TOPICS:

8-inch diame= ter PVC (SDR 35)

8-inch diame= ter PVC (SDR 21, ASTM, D2241)

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PRESIDING JUDGE:

Mary L. Davidsen

PARTY REPRESENTATIVES:

IDEM: = ; Julie E. Lang, Esq.

Petitioners: &nbs= p; Frank Revalee, Gary Hoagland, Kimberly Snyder-Quinn; self- represented

Respondent: Philip B. McKiern= an, Esq., Joseph M. Hendel, Esq.;

&n= bsp; Hackman Hulett & Cracraft, LLP

ORDER ISSUED:

June 30, 2009

INDEX CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

&= nbsp; &nbs= p; [2011 OEA 14, page 15 begins]

&nbs= p;

STATE OF = INDIANA &= nbsp; ) = &nb= sp; BEFORE THE INDIANA OFFICE OF

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

COUNTY OF MARION<= /st1:PlaceName> )

IN THE MATTER OF: = &nb= sp; = &nb= sp; )

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

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

CONSTRUCTION PERMIT APPLICATION FOR &= nbsp; )

SANITARY SEWER PERMIT APPROVAL NO. 1969= 4 )

AQUA INDIANA, INC. = &nb= sp; = &nb= sp; ) &= nbsp; &nbs= p;

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

_______________________________________= ______ ) &= nbsp; CAUSE NO. 10-W-J-4380

Frank Revalee, Gary Hoagland, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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

Aqua Indiana, Inc., = &nb= sp; = &nb= sp; = )

Permittee/Respon= dent, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

Indiana Department of Environmental Management, &n= bsp; = ; )

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

= FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER

= ; This matter is before the Office of Environmental Adjudication (“OEA” or “Court”) on Fi= nal Hearing on Petitioners Frank Revalee and Gary Hoagland’s (“Petitioners”) Petitions for Administrative Review of the Indi= ana Department of Environmental Management’s June 1, 2010 Decision of Approval Permit No. 19694 issued to Utility Center, Inc., d/b/a Aqua Indian= a, Inc., for the construction of a sanitary sewer system extension in Fort Way= ne, Allen County, Indiana. Final Hearing was conducted as scheduled on January 25, 2011. The Chief Environmental Law Judge (“ELJ”) having considered the petition, record of the proceedin= g, and evidence, now finds that judgment may be made upon the record as to whe= ther Permit No. 19693 was properly issued as a final order in this cause. The ELJ, by substantial the eviden= ce, and being duly advised, now makes the following findings of fact and conclusions of law and enters the following Final Order:<= /span>

FINDINGS OF FACT<= /o:p>

1. Pe= rmittee/Respondent, Utility Center, Inc., d/b/a Aqua Indiana, Inc. (“Respondent” or “Aqua”) operates a sanitary sewer system in Fort Wayne, Allen County, Indiana. On June 1, 2010, the Indiana Department of Environmental Management (“IDEM”) issued Permit N= o. 19694 (“Permit”), approving Aqua’s application to extend = the existing sanitary sewer system in the Cadillac Drive area.&n= bsp;

[2011 OEA 14, page 16 begins]

2. The Permit specifications authorize Aqua to install approximately 2,890 feet of 8-inch PVC pipe (SDR 35) and 361 feet of 8-inch diameter PVC (SDR 21) ASTM D2241 (“Project”) in order to provide sanitary sewer service to= 31 single-family homes along Cadillac Drive and Dicke Road, Fort Wayne, Allen County, Indiana (“Site”).

3. In addition to imposing specific and general conditions, the Permit requires t= he Project to conform to all provisions of 327 IAC 3.

4. Pe= titioners are property owners in the Cadillac Drive area.&n= bsp; Petitioners submitted letters objecting to the Permit on June 14, 20= 10 and June 15, 2010, respectively. OEA deemed Petitioners’ letters to be Petitions for Administra= tive Review (“Petition”), and assigned the above-captioned cause number. After filing her Peti= tion, Ms. Kimberly Snyder-Quinn’s did not participate in these proceedings; thus, her Petition was dismissed per Court Order issued on August 6, 2010.<= o:p>

5. In= their Petitions, Petitioners requested that the Permit be stayed. OEA set a stay hearing on July 22,= 2010, continued at the parties’ request until August 31, 2010. This cause was heard at a Stay Hea= ring conducted on August 31, 2010.

