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Objection to Denial of Excess Liability Trust Fund Claim No.1999104=
505 / FID 5123,
Edgewood Service Center, Inc.,
HydroTech Corporation
2009 OEA 38, (07-F-J-4019)
[2009 OEA 3= 8, page 38 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 38, cite this case as
&nbs= p; Edgewood Service Center, Inc., 2009 OEA 38.
Topics: &=
nbsp;
underground storage tanks
UST’s
asphalt
resurfacing
excavation
reimbursement
costs
corrective action
Presiding Environmental Law Judge= :
Catherine Gibbs
Party representatives:
IDEM:
Petitioner:  = ; Donn Wray, Esq., Nicholas Gahl, Esq.; = Stewart & Irwin
Order issued:
June 4, 2009
Index category:
Land
Further case activity:
Motion to Reconsider denied June 16, 2009
[2009 OEA 3= 8, page 39 begins]
STATE OF
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: = ; &n= bsp;  = ; &n= bsp; )
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
OBJECTION TO THE DENIAL OF EXCESS )
LIABILITY TRUST FUND CLAIM  = ; &n= bsp; ) &= nbsp;
ELTF # 199104505 / FID # 5123 = &nb= sp; )
EDGEWOOD SERVICE CENTER, INC. = ) &= nbsp; CAUSE NO. 07-F-J-4019
HYDROTECH CORPORATION&= nbsp; &nbs= p; &= nbsp; )
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND FINAL ORDER
This matter having come before the Court for the fi=
nal
hearing, held on May 29, 2009, on the Petition for Review filed by the
Petitioner, HydroTech Environmental Consulting and Engineering; and the
Environmental Law Judge, being duly advised and having read the record,
pleadings, and having heard and considered the evidence presented at the
hearing, now finds that judgment may be made upon the record and makes the
following findings of fact and conclusions of law and enters the following
Final Order:
Findings of Fact
=
1. Mr. Marty Hall owns a property located =
at
=
2. On or about August 25, 2003, HydroTech
submitted a Corrective Action Plan (CAP) to the Indiana Department of Envir=
onmental
Management (the IDEM). The CAP
included a proposal to excavate approximately 5,300 square feet of soil from
the Site. Exhibit 11, Remedial Work Plan, August 22, 2003, page 37.
3. The CAP was approved on September 23,
2003. Thereafter, HydroTech
implemented the CAP and submitted a CAP Implementation/Soil Excavation Repo=
rt
to the IDEM on May 24, 2006.
HydroTech reported that approximately 5,800 square feet were excavat=
ed
from the Site. Exhibit 9, CAP Implementation/Soil
Excavation Report, May 24, 2006, page 7.
[2009 OEA 3= 8, page 40 begins]
4. On or about August 7, 2007, HydroTech f=
iled a
claim for reimbursement from the Excess Liability Trust Fund (the ELTF) wit=
h the
IDEM. The claim requested
reimbursement of the costs associated with the corrective action, including=
the
costs for resurfacing certain portions of the Site, beyond the specified
excavation area.[1]
5. On November 16, 2007, the IDEM issued i=
ts
decision regarding the claim. The
IDEM allowed reimbursement for the costs of paving the 5800 square feet
directly associated with the excavation approved in the CAP (the
“Approved Area”) and denied reimbursement of the remainder of t=
he
costs associated with paving the rest of the parking lot (the “Disput=
ed
Area”). The IDEM denied
reimbursement of $15,433.00 for the reason that “Charge exceeds
reasonable cost guidelines as noted in 328 IAC 1-3-5 for asphalt resurfacing
($2.15 per square foot). The =
ELTF
does not reimburse charges for site improvements such as using concrete in =
lieu
of asphalt. Per the IDEM tech=
nical
project manager, the approved excavation area was 5,800 square feet. The resurfacing of only 5,800 squa=
re
feet has been reimbursed. All=
other
costs are denied.”
6. HydroTech filed its Petition for Review=
on
November 27, 2007.
7. The Statement of Joint Stipulations for=
May
29, 2009 Hearing is incorporated herein.&n=
bsp;
The parties stipulated that the only costs in dispute were the allow=
able
costs[2]<=
![endif]>
of $2.15 per square foot for asphalt for the Disputed Area.
8. The excavation of the Approved Area req=
uired
the use of heavy excavating equipment with steel tracks to excavate the are=
a and
the use of tri-axle trucks to remove the excavated material. The pavement beyond the Approved A=
rea
was damaged by the exposure to the equipment and trucks. The Petitioner attempted to mitiga=
te
damage by limiting access to certain egress and ingress points at the Site.=
Further, standard engineering prac=
tice required
that a larger area than the Approved Area be excavated. These practices included cutting t=
he
pavement in straight lines, not arced, and that excavation should occur on
existing joints to minimize potential damage, etc. Subsidence around the excavated ar=
ea
also necessitated resurfacing.
