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Objection to the Issuance of Construction Permit
2010 OEA 168, (10-W-J-4375)
[2010 OEA 1= 68, page 168 begins]
OFFICIAL S= HORT CITATION NAME: When referring to 2010 OEA 168 cite this case as
&nbs=
p; Aqua
Indiana, Inc., 2010 OEA 168.
TOPICS=
:
hearing
sanitary sewer
need
costs
PRESIDING = JUDGE:
Catherine Gibbs
PARTY
REPRESENTATIVES:
IDEM:  = ; Denise Walker, Esq.
Petitioner:  = ; W.F. Quinn, pro se
Permittee: =
Philip
B. McKiernan, Esq., Joseph M. Hen=
del,
Esq.; Hackman Hullett & Cracraft
ORDER ISSU=
ED:
October 15, 2010
INDEX =
CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2010 OEA 1= 68, page 169 begins]
STATE OF = INDIANA &= nbsp; ) &= nbsp; &nbs= p; BEFORE THE INDIANA OFFICE OF
&= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MA= TTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = )
OBJECTION= TO THE ISSUANCE OF &= nbsp; &nbs= p; )
CONSTRUCT= ION PERMIT = &nb= sp; = ) &= nbsp;
EXTENSION= PERMIT APPROVAL #19694 &nbs= p; )
_________= _______________________________ ) CAUSE NO. 10-W-J-4375
W.F. Quin= n, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
Petitioner,= &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
Aqua Indi= ana, Inc., &n= bsp;  = ; &n= bsp;  = ; )
Permittee/R= espondent, &= nbsp; &nbs= p; &= nbsp; )
Indiana Department of Environmental Management,&nbs= p; )
Respondent<= span style=3D'mso-tab-count:5'> &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
<= /span>This matter came before the Office of Environmental Adjudication (OEA or the Cou= rt) for a hearing on William F. Quinn’s Petition for Review. The Court, having read the pleadin= gs, heard the testimony and examined the evidence now enters the following find= ings of fact, conclusions of law and final order in favor of Aqua Indiana, Inc. = and the Indiana Department of Environmental Management.
FINDINGS OF FACT
1.&n=
bsp;
On June 7, 2010, the Indiana Department of
Environmental Management (IDEM) issued Construction Permit Approval No. 196=
94
(the Permit) to Aqua Indiana, Inc. (the Permittee) authorizing the construc=
tion
of a sanitary sewer system extension to be located north of Scottwood Court=
and
Cadillac Drive in Fort Wayne, Indiana.
2. William
F. Quinn (the Petitioner) filed his petition for review on June 8, 2010.
3. The
Court issued a Notice of Incomplete Filing and Order to Supplement Petition=
on
June 14, 2010, ordering the Petitioner to supplement his petition for review
within thirty (30) days. The
Petitioner failed to do so. T=
he
Court then issued a Notice of Proposed Order of Default on July 21, 2010. The Petitioner responded on July 2=
6,
2010. The Court set aside the
proposed order of default and set for a prehearing conference on September =
7,
2010. The Petitioner and the =
IDEM
appeared at the prehearing conference.&nbs=
p;
At the prehearing
[2010 OEA 1= 68, page 170 begins]
conference, at the request of the Petitioner, this case=
was
set for a final hearing on October 8, 2010. A hearing was held on this date. All parties appeared; evidence and
testimony was presented.
4.&n= bsp; The Petitioner, in the hearing and his petition for review, objects to the Permit on the basis that the Permittee has not shown= a need for the sewer. He also o= bjects to the costs associated with the construction.
Applicable Law
 =
; The
Indiana Department of Environmental Management (IDEM) is authorized to
implement and enforce specified
The
Petitioner has the burden to prove that the IDEM erred in issuing this
Permit. That requires present=
ing proof
that the IDEM or the Permittee failed to comply with all of the applicable
requirements. The requirement=
s for
sanitary sewers are found in 327 IAC 3.&nb=
sp;
In making the determination to issue the Permit, the IDEM may only
consider whether the plans and specifications for the sewer system meet the=
se
regulations. Therefore, the
Petitioner must specify which regulation the sewer system does not meet.
There is no requirement in 327 IAC 3 that a permit applicant must show that a need exists before being granted a construction permit. Further, there is no requirement t= hat IDEM must consider the financial impact on affected parties in determining whether it is proper to issue a permit.
CONCLUSIONS OF LAW
1.&n=
bsp;
The Petitioner testified that his septic system had=
not
failed and there was no need for a sanitary sewer system at his property. He further testified that he did n=
ot
have the financial resources to pay for his portion of the construction cos=
ts. He was unable to identify any other
alleged deficiencies in the Permit.
2.&n= bsp; Neither of these things must be considered by the I= DEM in deciding whether to issue a construction permit.
3.&n= bsp; In this instance, the Petitioner has been unable to show that the Permit is deficient. <= /span>The Petitioner has failed to meet his burden of proof that the IDEM erred in issuing this Permit. Judgment= in the IDEM’s and the Permittee’s favor is appropriate.
[2010 OEA 1= 68, page 171 begins]
FINAL ORDER
 =
; AND THE COURT, being duly ad=
vised,
hereby ORDERS, ADJUDGES AND DECREES that judgment is entered in favo=
r of
the Indiana Department of Environmental Management and Aqua Indiana, Inc. The Petition for Review is DISMISSED. All further proceedings are VACATED.
 =
; 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. &sec=
t;
4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely on=
ly
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 th=
is
15th day of October, 2010 in
Hon. Catherine Gibbs= p>
Environmental Law Judg= e
[2010 OEA 168: end of decision]
2010 OEA 168 in .doc format
2010
OEA 168 in .pdf format
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Objection to the Issuance of Construction Permit
2010 OEA 168, (10-W-J-4375)