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Monday, November 15, 2004
Indiana Decisions - OEA dismisses challenge to Blue Chip Casino water permits
Blue Chip Casino v. Nauyokas (11/12/04 OEA)
Davidsen, Chief ELJ
[The ELJ] finds that the Petition for Administrative Review and Petition for Stay of Effectiveness is dismissed involuntarily, per Ind. Trial Rule 41(B) and Ind. Code § 4-21.5-3-7 for lack of standing to seek administrative review of the permits in issue. Judgment may be made upon the record. The ELJ, by a preponderance of the evidence, now makes the following findings of fact and conclusions of law, and enters the following Order with respect to the Petition of Robert and Michele Nauyokas. * * *Access the ILB entry on the 6/30/04 ruling in Rosemary Adams Huffman v. Indiana Department of Environmental Management, et al. here (4th case).16. This Court concludes that Huffman [v. IDEM] provides legal precedent applicable to these Petitions; a similar standard was applied by this Court in In re: Objection to the Issuance of the Modification to Permit FP # 82-02 Laubscher Meadows Landfill, Vanderburgh County, Indiana, Cause No. 96-S-J-1677 (Sept. 26, 1998)(allegations that organization had members in immediate vicinity of facility who believe that the approval and implementation of the permit may cause serious injury to their health, environment and value of property insufficient to support aggrieved and adversely affected claim). Even if this Court were to adopt the rationale used by the New Jersey District Court in 1991, Petitioners did not present substantial evidence to demonstrate that they suffered, or were likely to suffer, injuries through waters directly affected by discharges, and did not establish evidence of illegal discharges, as found sufficient in Public Interest Research Group of New Jersey, Inc. v. GAF Corporation, 770 F.Supp. 943, 952 (D.N.J. 1991). Petitioners did not present substantial evidence to demonstrate that they or The Cool Pepper were harmed by continuous and illegal pollutant discharges, had more than a remote and speculative recreational interest in the affected waters, nor that a “standing” analysis rejected in Huffman should be applied as was analyzed in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 184-185 (2000), in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000), in Sierra Club v. Simkins Industries, Inc., 617 F.Supp. 1120 (D. Md. 1985), or in Matter of Recovery I, Inc., 635 So.2d 690 (La.Ct.App. 1994). 17. For lack of substantive evidence probative that Petitioners are aggrieved or adversely affected by IDEM’s issuance of Section 401 Water Quality Certification No. 2003-433-46-MTM-A, and NPDES Permit No. IN 0062073, Petitioners’ Petitions for Administrative Review and Petitions for Stay of Effectiveness should be dismissed.
Posted by Marcia Oddi on November 15, 2004 05:11 PM
Posted to Indiana Decisions