Conclusions of Law
<= span style=3D'mso-list:Ignore'>1.&n= bsp; The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner= of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.
2.= Findings of fact that may be construed as conclusions of law and conclusions of law = that may be construed as findings of fact are so deemed.
[2009 OEA 3= 8, page 41 begins]
<=
span
style=3D'mso-list:Ignore'>3.&n=
bsp;
This office must apply a de novo standard of
review to this proceeding when determining the facts at issue.
all issues = are to be determined anew, based solely upon the evidence adduced at that hearing = and independent of any previous findings.
Grisell v. Indianapolis
<= span style=3D'mso-list:Ignore'>4.&n= bsp; The Petitioner has the burden to produce substantial and reliable evidence to prove that the IDEM has erred in denying its claim= for reimbursement from the ELTF.
<= span style=3D'mso-list:Ignore'>5.&n= bsp; The applicable rules are contained in 328 IAC 1-3-5= and the pertinent portions state:
(= a) Reimbursable costs, excluding third party liability claims, are actual monetary amounts = paid or incurred for work performed:
(1)&= nbsp; consistent with an approved or deemed approved CAP = or under one (1) or more of the provisions of I.C. § 13-23-8-4(b);
(d)&= nbsp; The following costs are not reimbursable from the f= und:
(7)&= nbsp; The cost of cosmetic improvements, including the re= pair or replacement of blacktop or concrete, unless directly associated with corrective action. . .
(15)= Any other cost not directly related to site characterization, corrective action, = or third party liability or otherwise determined not to be reimbursable under = this rule as a result of a financial or technical review.
6.&n= bsp; The Petitioner has presented substantial and reliab= le evidence that the pavement in the Disputed Area at the Site was damaged as a result of the corrective action activities. The damage was more than cosmetic;= the resurfacing was necessary. = p>
7.&n= bsp; No IDEM personnel observed the damage and so, the I= DEM was not able to contradict the evidence presented by the Petitioner that the da= mage was more than cosmetic.
8.&n= bsp; 328 IAC 1-3-5(d)(7) is applicable to the fact situation. As the damage was = not cosmetic and was the result of the corrective action, the costs for resurfa= cing the Disputed Area were improperly denied.&= nbsp;
9.&n= bsp; However, the Petitioner failed to present sufficient evidence regarding the miscellaneous costs requested. The only evidence was that these c= osts included costs associated with cutting the asphalt, but the costs were not = broken down into unit price, nor was there evidence as to what other costs, if any= , were included in the miscellaneous costs. Reimbursement of the miscellaneous costs of $3,541.93 is denied.
[2009 OEA 3= 8, page 42 begins]
10.&= nbsp; The Petitioner requested reimbursement for 10,423 square feet. IDEM reimbursed for 5800 square fe= et (the Approved Area). The diff= erence was 4,623 square feet (the Disputed Area).= The approved cost per square foot of asphalt[3] is $2.15. Therefore, $2.15 x 4,6= 23 square feet =3D $9,938.45. Th= e rules allow for 10% markup[4] ($993.94) bringing the total reimbursement to $10,933.39.
Final Order
AND THE COURT, being duly advised, ORDERS, ADJUDGES AND DECREES that the Petitioner h= as presented sufficient evidence in support of its Petition for Review. The IDEM erred in denying reimburs= ement and is ORDERED to pay the Petitioner $10,933.39 no later than thirty (30) days after the effective date of this Order.
You are hereby further = notified that pursuant to provisions of I.C. § 4-21.5-7.5, the Office of Environmental Adjudication serves as the Ultimate Authority in the administ= rative review of decisions of the Commissioner of the Indiana Department of Environmental Management. Thi= s is a Final Order subject to Judicial Review consistent with applicable provision= s of I.C. § 4-21.5. Pursuant to I.C. § 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely only if it is filed with a civil court= of competent jurisdiction within thirty (30) days after the date this notice is served.
IT IS SO ORDERED this 4th day of June, 2009 in
Hon. Catherine Gibbs= p>
Environmental Law Judg= e
[2009 OEA 38: end of decision]
2009 OEA 38 in .doc format
20=
09
OEA 38 in .pdf format
[1] The resurfacing was done in concrete although the Site was originally paved with asphalt.
[2] Allowable costs per unit are specified in 328 IAC 1-3-5(e).
[3] The parties stipulated to the application of the asphalt unit price rather = than the cost applicable for concrete.
[4] Neither of the parties argues that markup does not apply.
&=
nbsp; Objection to Denial of Excess Liabili=
ty
Trust Fund Claim No.1999104505 / =
FID 5123,
Edgewood Service Center, Inc., HydroTech Corporation
2009 OEA 38 (07-F-J-4019)
|
|
&=
nbsp; Objection to Denial of Excess Liabili=
ty
Trust Fund Claim No.1999104505 / =
FID 5123,
Edgewood Service Center, Inc., HydroTech Corporation
2009 OEA 38, (07-F-J-4019)