6. At= the August 31, 2010 Stay Hearing, Petitioner Revalee did not attend in person o= r by counsel, nor did he seek leave from attending. Petitioner Hoagland attended in pe= rson and represented himself. Aqua appeared by legal counsel, Philip B. McKiernan, Esq., and its witness, Proj= ect manager Mr. Patrick Callahan, P.E. IDEM appeared by legal counsel, Julie E. Lang, Esq., and by witness = Mr. Dale Schnaith.

7. Th= is Court denied a Stay in its December 15, 2010 Findings of Fact, Conclusions = of Law and Order on Stay Hearing.

8. At= the January 25, 2011 Final Hearing setting, Petitioner Gary Hoagland attended a= nd represented himself. Petition= er Frank Revalee did not attend in person or by counsel, nor did he seek leave from attending. Permittee/Respondent Aqua Indiana, Inc. attended by utility engineer= Pat Callaghan and by legal counsel Philip B. McKiernan, Esq. The Indiana Department of Environm= ental Management attended by legal counsel Julie E. Lang, Esq. At the January 25, 2011 Final Hear= ing setting, each of the parties stipulated to the admissibility of the Stay Hearing transcript, Stipulated Ex. = A, and the Stay Hearing Exhibits, Stip= ulated Ex. B. Each of the parties sought judgment in their favor, based upon the record from the Stay Hearing. All of the below Fin= dings are based upon these records.

9. In his Petition, during the stay hearin= g, in his September 13, 2010 Closing Comments letter, and in submission of the St= ay Hearing transcript and exhibits at final hearing, Petitioner Hoagland prese= nted testimony on following issues:

a. Th= e home owner cost of the proposed Project is over $20,000 per property. The Project does not include all o= f the total properties in the area, only 70%.

[2011 OEA 14, page 17 begins]

b. To support the Project, each home owner would experience a $320 per month cost increase, placing a sizeable financial burden on the property owners.<= /o:p>

c. The Project will be funded totally by the property owners, without contribution from Aqua or the City of Ft. Wayne.

d. A = nearby area east of Lutheran Hospital has been designated for future commercial development by the Ft. Wayne Planning Commission. The proposed 8-in= ch sewer lines lack capacity sufficient to support future commercial developme= nt, therefore new, larger sewer lines would be required in the future.

e. The proposed 8-inch sewer line (serving 31 properties) will connect to the exis= ting 8-inch line which already services several commercial businesses located on= Jefferson Boulevard. Therefore, it is questionable as to whether the current line will support the additional properties.

f. Mr. Hoagland noted that local health officials were involved in the Project are= a, due to e. coli contamination and runoff.

g. In response to circumstances presented by Aqua that one of the properties which would be served by this Project has a septic tank which overflows sewage on= to the ground unless it is emptied monthly, Mr. Hoagland testified that the properties are adequately and safely served by existing means.

h. Mr. Hoagland confirmed his testimony on cross examination, that he was not awar= e of any laws or rules that were violated by IDEM’s issuance of Permit 196= 94.

10. Aq= ua is responsible to serve an area of Allen County which includ= es the Project area. See Testimony of Patrick Callahan. Requests from area residents led A= qua to pursue the Project. = Id.

11. Pr= oject plans incorporated into the Permit show that 31 homes[1] will connect to the sanitary sewer plant.&= nbsp; The Project will connect to Aqua’s existing sanitary sewer sys= tem at the intersection of Sco= ttwood Drive and Cadillac Drive. Testimony of Patrick Callahan.= From the interconnection point at Scottwood Drive and Cadillac Drive, the wastewater gene= rated in the Project area will flow to an existing wastewater treatment facility through existing 8-inch and 15-inch mains.= The current 15-inch main currently operates at less than half of its= planned capacity. Id. When completed, the 8-inch main= s will have a service capacity of 400 homes, but will serve 31 homes. = Id. The 15-inch mains will have a service capacity of 1300 homes when completed, but will serve the equivalen= t of 64 homes. Id.

