Objections to the Issuance of NPDES Permit No. 0022497

Water-Wastewater Utilities, City of Carmel, Indiana.

1999 OEA 13 (98-W-J-1976)

 

 

[1999 OEA 13, page 13 begins]

 

OFFICIAL SHORT CITATION NAME: When referring to 1999 OEA 13, cite this case as

            Carmel Water-Wastewater Utilities, 1999 OEA 13.


TOPICS
:

municipal

NPDES

maximum daily effluent limit

daily limit

E. coli

water quality

mixing zone

receiving stream

effluent limit

water quality standards

point source

discharge

financial hardship

 

PRESIDING JUDGE:

Penrod

 

PARTY REPRESENTATIVES:
Petitioner: Nicholas K. Kile, Esq.

IDEM: Ms. Hala Silvey, Esq.

 

ORDER ISSUED:

March 25, 1999

 

INDEX CATEGORY:

Water

 

FURTHER CASE ACTIVITY:

[none]

 

[1999 OEA 13, page 14 begins]

STATE OF INDIANA ) BEFORE THE INDIANA OFFICE OF

) ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION )

 

IN THE MATTER OF: )

)

OBJECTIONS TO THE ISSUANCE OF )

NPDES PERMIT NO. 0022497 ) CAUSE NO. 98-W-J-1976

WATER-WASTEWATER UTILITIES )

CITY OF CARMEL, INDIANA )

 

FINAL ORDER

 

FINDINGS OF FACT

 

1. Petitioner is the City of Carmel ("Carmel"), a municipal corporation in the State of Indiana.

 

2. Respondent is the Commissioner, Indiana Department of Environmental Management ("IDEM").

 

3. On March 5, 1998, IDEM issued National Pollution Discharge Elimination System ("NPDES") Permit No. 0022497 (the "Permit") to Carmel. See Petitioner's Exhibit 1. The Permit contains a maximum daily effluent limit for E. coli bacteria of 235 count per 100 milliliters (the "Daily Limit"). See Petitioner's Exhibit 1, Permit, at p. 3 of 29. The Daily Limit within the Permit is the subject of this appeal.

 

4. Prior to the issuance of the Permit and pursuant to 327 I.A.C. 5-3-9, Carmel timely submitted written comments to IDEM on Carmel's draft NPDES permit ("Comments"). See Exhibit 1, Permit, at Fact Sheet p. 7 of 10. Carmel's Comments objected to the limits for E. coli on the grounds that they do not account for mixing within the receiving stream and included a request that the E. coli limit be adjusted to include such mixing. Id. at p. 8 of 10.

 

5. IDEM rejected Carmel's Comments requesting that IDEM consider the water quality of the receiving stream and apply a mixing zone in calculating Carmel's effluent limit for E. coli. See Petitioner's Exhibit 9, Deposition of Jay Hanko, at pp. 36, 38-9. IDEM interprets 327 I.A.C. 2-1-6(d) as establishing standards that "are applied directly as effluent limitations" and that there is no "allowance for either mixing zones or dilution by discharge induced mixing." See Petitioner's Exhibit 1, Fact Sheet at p. 8 of 10. IDEM did not consider or use the water quality of the receiving stream when it set the Daily Limit in Carmel's Permit nor did it apply the water quality standard for E. coli outside the mixing zone. Transcript of Final Hearing, Petitioner's Case-in-Chief, at p. 17; Transcript of Final Hearing, Respondent's Case-in-Chief, at Gavin Cross-Examination p. 73.

 

[1999 OEA 13, page 15 begins]

 

6. On March 20, 1998, Carmel timely appealed the Permit's Daily Limit requirement and also requested that the Chief Administrative Law Judge ("CALJ") stay the effectiveness of the Daily Limit. The CALJ held a prehearing conference and stay hearing on Carmel's appeal and request to stay imposition of the Daily Limit on July 23, 1998. On September 11, 1998, the CALJ issued an order denying Carmel's request to stay imposition of the Daily Limit.

 

7. On September 14, 1998, the CALJ held a hearing on the merits of Carmel's appeal ("Final Hearing").

 

8. At the Final Hearing, Carmel presented evidence that 327 I.A.C. 2-1-6(d) by its terms does not mandate imposition of the Daily Limit and that IDEM does not universally apply the water quality standards of this rule as effluent limits themselves. See Transcript of Stay Hearing, Gavin Cross-Examination, at p. 91; Petitioner's Exhibit 9, Deposition of Jay Hanko, at p. 32; Petitioner's Exhibit 8, "Procedure for Developing NPDES Permit Limits for Conventional Pollutants, Chlorine, Ammonia, and E. coli ("Non-Rule Policy Document"), at p. 4. Carmel also presented evidence that the water quality standards contained in 327 I.A.C. 2-1-6(d) are not, by their terms, effluent limits. See Transcript of Final Hearing, Petitioner's Case-in-Chief, at pp. 10-14, 15-6.

