967 N.E.2d 1053
Ind. Ct. App.2012Background
- Gary and Gary Sanitation appeal IDEM's Hobart wastewater permit decision after ALJ and Marion Superior Court upheld IDEM.
- Hobart sought to construct a 4.8 million gallon per day plant to shut down Nob Hill facility and disconnect from Gary's system, with lower mercury limits than Gary's facility.
- IDEM issued a NPDES-like permit with mercury limits of 3.2 ppt daily max and 1.3 ppt monthly avg; Deep River designated as an OSRW and has mercury impairment.
- Gary argues IDEM misinterpreted 327 IAC 5-2-11.7(a)(2) antidegradation, and that Hobart's permit would cause significant lowering of water quality.
- The trial court affirmed the ALJ and IDEM's decision; Gary appeals arguing for stricter interpretation; court holds IDEM reasonably interpreted the rule and affirms the Hobart Permit.
- Hobart's permit would divert Hobart's sewage from Gary's system, reducing combined sewer overflows and improving overall water quality for Lake Michigan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of 327 IAC 5-2-11.7(a)(2) | Gary contends A, B, and C must be read conjunctively. | IDEM reads A and B together; C is independent and not exclusive. | IDEM's interpretation reasonable; A and B control; C not exclusive pathway. |
| Whether Hobart Permit violates antidegradation or lowers water quality | Gary says new mercury discharge will significantly lower water quality. | Permit end-of-pipe limits and net environmental benefit justify no significant lowering. | IDEM's decision not arbitrary; end-of-pipe limits with net environmental benefit satisfy antidegradation rules. |
Key Cases Cited
- Dev. Servs. Alts., Inc. v. Ind. Family & Social Servs. Admin., 915 N.E.2d 169 (Ind.Ct.App. 2009) (agency interpretation given deference if reasonable)
- LTV Steel Co. v. Griffin, 730 N.E.2d 1251 (Ind. 2000) (defer to agency on factual issues; not on conclusions of law)
- Pierce v. Ind. Dep't of Correction, 885 N.E.2d 77 (Ind.Ct.App. 2008) (agency interpretations of statutes with reasonable basis favored)
- Soames v. Ind. Dep't of Natural Res., 934 N.E.2d 1154 (Ind.Ct.App. 2010) (deference to agency findings of fact; not to conclusions of law)
- Twin Eagle, LLC v. Ind. Dep't of Envtl. Mgmt., 798 N.E.2d 839 (Ind.2003) (antidegradation and permit proceedings under IDEM rules)