MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_01CA6791.614151B0" 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_01CA6791.614151B0 Content-Location: file:///C:/C91B324E/0810092009OEA118HulmanStreetSewerExpansion.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii"
Objection to the Issuance of Construction Permit Approval No. 19077=
State Road 46 and
2009 OEA 118, (08-W-J-4124)
[2009 OEA 1= 18, page 118 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 118, cite this case as =
&nbs=
p;
Topics:
sewer
easement
summary judgment
underground storage tank
free product
excavation
reimbursement
costs
corrective action
initial site characterization
corrective action plan
tank removal
328 IAC 1-3-5(d)(14)
field screening
MNA
monitored natural attenuation,
Presiding Environmental Law Judge= :
Mary L. Davidsen
Party representatives:
IDEM: = &nb= sp; = Sierra L. Alberts, Esq.
Petitioners: &nbs= p; &= nbsp; &nbs= p; David P. Friedrich, Esq.;
&nbs= p; &= nbsp; &nbs= p; &= nbsp; Wilkinson Goeller Modesitt Wilkinson & Drummy
Respondent/Permittee: &nb= sp; K. Robert Schalburg, Esq.; Modesitt Law Firm PC &n= bsp;  = ;
Order issued:
August 10, 2009
Index category:
Water
Further case activity:
[none]
[2009 OEA 1= 18, page 119 begins]
IN THE MATTER OF:= &nb= sp; = &nb= sp; = )
<= span style=3D'mso-tab-count:1'> &= nbsp; )
OBJECTION TO THE ISSUANCE OF = &nb= sp; ) &= nbsp;
CONSTRUCTION PERMIT APPROVAL NO. 19077 &= nbsp; )
______________________________________________
Mark Haring and Leslie Haring, = &nb= sp; = )
Petitioners, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
Terre Haute Sanitary District, = &nb= sp; = &nb= sp; )
Permittee/Respon= dent, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
Indiana Department of Environmental Management, &=
nbsp; )
Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
This constitutes notice of a Final Order. This matter came before the Court = on Petitioners Mark and Leslie Haring’s May 28, 2008 Petition for Administrative Review, by counsel, on Permittee/Respondent’s Terre Ha= ute Sanitary District’s September 26, 2008 and Indiana Department of Environmental Management’s (IDEM) September 30, 2008 respective Motio= ns for Summary Judgment, by counsel, and on Permittee/Respondent’s Decem= ber 30, 2008 Motion to Dismiss, which pleadings are a part of the Court’s record; and the Chief Environmental Law Judge (“ELJ”) having re= ad and considered the petitions, motions, and the briefs of the parties, now f= inds that judgment may be made upon the record; and the ELJ, being duly advised,= now makes the following findings of fact and conclusions of law and enters the following Final Order:
F= INDINGS OF FACT
[2009 OEA 1= 18, page 120 begins]
3.&n= bsp; On May 30, 2008, the Court ordered Petitioners to supplement their petition by including a copy of the IDEM action they sough= t to appeal, and to copy the Petition on the other parties. Petitioners complied in their June= 2, 2008 Amended Petition for Administrative Review and Request for an Administrative Hearing, but did not modify the substance of their grievance against IDEM’s issuance of the Construction Permit.
1.&n= bsp; The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner= of the Indiana Department of Environmental Management (“IDEM”) and= the parties to this controversy pursuant to I.C. § 4-21.5-7, et seq.
[2009 OEA 1= 18, page 121 begins]
2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.5-3-27, and 315 IAC 1-2-1(9). Findings of fact they 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, the District and IDEM both moved for summary judgment in opposition to the Petition as to whether any genuine is= sues of material fact exist that the location of the project on Petitioners̵= 7; property affects whether IDEM correctly issued Construction Permit 19077 to= the District.
4.&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. § 4-21.5-3-23; Wade v.
5.&n=
bsp;
The moving party bears the burden of establishing t=
hat
summary judgment is appropriate.
“A genuine issue of material fact exists where facts concernin=
g an
issue that would dispose of the litigation are in dispute of where the
undisputed facts are capable of supporting conflicting inferences on such an
issue.” Laudig v. A fact is “material” i=
f it
helps to prove or disprove an essential element of plaintiff’s cause =
of
action. Weide v. Dowden, 664 N.E.2d 742, 747 (Ind. Ct. App. 1996). All facts and inferences must be
construed in favor of the non-movant.