 

9. At the Final Hearing, IDEM offered evidence in an attempt to support its interpretation of 327 I.A.C. 2-1-6(d), relying on the personal opinion of one of the rule's drafters and a Non-Rule Policy Document. See Transcript of Final Hearing, Petitioner's Case-in-Chief, at Gavin Cross-Examination p. 30; Petitioner's Exhibit 8, Non-Rule Policy Document.

 

CONCLUSIONS OF LAW

 

1. 327 I.A.C. 2-1-6(d) does not mandate imposition of a maximum daily effluent limit for E. coli bacteria of 235 count per 100 milliliters in all cases.

 

2. The water quality standards contained in 327 I.A.C. 2-1-6(d) are not by themselves effluent limits.

 

3. 327 I.A.C. 5-2-11.1(a) mandates that the water quality standards set forth in 327 I.A.C. 2-1-6 are not enforceable against point source discharges "until translated into effluent limits." In performing this translation, 327 I.A.C. 5-2-11.1(g) requires that IDEM consider and "use the representative upstream concentration of a substance in determining the water quality-based effluent limitations for that substance." 327 I.A.C. 2-1-4(a) further requires IDEM to apply the water quality standards at a point outside the appropriate mixing zone.

[1999 OEA 13, page 16 begins]

4. In an appropriate case and after considering the water quality of the receiving stream and the appropriate mixing zone, IDEM might properly translate the effluent limit for E. coli in a particular NPDES permit as being equal to the water quality standard set forth in 327 I.A.C. 2-1-6(d). Here, however, in establishing the effluent limit for E. coli, IDEM did not consider the upstream concentrations of E. coli in the receiving stream or apply the water quality standard for E. coli outside the appropriate mixing zone as required by the rules. Instead, IDEM established the Daily Limit based upon an incorrect legal interpretation of the applicable rule. Since IDEM failed to consider all of the relevant facts and information required to be considered by the rules, it did not give the adequate and full consideration to Carmel's Comments as required by 327 I.A.C. 5-3-9.

 

5. Furthermore, Brad Gavin's testimony concerning the intent of 327 I.A.C. 2-1-6(d), assuming it was ambiguous, would not be competent on the issue of intent. See Boffo v. Boone County Board of Zoning Appeals, 421 N.E.2d 1119, 1128 (Ind.Ct.App. 1981) (testimony of two board members is not credible evidence on the intentions of all board members). 327 I.A.C. 2-1-6(d) is not ambiguous on its face and a plain reading of the rule is not consistent with the interpretative testimony offered by IDEM.

 

6. Inclusion of the Daily Limit as a condition of Carmel's Permit without specifically considering the water quality of the receiving stream as required by 327 I.A.C. 5-2-11.1 violates the clear directive of the Rule. If there are no practical or technically feasible means of considering the water quality of the receiving stream and its impact on the determination of the appropriate Daily Limit, such facts must be clearly explained and justified. The agency must independently, by scientific analysis, justify a Daily Limit that it determines is appropriate in order to satisfy applicable statutory mandates, regulatory duties and programmatic objectives; or alternatively it must secure specific statutory authorization to include such alternate effluent limits.

 

7. The financial hardship argument raised by Carmel goes only to the reasonableness of the schedule of implementation and compliance under the Permit. Sufficient time has past since this dispute arose that Carmel could reasonably have been expected to fiscally budget and financially prepare for the anticipated expenditure necessary to comply with the E. coli limits if found appropriate. See generally, City of Gary v Stream Pollution Control Board of the State of Indiana, 422 N.E. 2nd 312, (Ind. Ct. App. 1981).

[1999 OEA 13, page 17 begins]

ORDER

 

The CALJ, having reviewed the evidence and being duly advised in the premises, hereby FINDS that 327 I.A.C. 5-2-11.1 requires the use and consideration of the water quality of the receiving stream before translating the water quality standard for E. coli into a specific effluent limit. The CALJ therefore ORDERS that the Permit be REMANDED so that IDEM may satisfy its nondiscretionary duty to consider and apply this regulatory provision to Carmel's Permit. If upon proper consideration of the receiving stream's water quality, IDEM determines that the objected to maximum daily effluent limit for E. coli bacteria of 235 count per 100 milliliter is appropriate, then Carmel shall comply with that permit provision within ninety (90) days of notice of such determination.

 

You are further notified that pursuant to provisions of Indiana Code 4-21.5-7-5, the Office of Environmental Adjudication serves as the Ultimate Authority in 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 IC 4-21.5. Pursuant to IC 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely only if it is filed with a civil court of competent jurisdiction within thirty (30) days after the date this notice is served.

 

Wayne E. Penrod, Chief

Chief Administrative Law Judge

 

[1999 OEA 13: end of decision]