12. At= Stay Hearing, Mr. Hoagland cross-examined Mr. Callahan about approximately 12 lo= ts north and east of the Project area, which Mr. Hoagland stated might be subj= ect to commercial development in the future.&n= bsp; Due to the topography of the Project area, the facilities installed = in the Project area would not be able to serve the 12 lots to the north and east of the Project area. Testimony of Patrick Callahan.

[2011 OEA 14, page 18 begins]

13. Aq= ua presented information to residents on how to obtain affordable financing op= tions for their share of the Project costs. Id.

14. Mr. Callahan presented evidence that some residents within the Project area are= now experiencing septic system failures. Id.

15. ID= EM presented evidence that Aqua’s Permit complies with the rules governi= ng issuance of sewer construction permits.&nb= sp; These rules do not have any provisions, requirements, or limitations related to the financial impact to affected property owners by such construction. See Testimony of IDEM Office of Water Quality Facility Construction= and Support Section Chief Dale Schnaith.

cONCLUSIONS OF LAW

= 1.&n= bsp; = ; &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; = ; &n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.5-3-27. 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; = ; &n= bsp; This Court must apply a de novo standard of review to this proceeding when determining the facts at issue. 315 IAC 1-3-10(b); Indiana Dept. of Natural Resour= ces v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993), Jennings Water, Inc. v. Office of Envtl. Adjudication, 909 N.E.2d 102= 0, 1025 (Ind. Ct. App. 2009). Findings of fact must be based exc= lusively on the evidence presented to the Environmental Law Judge (“ELJ”= ), and deference to the agency’s initial factual determination is not allowed. Id.; I.C. § 4-21.5-3-27(d). “The ELJ . . . serves as the= trier of fact in an administrative hearing and a de novo review at that level is necessary. Indiana Department of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100, 103 (Ind. 1993).<= span style=3D'mso-spacerun:yes'> The ELJ does not give deference to= the initial determination of the agency.” Indiana-Kentucky Elec. Corp v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 820 N.E.2d 771 (Ind. Ct. App. 2005). “= De novo review” means that “all issues are to be determined an= ew, based solely upon the evidence adduced at that hearing and independent of a= ny previous findings.” = Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247 = (Ind. Ct. App. 1981).

= 4.&n= bsp; = ; &n= bsp; OEA is required to base its factual findings on substantial evidence. Huffman v. Of= fice of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of OEA review = of NPDES permit); see also I.C. &s= ect; 4-21.5-3-27(d). While the parties disputed whether IDEM’s issuance of the City of Hobart NPDES Permit was proper, OEA is authorized “= to make a determination from the affidavits . . . pleadings or evidence.” I.C. § 4-21.5-3-23(b). “Standa= rd of proof

[2011 OEA 14, page 19 begins]

gener= ally 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. (= Ind. 1983). The "substantial evidence&quo= t; standard requires a lower burden of proof than the preponderance 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, 200= 5 OEA 1, 11-12. Objection to the Denial of Excess Liability Trust Fund Claim Marath= on Point Service, ELF # 9810570/FID #1054, New Castle, Henry C= ounty, Indiana; Winimac Service, ELF #9609539/FID #14748, Winimac, Pulaski County, Indiana; HydroTech Consulting and Engineering, Inc. (04-F-J-3338), 2005 OEA 26, 41.

= 5.&n= bsp; = ; &n= bsp; To prevail on the merits of this case, Petitioner Hoagland must show substantial evidence that the applicable regulations for construction of sanitary sewers stated in 327 IAC 3 were not met in the Per= mit issued to Aqua. OEA reviews IDEM’s decisions to determine whether IDEM acted in conformity with controlling statutes and regulations. See, g.g, In re: Objection to Issuance of Section 401 Water Quality Certification COE ID No. 198800247 Conagra Soybean Processing Co.,= 1998 WL 918585, at *3, OEA Cause No. 98-W-J-2052 (Nov. 12, 1988). Allegations that fail to raise any= issue concerning compliance with controlling legal requirements fail to state a v= alid claim. In re: Objections to Issuance of Public Water Supply Construction Permit No. WS-2924 Issued to t= he City of Mishawaka, = Indiana, 1989 W: 436899, at *6, OEA Cause No. 89-W-J-241 (IDEM, Sept. 1, 1989). IDEM is prohibited from expanding = its requirements for such a Permit beyond those specified in 327 IAC 3.

