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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT