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Commissioner, Indiana Department of Environmental Management v.
Rajbir Singh d/b/a RK Petroleum, LLC,
2009 OEA 62, (09-S-E-4224)
[2009 OEA 6= 2, page 62 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 62, cite this case as
&nbs= p; IDEM v. Singh, 2009 OEA 62.
Topics:
Initial Site Characterization Plan
Further Site Investigation Plan
underground storage tank
Notice of Violation
329 IAC 9-5-5.1(a)
site
investigation
Corrective Action Plan
civil penalty
Presiding Environmental Law Judge= :
Mary L. Davidsen
Party representatives:
IDEM:
Petitioner:  = ; Thomas W. Baker, Esq.; Hatchett & Hauck LLP
Order issued:
June 26, 2009
Index category:
Land
Further case activity:
[none]
[2009 OEA 6= 2, page 63 begins]
STATE OF
 = ; &n= bsp;  = ; &n= bsp; ) &= nbsp; ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
= = &nb= sp; = &nb= sp; = &nb= sp; )
COMMISSIONER, INDIANA DEPART= MENT OF )
ENVIRONMENTAL MANAGEMENT,
Complainan= t, &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
 = ; &n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; )
v. &= nbsp; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; CAUSE NO. 09-S-E-4224
= = &nb= sp; = &nb= sp; = &nb= sp; )
RAJBIR SINGH d/b/a RK PETROL= EUM, LLC, &nb= sp; = )
IDEM Case No. 2006-16106-S &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; )
Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
= &nb= sp; = &= nbsp;
FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER
This matter came before t= he Office of Environmental Adjudication (“OEA” or “CourtR= 21;) on Complainant, Indiana Department of Environmental Management’s Febr= uary 2, 2009 Motion to Dismiss (“Motion”). The parties fully briefed their positions and did not request oral argument. The Chief Environmental Law Ju= dge (“ELJ”) having considered the petitions, evidence, and pleading= s of the parties, now finds that judgment may be made upon the record. The ELJ, by substantial evidence, = and being duly advised, now makes the following findings of fact and conclusion= s of law and enters the following Final Order:
FINDI= NGS OF FACT
1=
. Rajbir
Singh d/b/a RK Petroleum, LLC (“RK”) owns and/or operates
underground storage tank (“UST”) systems, UST Facility ID No. 2=
710,
at
2=
. Records
of the Indiana Secretary of State’s office state that since April 11,
2001, RK Petroleum LLC’s Registered Agent is Rajbir Singh,
3=
. On
June 19, 2007, IDEM issued a Notice of Violation (“NOV”) to RK =
for
failure to submit initial response information to IDEM per 329 IAC 9-5-5.1(=
a),
relative to a May 26, 2005 release at the Site, which release was assigned
Incident # 200505515. IDEM se=
nt the
NOV by certified mail to Rajbir Singh, d/b/a RK Petroleum, LLC at 1526 Juds=
on
Avenue, Evansville, Indiana, (“Evansville address”) and at 2901
East 38th Street, Indianapolis, IN (“Indianapolis
address”). Respondent IDEM’s Motion to Dism=
iss,
NOV (“Motion”), Ex. A.&nbs=
p;
The NOV includes the two certified mail article numbers for each of =
the
RK NOV mailings.
[2009 OEA 6= 2, page 64 begins]
address, was signed as rece= ived on June 23, 2007; the signature is not legible to the Court. Motion, Ex. B.
4=
. On
November 19, 2007, IDEM sent RK a written offer to enter into an Agreed Ord=
er,
per I.C. § 13-30-3-3. Motion, Ex. C. As in the case of the NOV, the Agr=
eed
Order was sent to RK’s same two addresses via certified mail, with th=
e certified
mail article numbers contained in the Agreed Order.
5=
. The
parties did not enter into an Agreed Order. On July 24, 2008, the Indiana Depa=
rtment
of Environmental Management (“IDEM”) issued a Commissioner̵=
7;s
Order (“CO”) to Motion,=
Ex. E.
As in the cases of the NOV and =
Agreed
Order, the CO was sent to RK’s same two addresses via certified mail,
with the certified mail article numbers contained in the Agreed Order.
6.&n= bsp; The CO informed RK that if RK did not file its objections via petition for administrative review with OEA within nineteen = (19) days[1] from RK’s receipt of the Notice and Order, then the Notice and Order would become effective and enforceable.&nb= sp; The CO required RK to do specified tasks, including:
(= a) immediately cease and desist violation of 329 IAC 9-5-5.1(a);
(= b) within sixty (60) days of the effective date of the CO, submit an Initial Site Characteristic Plan (“ISCP”) to IDEM, setting forth in detail t= he actions RK would take to complete and submit to IDEM an Initial Site Characterization (“ISC”) for IDEM’s approval;
(= c) within thirty (30) days of IDEM’s approval of the ISCP, implement the ISCP in accordance with the ISCP’s schedule and submit the results of the ISC= to IDEM:
(= d) within sixty (60) days of receiving written notice from IDEM, submit a Further Site Investigation Plan (“FSIP”) to IDEM, setting forth in detail the actions RK would take to complete and submit to IDEM a Further Site Investigation (“FSI”) for IDEM’s approval;
(= e) upon IDEM’s approval of the FSIP, implement the FSIP in accordance with the FSIP’s schedule and submit the results of the FSI to IDEM;
(= f) within sixty (60) days of receiving written notice from IDEM, submit a Corrective Action Plan (“CAP”) to IDEM, setting forth in detail the action= s RK would take to implement corrective action at the site for IDEM’s approval;
[2009 OEA 6= 2, page 65 begins]
(= g) upon IDEM’s approval of the CAP, implement the CAP in accordance with the CAP’s schedule and apply to IDEM for any necessary permits or approva= ls prior to implementing corrective actions; and
(= h) pay a civil penalty of Seven Thousand Dollars ($7,000.00) for violation of the = applicable requirements within thirty (30) days of the effective date of the CO.
Motion, Ex. E., p. 2 -4.
7=
. On
October 3, 2008, IDEM sent RK a letter notifying RK that IDEM had not recei=
ved a
request for administrative review and, therefore, IDEM considered the CO
effective as of August 14, 2008. Motion, Ex. G. The October 3, 2008 letter was sen=
t to
RK’s
8=
. Based
on its determination that RK did not comply with the CO, IDEM filed a
“Verified Petition for Civil Enforcement (“Petition”) and
Summons, in Vanderburgh Superior Court 3 on January 6, 2009. Motion,
Ex. I. (Commissioner, Indiana
Department of Environmental Management v. Rajbir Singh d/b/a RK Petroleum, =
LLC,
Cause No. 82D03-0901-PL-158). Per
the Vanderburgh Superior Court’s docket, RK received a copy of the
Petition and Summons on January 14, 2009.&=
nbsp;
Motion, Ex. J. The Summons was sent via certified=
mail
to RK’s
9= . RK, by counsel, filed its Petition for Administrative Review and Request for Hearing (“Petition for Administrative Review”) on January 23, 2009. In its Petition for Administrative Review of the CO, RK states “[t]he person filing this Petition is Rajbir Singh, 2824 Sugarmill Drive, Evansville, Indiana . . . Rajbir Singh is the party to whom the [CO] was directed. Rajbir Singh represents no other e= ntity.”
1= 0. RK do= es not dispute that the addresses used for RK by IDEM were incorrect, but does dis= pute that the only document it received was the CO, on January 15, 2009. “Rajbir Singh became aware of this [CO] upon receipt of a facsimile containing two pages of this [CO] on January 15, 2009. Petition for Administrative Review, p. 2, para. 6. Neither party presented evidence a= s to the disposition of the NOV, Agreed Order and CO IDEM transmitted by certifi= ed mail, or the relationship, if any, among RK and those accepting receipt.
1= 1. In comparing the cause before this forum and the case before the Vanderburgh Superior Court, the parties to the two matters are identical. The subject matter of the two matt= ers is similar. Similar relief is so= ught by the parties from the two forums.
[2009 OEA 6= 2, page 66 begins]
1=
2. On Ju=
ly 16,
2008, RK’s counsel, by email, requested that IDEM’s provide
RK’s counsel “a copy of any order directed to [RK].” Respondent’s
February 23, 2009 Response to Complaintant’s Motion to Dismiss, Ex. 2=
.
IDEM’s counsel replied that she would “let enforcement know that
you’d like to receive a copy”; IDEM did not provide a copy of t=
he
CO directly to RK’s counsel. <=
/span>
CONCL= USIONS OF LAW
1.&n=
bsp;
The Indiana Department of Environmental Management =
(“IDEM”)
is authorized to implement and enforce specified
2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be c= onstrued as Findings of Fact are so deemed.