= 6.&n= bsp; = ; &n= bsp; Mr. Hoagland’s testimony and pleadings show t= hat Petitioners oppose the Project based on the costs they may incur if they are required to connect to the completed Project. Determination of the appropriate cost is allocated to other governme= ntal entities, not OEA or IDEM. Ne= ither OEA nor IDEM may consider cost in determining whether a Project was properly approved, in compliance with 327 IAC 3.&nb= sp; See In Re: Wastewater Treatment Plant and San= itary Sewer Construction Approval No. 16684, Sidney, Indiana, 2004 OEA 99, 102.

= 7.&n= bsp; = ; &n= bsp; Mr. Hoagland’s claim that the Project will not sufficiently accommodate future commercial development, and will require replacement after it is paid for the by the residents does not raise an iss= ue within IDEM or OEA’s authority for review under 327 IAC 3. OEA cannot base its decision to gr= ant a stay or to deem the Permit invalid based upon pecuniary or economic impact,= or upon speculations about possible future impact. In re: Objection to the Denial of Water Quality Certification 2005-576-RDC-A, 2007 OEA 82, 91. In this case, substantial evidence supported the opposite conclusion, that the Project will be able to accommo= date additional usage, but that commercial development anticipated by Mr. Hoagla= nd would not involve the Project facilities.&= nbsp;

[2011 OEA 14, page 20 begins]

= 8.&n= bsp; = ; &n= bsp; Mr. Hoagland confirmed his testimony on cross examination, that he was not aware of any laws or rules that were violated = by IDEM’s issuance of Permit 19694.&nbs= p;

= 9.&n= bsp; = ; &n= bsp; Conversely, IDEM and Aqua each presented substantial evidence that IDEM properly issued Permit Approval No. 19694. The capacity of the proposed sewer= lines would support projected volumes in the Cadillac Drive area. The Permit complies with requireme= nts stated in 327 IAC 3. IDEM was= not authorized to review the financial impact a Project might have of property owners. IDEM further provided substantial evidence that its review, although excluding review of the financial impact on property owners, complied with the authority conveyed to IDEM by the Indiana Legislature and the Water Pollution Control Board. Petitioner Hoagland did not present evidence to refute testimony that the Permit complied with 327 IAC 3, as st= ated by IDEM and Aqua.

FINAL ORDER=

= ; AND THE COURT, being duly advised= , FINDS and ORDERS that Petitioners= Frank Revalee and Gary Hoagland did not meet their burden of showing, by substant= ial evidence, that Respondent/Permittee Utility Center, Inc., d/b/a Aqua Indian= a, Inc. met their burden of showing, by substantial evidence, that Respondent, Indiana Department of Environmental Management properly issued Permit No. 1= 9694 to Utility Center, Inc., d/b/a Aqua Indiana, Inc., and are not entitled to judgment. Respondents present= ed substantial evidence that Permit Approval No. 19694 was properly issued, an= d are entitled to judgment. &nbs= p;

= ; For all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR= EED that Petitioners Frank Revalee and Gary Hoagland’s Petitions for Administrative Revie= w of Permit No. 19694, issued to Utility Center, Inc., d/b/a Aqua Indiana, Inc.,= for a sanitary sewer extension is DENI= ED. Judgment is entered in favor of Permittee/Respondent, Utility Center, Inc., d/b/a Aqua Indiana, Inc. and Respondent, Indiana Department of Environmental Management. This cause is DISMISSED. All fu= rther proceedings are VACATED.<= /o:p>

&n= bsp;

&= nbsp; 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= -5, et seq. 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 27thday of January, 2011 in Indianapolis, IN= .

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = Hon. Mary L. Davidsen

Chief Environmental Law Judge

[2011 OEA 14: end of decision]

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