ILNews

Court: EPA approval required for expansion

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
A Porter County sewer company must receive prior approval from the Environmental Protection Agency per a federal consent decree in order to be able to expand its services, the Indiana Court of Appeals has ruled.

The appeal from the Indiana Regulatory Commission, Application of South Haven Sewer Works, Inc., City of Portage v. South Haven Sewer Works, Inc., No. 93A02-0703-EX-204, came before the court because the City of Portage believed the Indiana Utility Regulatory Commission's grant of a certificate of territorial authority to South Haven was an error as a matter of law.

South Haven owns and operates a wastewater collection and treatment system in Porter County. It wanted to expand into a territory that ran west from Bay Road, which is the boundary of its existing CTA, a mile-and-a-half to Willowcreek Road, and in the north from County Road 700 North, south to State Road 130. The company filed a verified petition with the Indiana Utility Regulatory Commission, in which the commission issued a final order concluding South Haven met all statutory and regulatory requirements.

The city appealed, arguing an agreement between South Haven and the EPA required South Haven to have EPA approval before expanding its sewer territory. South Haven and EPA entered into a consent decree to settle a lawsuit filed by the EPA, in which the agency sought injunctive relief and civil penalties as a result of the company's violations of various environmental regulations.

Section V(8)(a) of the decree stated, "... South Haven shall not expand its sewer connections or service area unless, for each proposed expansion, it demonstrates to the EPA that ...." It also defined service area as "all areas in which South Haven is authorized to collect and convey sewage."

Portage argues these sections are unambiguous and mandates South Haven has EPA approval prior to expanding its service territory.

The commission found the provisions in the consent decree to be ambiguous and granted South Haven the power to expand. However, the Court of Appeals found the consent decree's language to be unambiguous, wrote Judge Patricia Riley.

"By defining service area as the area South Haven was providing sewer service to at the time of executing the consent decree, any future 'proposed expansion' of the service area requires EPA's approval pursuant to Section V(8)(a)," she wrote. "Accordingly, as South Haven proposed to expand its original CTA by filing a petition with the Commission, it should have requested EPA's prior approval."

South Haven and the commission argued requiring prior EPA approval for South Haven expansion means the EPA will have power over state matters. However, South Haven voluntarily entered into the consent decree with the EPA. Even after receiving EPA approval, it is still up to the commission to determine whether to grant South Haven's request for expansion, wrote Judge Riley. Therefore, the commission erred as a matter of law when it determined South Haven had lawful authority to expand its geographic service territory.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT