Court affirms permit to build new wastewater treatment plant

The Indiana Department of Environmental Management’s decision to issue a permit to the city of Hobart to operate a new wastewater treatment plant was not arbitrary, capricious or otherwise contrary to law, the Indiana Court of Appeals ruled.

In City of Gary and Gary Sanitation District v. Indiana Department of Environmental Management and City of Hobart, No. 49A02-1106-MI-553, the city of Gary, which has an agreement with Hobart to treat some of its wastewater, challenged the decision to allow Hobart to build a new treatment plant. The new plant would shut down an aging facility in Hobart and discontinue the need for Gary to handle the wastewater. In 2004, IDEM issued the permit allowing the construction of the plant along the Deep River, a tributary to Lake Michigan. The permit set mercury limits of 3.2 parts per trillion and a monthly average of 1.9 ppt per day, which are less than the limits currently allowed at the Gary facility.

Gary asked for administrative review of the permit, which the Indiana Office of Environmental Adjudication, and later the trial court, upheld.

At issue is the interpretation of 327 Indiana Administrative Code 5-2-11.7(a)(2). Gary read the code to mean that subsections (a),(b) and (c) must be read together; but IDEM, the OEA, and the trial court found that only (a) and (b) should be read together and (c) provides a separate way to meet regulation requirements. When IDEM issued the permit, it only applied subsections (a) and (b). The appellate court found IDEM’s interpretation is consistent with the plain language of the regulation, as clauses (a) and (b) are connected by “and;” there is no conjunctive language connecting those clauses with (c).

In addition, the antidegradation factors cited in (c) don’t apply to Hobart’s permit mercury discharges, noted Judge Paul Mathias. The judges also rejected Gary’s argument that issuing the permit will cause significant lowering of water quality in violation of 327 Ind. Admin. Code 5-2-11.3(a) and 5-2-11.7(a)(2).

“We conclude that IDEM’s decision to issue the Hobart Permit was neither arbitrary nor capricious, and that the decision was in accordance with the law and supported by substantial evidence,” Mathias wrote. “And, although the Hobart Permit allows a new source for discharge of mercury, because Hobart will be able to close its non-compliant Nob Hill Plant and treat its wastewater more effectively than it is currently treated by Gary’s facility, the Hobart Permit will result in an overall environmental benefit to and will not cause a significant lowering of water quality in Lake Michigan and its tributary, the Deep River.”