Gibson v.
6.&n=
bsp;
In this case, Petitioners, as the parties opposing
summary judgment, did not respond.
Typically, a party opposing summary judgment must present specific f=
acts
demonstrating a genuine issue for trial.&n=
bsp;
Hale v. Community Hospitals =
of
Indianapolis, 567 N.E.2d 842, 843 (Ind. Ct. App. 1991); citing Elkhart Community School Corp. =
v.
Mills, 546 N.E.2d 854 (Ind. Ct. App. 1989). An opposing party’s mere
assertions, opinions or conclusions of law will not suffice to create a gen=
uine
issue of material fact as 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, 1=
22
(Ind. Ct. App. 1985). Factual
disputes that are irrelevant or unnecessary will not be considered. Owen
v. Vaughn, 479 N.E.2d 83, 87 (Ind. Ct. App. 1985). Once each moving party sets out a =
prima
facie case in support of the summary judgment, the burden shifts to the
non-movant to establish a factual issue.&n=
bsp;
Petitioners did not respond to the motions for summary judgment. As opponents to summary judgment a=
re not
required to respond, this Court will not default Petitioners for failing to
meet a discretionary obligation.
This Court may not craft Petitioners’ responsive arguments.
[2009 OEA 1= 18, page 122 begins]
7.&n= bsp; The ELJ is not permitted to weigh the evidence or j= udge credibility when deciding whether to grant summary judgment. “Summary judgment must be de= nied if the resolution hinges upon state of mind, credibility of the witnesses, = or the weight of the testimony. Mere improbability of recovery at trial does not justify the entry of summary judgment against” a party. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 706 (Ind. Ct. App. 1999).
8.&n=
bsp;
The OEA’s findings of fact must be based excl=
usively
on the evidence presented to the ELJ and deference to the agency’s
initial factual determination is not allowed. I.C. § 4-21.5-3-27(d); Indiana 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, 781 (Ind. App. 2005). “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.” Grissell
v. Consl. City of
9.&n=
bsp;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Office of Environmental
Adjudication, 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 dispute whether =
IDEM
correctly issued Permit 19077 without regard to Petitioners’ intended
future construction articulated to IDEM in Petitioners’ Petition for
Administrative Review, 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 ‘preponderan=
ce
of the evidence test’ to a ‘beyond a reasonable doubt’
test. The test ‘clear a=
nd
convincing evidence’ test is the intermediate standard, although many
varying descriptions may be associated with the definition of this intermed=
iate
test.” Matter of
<= span style=3D'mso-list:Ignore'>10.&= nbsp; I.C. § 4-21.5-3-7(a)(1) (1998) provides that to qualify for administrative review of an agency order, a person must:
(1)= State facts demonstrating that:
(A)&= nbsp; &nbs= p; the petition is a person to whom the order is specifically directed;
(B)&= nbsp; &nbs= p; the petitioner is aggrieved or adversely affected by the order; or
(C)&= nbsp; &nbs= p; the petitioner is entitled to review under any law.=
&=
nbsp; Huffman
v. Office of Environmental Adjudication, 811 NE.2d 806, 810 (
[2009 OEA 1= 18, page 123 begins]
11. ̶=
0;AOPA
[I.C. § 4-21.5, et seq.] d=
efines
who qualifies for administrative review. When a statute is clear, we do not
impose other constructions upon it.
Ind. Bell tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351, 354 (Ind.1999)
“(other cites omitted)
12.&= nbsp; Petitioners are not the persons to whom the order is specifically directed, nor has the= re been a demonstration or allegation that Petitioners seek review under I.C. § 4-21.5-3-7(a)(1)(C) (Huffman specifically prohibited review of “public harm”, versus personalized harm, Id. at 812, therefore OEA cannot analyze Petitioners’ pled harms as providing them with a right to review under a public harm theory).= Petitioners’ eligibili= ty to seek administrative review in this matter requires that they demonstrate th= at they are aggrieved or adversely affected, as stated in I.C. § 4-21.5-3= -7(a)(1)(B), by IDEM’s order issuing construction permit approval No. 19077.
13.
14.&=
nbsp; In
Huffman, the Supreme Court whether a private citizen/corporation own=
er was
entitled to seek review of an NPDES permit for a source downstream from the
corporation’s property. 810
N.E.2d 806. Ms. Huffman suppo=
rted
her aggrieved or adversely affected status by asserting that while she did =
not
reside on the corporate property, she had managed it and entered it since
1987.
