Topics:

Objection to the Issuance of Sanitary Sewer Construction Permit Approval No. 19748

Smith Road Residence Sanitary Sewer<= /b>

Bloomington, Monroe County, Indiana=

2010 OEA 187, (10-W-J-4427)

[2010 OEA 1= 87, page 187 begins]

=

OFFICIAL S= HORT CITATION NAME: When referring to 2010 OEA 187 cite this case as

   &nbs= p;        Raymond Moore Enterprises, Inc., 2010 OEA 187.

TOPICS= :

late

postmark

dismissal

Raymond Moore Enterprises, Inc.

I.C. § 4-21.5-3-7(a)(3)(A)

315 IAC 1-3-3(c)

PRESIDING = JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM:   = ;           Steven Griffin, Esq.

Petitioner:  = ;       Frank Buffetta, pro se

Permittee:  =        Raymond Moore Enterprises, Inc.

ORDER ISSU= ED:

November 12, 2010

INDEX CATE= RGORY

Water

FURTHER CASE ACTIVITIY:

[none]

=

           &nb= sp;            =             &nb= sp;            =             &nb= sp;            =

[2010 OEA 1= 87, page 188 begins]

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

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

COUNTY OF MARION        &= nbsp;           )<= /p>

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

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

OBJECTIONS TO THE ISSUANC= E OF         &= nbsp;           &nbs= p;         )

SANITARY SEWER CONSTRUCTI= ON         &= nbsp;           &nbs= p;         )        &= nbsp;

PERMIT APPROVAL NO. 19748=         &= nbsp;           &nbs= p;            &= nbsp;        )

<= st1:address w:st=3D"on">SMITH ROAD RESIDENCE SANITARY SEWER=         &= nbsp;      )

BLO= OMINGTON, MONROE COUNTY, INDIANA           )

_________________________= ______________________ )&n= bsp;          CAUSE NO. 10-W-J-4427

Frank Buffetta,        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p; )

            <= /span>Petitioner,        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;          )

Raymond Moore Enterprises= , Inc.,        &= nbsp;           &nbs= p;            &= nbsp;          )        &= nbsp;

            <= /span>Permittee/Respondent,        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;    )

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

            <= /span>Respondent        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;       )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER<= /u>

            <= /span>This matter came before the Office of Environmental Adjudication (the OEA or the Court) on the Petition for Review filed on November 5, 2010 by Frank Buffet= ta (the Petitioner). The Court, = having read the petition and attachments, enters the following findings of fact, c= onclusions of law and final order.

Summary of Decision

            <= /span>The Petitioner has appealed the Indiana Department of Environmental Management’s (the IDEM) approval of the Construction Permit (Approval= No. 19748), issued to Raymond Moore Enterprises, Inc. on July 30, 2010. The Petitioner contends that he wa= s not notified of the construction permit and that he is aggrieved or adversely affected. The Court finds tha= t the Petitioner has failed to timely file the Petition for Review.

FINDINGS OF FACT

1.   &n= bsp; On July 30, 2010, the IDEM issued Approval No. 1974= 8 to Raymond Moore Enterprises, Inc. (the Permittee). The Approval authorizes the constr= uction of a proposed sanitary sewer to be located at the east side of Smith Road approximately 350 feet south of Moores Pike, Bloomington, Indiana.

2.   &n= bsp; The petition for review was sent by U.S. Mail, but = was not postmarked. The petition = is dated October 25, 2010, but was received by the OEA on November 5, 2010.

&nb= sp;

3.   &n= bsp; The Petitioner was not notified of the Approval by = the IDEM or the Permittee.

=

[2010 OEA 1= 87, page 189 begins]

4.   &n= bsp; The Petitioner learned of the Approval on or about September 27, 2010.

Applicable Law<= /p>

      = ;      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 Administrative Orders and Procedures Act (I.C. § 4-21.5, otherwise kno= wn as AOPA) governs the procedure for appeals of agency decisions. Specifically, I.C. § 4-21.5-3-7(a)(3)(A) states that a Petition for Review must be filed within fifteen (15) days after the person is given notice of the order.

   = ;         The OEA has promulgated a rule, 315 IAC 1-3-3(c), relating to the filing of petitions for review. 315 IAC 1-3-3(c) states that:

The filing of a document with the office is complete on the earliest = of the following:

(= 1)      =             &nb= sp;            =             &nb= sp;            =        The date on which the document is delivered to the office.

(= 2)      =             &nb= sp;            =             &nb= sp;            =        The date of the postmark on the envelope containing= the document if the document is mailed to the office by United States mail.

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.

&n= bsp;

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;     The OEA does not have jurisdiction to hear appeals = that are not timely filed. Objecti= ons to the issuance of this Approval had to be filed within fifteen (15) days of J= uly 30, 2010. The Petitioner did = not file a timely petition within this time frame.

4.&n= bsp;     However, the Petitioner did not receive notice of t= he Approval. He did not learn of= this Approval until after the appeals period had run. In his petition, the Petitioner st= ates “I found out about the project approximately one week before the digg= ing began, which was on or about September 27, 2010.” Therefore, the petition had to be = filed within fifteen days of the Petitioner learning of the Approval, on or before October 12, 2010.

5.&n= bsp;     Once he knew of the Approval, he was required to fi= le his petition within fifteen days of when he learned of the Approval. If he had filed within fifteen day= s of learning of the Approval, the issue of whether he was entitled to notice wo= uld be relevant. However, because= he did not timely file, it is irrelevant whether the Petitioner was entitled to notice and didn’t receive it.

[2010 OEA 1= 87, page 190 begins]

6.&n= bsp;     The OEA received the petition for review on Novembe= r 5, 2010. The petition was dated = October 25, 2010 and sent by U.S. Mail postage prepaid. As the petition was not postmarked= , the OEA filed the petition as of the date that it was received.

7.&n= bsp;     The petition was not filed within fifteen days of t= he Petitioner learning of the Approval. He failed to timely file his petition, regardless of whether the petition was considered filed as of October 25, 2010 or November 5, 2010.

FINAL ORDER

      = ;      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition for Review fil= ed by Frank Buffetta 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. 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 12th day of November, 2010 in = Indianapolis, IN.

Hon. Catherine Gibbs
Environmental Law Judg= e

[2010 OEA 1= 87: end of decision]

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