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Objection to the Denial of WT3 Drinking Water Operator Exam
James E. Pence
Ashley,
2010 OEA 183, (10-W-J-4425)
[2010 OEA 1= 83, page 183 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2010 OEA= 183 cite this case as
<=
/span>James
E. Pence, 2010 OEA 183.
TOPICS:
hearing
drinking water
exam
late
application
postmarked
327 IAC 8-12-4(b)
I.C. § 13-18-11-6.5(= c)
PRESIDING JUDGE:
Catherine Gibbs
PARTY REPRESENTATIVES:
IDEM: = April Lashbrook, Esq.
Petitioner: = James E. Pence, pro se
ORDER ISSUED:
November 4, 2010
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2010 OEA 1= 83, page 184 begins]
STATE OF
&n= bsp;  = ; &n= bsp;  = ; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
&n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; )
OBJECTION TO THE DENIAL O= F &= nbsp; &nbs= p; )
WT3 DRINKING WATER OPERAT= OR EXAM ) &= nbsp;
JAMES E. PENCE &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; CAUSE NO. 10-W-J-4425
ASHLEY, STEUBEN COUNTY, I= NDIANA &= nbsp; )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
<= /span>This matter came before the Office of Environmental Adjudication (the “OEA” or the “Court”) on the hearing on the petition for review filed by James E. Pence (the “Petitioner”); and the Court, having read the pleadings and heard the evidence, enters the followi= ng findings of fact, conclusions of law and final order. The Environmental Law Judge (ELJ) = finds in favor of the Indiana Department of Environmental Management (IDEM).
FINDINGS OF FACT
1. &n= bsp; On September 22, 2010, James E. Pence, the Petition= er in this matter, submitted an application to the IDEM to take the examination for WT3 Water Works Operator Certification scheduled for November 3, 2010.<= /p>
2. &n= bsp; The IDEM had provided notice to the public, on its website on or around May 20, 2010 and through written notices on or around = July 16, 2010, that the examination was scheduled for November 4, 2010.
3. &n= bsp; The IDEM notified the Petitioner on October 7, 2010 that due to his failure to submit his application in a timely manner, his application to take the WT3 exam was denied.
4. &n= bsp; On October 21, 2010, the Petitioner filed his petit= ion for review of the denial of his application to take the WT3 exam on Novembe= r 4, 2010.
5. &n= bsp; A hearing was held on November 3, 2010.
6. &n= bsp; The Petitioner had been previously certified. His certification expired on June = 30, 2007. Due to his deployment b= y the Indiana National Guard, he did not renew his certification.
Applicable Law
[2010 OEA 1=
83, page
185 begins]
 =
;
 =
; The
Office of Environmental Adjudication (“OEA”) has jurisdiction o=
ver
the decisions of the Commissioner of the IDEM and the parties to this
controversy pursuant to I.C. § 4-21.5-7-3. The Petitioner has the burden of p=
roving
that the IDEM failed to consistently apply statutory and regulatory
requirements.
327 IAC 8-12-4(b) states:
<=
span
style=3D'mso-list:Ignore'>(b)&=
nbsp;
A person wishing to be examined for wat=
er
treatment plant or water distribution system certification shall fulfill the
following requirements:
<=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp; &nbs=
p;
Complete an application on a form appro=
ved
by the commissioner that:
<=
span
style=3D'mso-list:Ignore'>(A)&=
nbsp;
contains true and accurate information =
to
the best of the applicant's knowledge; and
<=
span
style=3D'mso-list:Ignore'>(B)&=
nbsp;
is free of omissions and
misrepresentations, either of which may result in rejection of the applicat=
ion
or revocation of any certificate previously granted.
<=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp; &nbs=
p;
Submit a completed application, with the
necessary fee, to the commissioner postmarked not later than forty-five (45)
days preceding the date of the examination.
I.C. § 13-18-11-6.5(c) states: ̶= 0;A water treatment plant operator or a water distribution system operator who fails to renew a certificate within one (1) year after the date the certifi= cate expires may not receive a renewal certificate without reexamination.”=
CONCLUSIONS OF LAW
1. &n= bsp; 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.
2.&n= bsp; Findings of fact that may be construed as conclusio= ns of law and conclusions of law that may be construed as findings of fact are= so deemed.
3. &n= bsp; In this instance, the Petitioner was required to ta= ke the examination because he did not renew his certification within one of ye= ar of the expiration date.
4. &n= bsp; Applications to take the WT3 exam must be postmarke= d at least 45 days prior to the examination date. In this case, the application must= be postmarked by September 20, 2010. The Petitioner’s application was postmarked September 22, 2010= .
5. &n= bsp; The Petitioner has failed to show that the IDEMR= 17;s action was not in compliance with the applicable statutes and regulations. =
[2010 OEA 1=
83, page
186 begins]
FINAL ORDER
 =
; AND
THE COURT, being duly advised, hereby ORDERS,
JUDGES AND DECREES that the Petitioner failed to meet his burden of
proof. Judgment is entered fo=
r the
Indiana Department of Environmental Management. The Petition for Review is 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.&nb=
sp;
This is a Final Order subject to Judicial Review consistent with
applicable provisions of I.C. § 4-21.5. 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=
IS SO
ORDERED this 4th day of November, 2010 in
Hon. Catherine Gibbs= p>
Environmental Law Judg=
e
[2010 OEA 183: end of decision]
=
2010
OEA 183 in .doc format
=
2010
OEA 183 in .pdf format
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Objection to the Denial of WT3 Drinking Water Operator Exam
James E. Pence
Ashley,
2010 OEA 183, (10-W-J-4425)