also disputed the propriety of criteria used by IDEM for the project,= as arbitrary and technically deficient. Petition, p. 4. IDEM is required to consider only = the criteria listed in 327 IAC 15-11-5(c).&nbs= p; OEA may only review an IDEM decision to determine whether it conform= s to the standards and requirements established by the Indiana General Assembly = and the Water Pollution Control Board. <= /span>S= idney, supra.   As a matter of law, IDEM pre= sented substantial evidence that its determination utilized criteria in compliance with those stated in 327 IAC 15-11-5(c), and was therefore not arbitrary and technically deficient.   =

11. Hoosi= er Hills disputed that a permit for hydrostatic testing of an industrial pipeline ca= n be granted for discharge into a water body which serves as a public water supp= ly source. Petition, p. 4. However, the applicable regulations in this matter do not require ID= EM to consider the nature or function of the water body receiving discharge. See 327 IAC 15-11-5(c). OEA may only review an IDEM decision to determine whether it conforms to the standards and requirements established by the Indiana General Assembly and the Water Pollution Control Board. Sidney<= /st1:place>, supra. As a matter of law, no relief = may be granted for Petitioner Hoosier Hills’ claim that IDEM did not base its determination on the nature or function of the receiving water body, as regulatory guidance does not authorize IDEM to use such basis.

12. Hoosi= er Hills also questions whether the Permit approval was contrary to law since = it conflicted with internal agency guidelines and requirements for well field protection. Petition, p. 4. However, the applicable regulations in this matter do not require ID= EM to reconcile its own internal agency guidelines and requirements. See 327 IAC 15-11-5(c). Nor do internal agency guidelines = and requirements supersede the standards and requirements established by= the Indiana General Assembly and the Water Pollution Control Board. As a matter of law, IDEM complied = with applicable regulatory guidance.

[2009 OEA 4= 3, page 50 begins]

13. Hoosi= er Hills asserted that the Permit approval was deficient, for lack of including sufficient findings of fact and conclusions of law. Petition, p. 4. However, the applic= able regulations in this matter do not require IDEM to provide findings of fact = and conclusions of law with the Permit approval. See 327 IAC 15-11-5(c). OEA may only review an IDEM decision to determine whether it conforms to the standards and requirements established by the Indiana General Assembly and the Water Pollution Control Board. Sidney<= /st1:place>, supra. As a matter of law, no relief may = be granted for Petitioner Hoosier Hills’ claim that IDEM did not provide sufficient findings of fact and conclusions of law, as applicable regulatio= ns do not require such from IDEM.

14.&= nbsp; In its Petition, Hoosier Hills requested review of IDEM’s determination = that Rockies submitted all information required by Indiana law and regulations for the Permit. Petition, p. 4, 5 (Issues number 6 and 7). The permitting requirements for hydrostatic testing of an industrial pipeline are found in 327 IAC 15-11-5(= a):

   = ;   In addition to the NOI letter requirements contained in 327 IAC 15-3, a person regulated under this rule must identify in the NOI letter each point source discharge of wastewater associated with the hydrostatic testing of new or existing commercial pipelines. This identification of point source discharge shall include the following:

(= 1)   The discharge location of each outfall and its associated receiving stream.

(= 2)   The type of wastewater discharged through each outfall.

(= 3)   An identifying outfall number. The numbering shall start at 001 for the first outfall,      &nbs= p;    002 for the second outfall, and continue in that manner until all outfalls are numbered.



      The additional NOI content requirements referred to are found in 327 IAC 15-3-2, which states:

   = ;   Except for permittees covered under 327 IAC 15-5 and 327 IAC 15-13 and as provided= in 327 IAC 15-14-4, the NOI letter shall include the following:

(= 1)   Name, mailing address, and location of the facility for which the notification is submitted.

(= 2)   Standard Industrial Classification (SIC) codes, as defined in 327 IAC 5, up to four = (4) digits, that best represent the principal products or activities provided by the facility.

(= 3)   The person's name, address, telephone number, e-mail address (if available), ownership status, and status as federal, state, private, public, or other entity.

(= 4)   The latitude and longitude of the approximate center of the facility to the nea= rest fifteen (15) seconds, and, if the section, township, and range are provided, the nearest quarter section in which the facility is located.

(= 5)   The name of receiving water, or, if the discharge is to a municipal separate st= orm sewer, the name of the municipal operator of the storm sewer and the ultima= te receiving water.

(= 6)   A description of how the facility complies with the applicability requirement= s of the general permit rule.

(= 7)   Any additional NOI letter information required by the applicable general permit rule.

[2009 OEA 4= 3, page 51 begins]

(= 8)   The NOI letter must be signed by a person meeting the signatory requirements in= 327 IAC 15-4-3(g).

15. As a = matter of law, substantial evidence was presented that Rock= ies complied with all the NOI content requirements found in 327 IAC 15-3-2. A copy = of the NOI was submitted to the Court as Exhibit A of the Affidavit of James D. Thompson (“Affidavit”). Exhibit A contains a cover letter followed by an IDEM NPDES General Permit NOI form completed and submitted by Rockies. Requirements 327 IAC 15-3-2(1) thr= ough (3) are satisfied on page two (2) of Exhibit A. Requirements 327 IAC 15-3-2(4) and= (5) are satisfied by the table found on page four (4) of Exhibit A. Requirements 327 IAC 15-3-2(6) is satisfied on page three (3) of Exhibit A.&= nbsp; Requirements 327 IAC 15-3-2(8) is satisfied on page sixteen (16) of Exhibit A. 327 IAC 15-3-2(7) requires NOI applicants also satisfy the requirements found in 327 I= AC 15-11-5(a).

16. As a = matter of law, substantial evidence shows that Rockies complied with all the permitting requirements found in 327 IAC 15-11-5(a).<= span style=3D'mso-spacerun:yes'> The requirements 327 IAC 15-11-5(a= )(1) through (3) are all satisfied as stated on the table found on page four(4) = of Exhibit A.

17. As a = matter of law, Rockies provided substantial evi= dence that it submitted to IDEM all the information required by law to be issued = the Permit. IDEM does not have to consider any information other than what is required under the applicable a= nd regulations. Hoosier Hills fa= iled to submit contrary evidence that establishes a disputed factual issue relat= ed to the legal sufficiency of the materials submitted in the NOI. Based on the evidence in the recor= d, Rockies is entitled to summary judgment as a matter of law on the issue of whether the information submitted by Rockies to IDEM was sufficient to comply with the statutory and regulatory requirements.

18. In its Petition, Hoosier Hills requested review of whether the probability of groundwater contamination from the construction activity associated with REX East should have caused IDEM to deny the Permit. Petition, p. 5. However, the applic= able regulations in this matter do not require IDEM to consider the possibility = of groundwater contamination. See 327 IAC 15-11-5(c). OEA may only review an IDEM decision to determine whether it conforms to the standards and requirements established by the Indiana General Assembly and = the Water Pollution Control Board. S= idney, supra. As a matter of law, no relief may = be granted for Petitioner Hoosier Hills’ claim that IDEM did not evaluate the probability of groundwater contamination from Ro= ckies’ construction activity, as applicable regulations do not require such from IDEM.

[2009 OEA 4= 3, page 52 begins]

19. In addition, the quality of wastewater discharges allowed by the Permit is controlled by 327 IAC 15-11-7(b) and other regulations[1]. Hoosier Hills has offered no evide= nce that the wastewater discharges will fail to meet those water quality standards. IDEM presumes that= any person that receives a permit will comply with the applicable regulations. = OEA may not overturn an IDEM approval upon speculation that the regulated entity will not operate in accordance with the law. In the Matter of: Objection to the Issuance of Appro= val No. AW 5404, Mr. Stephen Gettelfinger, Washington, Indiana, Cause No. 98-S-J-1958 (Ind. Office of Envt’l. Adjudication, December 8, 1998).<= /p>

20. As a = matter of law, no relief may be granted for Petitioner Hoosier Hills’ claims= of potential economic harm to itself, its customers or to Franklin County from the permit issued to= Rockies, as applicable regulations do not authorize= IDEM to consider these factors in making its determination for this type of permit. See In the Matter of: Issuance of #AW5499/Farm ID #6370, NPDES CAFO= ID #ING806370, Concentrated Animal Feeding Operation, Talara Lykins, Jackson County, Indiana, 2007 OEA 114, 126.

21. To the extent that Hoosier Hills challenged the design or construction of the proj= ect permitted to Rockies, IDEM is not author= ized to base its determination on these factors by the rules adopted by the Water Pollution Control Board.

FINAL ORDER

IT IS THEREFORE ORDERED that= the Petition for Administrative Review, Adjudicatory Hearing and Stay of Effectiveness filed by Hoosier Hills is hereby DISMISSED, and the Permit ap= proval issued by IDEM on April 15, 2008 is hereby AFFIRMED.

&nb= sp;

You are further ad= vised that, pursuant to I.C. § 4-21.5-5, this Final Order is subject to judi= cial review. Pursuant to I.C. &sec= t; 4-21.5-5, 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 in Indianapolis, Indiana this 23rd day of June, 2009.

Hon. Ma= ry L. Davidsen

Chief Environmental Law Judge

&n= bsp;

[2009 O= EA 43: end of decision]

&n= bsp;

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