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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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