15. In this case, Petitioners sought review for harm alleged to their property interests. This Court is ther= efore limited to analyzing the effect of the permitted activity on the Petitioners’ property pecuniary interests.
16.&= nbsp; As Respondents IDEM and the District correctly argu= e, the OEA has considered several appeals of sewer construction permit approva= ls based upon impact to land use, and has established and published precedent rejecting land use as a dispositive factor, per I.C. § 4-21.5-3-27(c), including In re: Wastewater Treatment Plant and San= itary Sewer Construction Approval No. 16684, Sidney, Indiana, 2004 OEA 99 (“Sidney WWTP”) and Obj= ection to the Issuance of 327 IAC Article 3 Construction Permit Application Plans = and Specifications for Blue River Valley Area Sanitary Sewer and Water Project Permit Approval No. 16689, New Castle, Henry County, Indiana, 2005 OEA 1 (“Blue River Valley”).
[2009 OEA 1= 18, page 124 begins]
17. Petit= ioners presented evidence, in their Petition for Administrative Review, Amended Petition, and Status Report, that Petitioners believe that IDEM erred in issuing the Permit because “Dr. Haring will be unable to construct the buildings if the sewer lines run across Haring’s property as set fort= h in the Construction Permit”.
18.&= nbsp; In determining whether Petitioners may prevail in this matter, 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.<= span style=3D'mso-spacerun:yes'>
19. In th=
is
matter, the applicable regulations in this matter do not require the IDEM to
consider either the potential costs to the residents or whether the selected
location is not most accommodating to the surface usage and economic value =
of
the property, in determining whether the proposed construction complies with
327 IAC 3.
20. In th= is matter, substantial evidence supports the conclusion that Construction Perm= it 19077 complies with the applicable regulatory requirements stated in 327 IA= C, et seq. To the extent available at law, Petitioners’ legal interests were properly addressed by the Permittee= and IDEM in its issuance of permit 19077.
21. This =
Court
must presume that any person that receives a permit will comply with the
applicable regulations. OEA m=
ay not
overturn an IDEM approval upon speculation that the regulated entity will n=
ot
operate in accordance with the law.
In the Matter of:
Objection to the Issuance of Approval No. AW 5404, Mr. Stephen
Gettelfinger, Washington, Indiana,
1998 WL 918589 (
22.&=
nbsp; Petitioners
have alleged that they are sufficiently aggrieved and adversely affected. The District and IDEM have present=
ed
sufficient evidence that no genuine issue of material fact exists, as a mat=
ter
of law, that permit 19077 was properly issued as a matter of law. Beyond the assertion stated in the=
ir
Petition for Administrative Review and following pleadings, Petitioners have
elected not to present evidence that Permit 19077 was improperly issued.
= FINAL ORDER
IT IS THEREFORE O= RDERED, ADJUDGED AND DECREED that the Petition and Amended Petition for Administrative Review filed by Petitioners Mark Haring and Leslie Haring is= DENIED and DISMISSED.
IT IS FURTHER ORD= ERED, ADJUDGED AND DECREED that the Motions for Summary Judgment filed by Permittee/Respondent Terre Haute Sanitary District and by the Indiana Department of Environmental Management are GRANTED. The Motion to Dismiss filed by Permittee/Respondent Terre Haute Sanitary District is DENIED.
You are further advi= sed that, pursuant to I.C. § 4-21.5-5, et seq., this Final Order is subject to judicial review. Pursuant to I.C. § 4-21.5-5, = et seq., a Petition for Judicial Review of this Final Order is timely only if it is filed with a ci= vil court of competent jurisdiction within thirty (30) days after the date this notice is served.
IT IS SO ORDERED in=
 =
; &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp; Hon.
Mary L. Davidsen
&nb=
sp; =
&nb=
sp; =
&nb=
sp; Chief
Environmental Law Judge
[2009 OEA 118: end of decis= ion]
2009 OEA 118 in .doc format
2009 OEA 118 in .pdf format
Objection to the Issuance of Construction Permit Approval No. 19077
State Road 46 and Hulman Street Sewer Expansion Terre Haute, Vigo County,
Indiana
2009 OEA 118, (08-W-J-4124)