ILNews

Court: EPA approval required for expansion

Jennifer Nelson
January 1, 2008
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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.
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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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