3.&n=
bsp;
By this Final Order, OEA takes official notice of t=
he
Vanderburgh Superior Court and Indiana Secretary of State documents present=
ed
by Complainant IDEM. I.C. § 4-21.5-3-26(f); Roeschlin v. Thomas, =
i>280
N.E.2d 581, 584 (
4.&n=
bsp;
In this case, Claimant IDEM challenges the legal
sufficiency of the claim, as a motion to dismiss. Per Trial Rule 12(B)(6), a motion =
to
dismiss tests the legal sufficiency of the claim, not the facts which suppo=
rt
it. Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d =
130,
134 (
5.&n=
bsp;
In determining the facts at issue, this Court must
apply a de novo standard of review to this proceeding.
[2009 OEA 6= 2, page 67 begins]
6.&n=
bsp;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d
806, 809 (Ind. 2004)(appeal of OEA review of NPDES permit); see also
I.C. § 4-21.5-3-27(d). W=
hile
the parties disputed IDEM’s determination that RK received the CO and=
did
not appeal it in a timely manner, OEA is authorized “to make a
determination from the affidavits . . . pleadings or evidence.” I.C. § 4-21.5-3-23(b). “Standard of proof generally=
has
been described as a continuum with levels ranging from a "preponderanc=
e of
the evidence test" to a "beyond a reasonable doubt" test. The
"clear and convincing evidence" test is the intermediate standard,
although many varying descriptions may be associated with the definition of
this intermediate test.” Matter
of
7.&n= bsp; The parties dispute whether Respondent’s Peti= tion for Administrative Review in this forum was timely filed. A person who is “aggrieved or adversely affected” by, and wants to challenge, an agency action or order, to seek administrative review by filing a written petition for administrative review in compliance with I.C. § 4-21.5-3-7(a). Petitions for review of IDEM agency actions are filed with OEA, I.C. § 4-21.5-7, et seq.
8.&n= bsp; I.C. § 13-30-3-5 provides that Commissioner’s Orders (“CO”) must be appealed to the Offi= ce of Environmental Adjudication within twenty (20) days of the CO’s receipt. If not timely appeal= ed, the CO takes effect.
9.&n= bsp; RK had twenty (20) days after it received notice of= the CO to file an administrative appeal with OEA.
10.&=
nbsp; RK
asserts that it received the CO when Rajbir Singh personally received the C=
O on
January 15, 2009. Response, p. 1. RK further asserts that prior mail=
ings
to RK’s addresses, via certified mail, signed by individuals other th=
an
Rajbir Singh, do not provide service to RK. Response,
p. 2. In support, RK relies on Indiana Dep’t of Highways v. Dix=
on,
541 N.E.2d 877, 880 (
[2009 OEA 6= 2, page 68 begins]
In Coulopoulos, IDEM sent its CO via =
certified
mail to an address where Constance Coulopoulos shared housing with her
sister.
11.&=
nbsp; Both
12.&=
nbsp; OEA
lacks subject matter jurisdiction over Respondent RK’s petition for
administrative review.
Substantial evidence shows that Respondent Rajbir Singh d/b/a RK
Petroleum, LLC received required notice on June 28, 2008, the date when the
certified article domestic return receipt, or “green card”, for
RK’s
13.&= nbsp; OEA does not have, and has no discretion to acquire, subject matter jurisdictio= n of a petition for administrative review filed after the deadlines mandated by statute. OEA must dismiss the Petition with prejudice. Walker Mfg. Co v. Dep’t of Local Gov’t Finance, 772 N.E.2d 1, 4-6 (Ind. Tax 2002); In re: Objection to the Issuance of Notice of Decision, Murphy Oil USA, Inc= ., Seymour, Jackson County, Indiana, 2004 OEA 51, 55; Variance for Open Burning, Herring, 2008 OEA 7; In re: Objection to Denial of Excess Liability Trust Fund Claim, Frank Suverkup, Benzol Cleaning Co., Inc., 2004 OEA 48. As a matter of law, OEA lacks subj= ect matter jurisdiction over this cause.
[2009 OEA 6= 2, page 69 begins]
IT IS THEREFORE ORDERED that the Petition for Administrative Re= view and Request for Hearing filed by Petitioner Rajbir Singh, d/b/a RK Petroleu= m, LLC is hereby DISMISSED, and the Indiana Department of Environmental Management’s February 2, 2009 Motion to Dismiss is hereby GRANTE= D.
You are further advised that, pursua= nt to I.C. § 4-21.5-5, et seq= ., this Final Order is subject to judicial review. Pursuant to I.C. § 4-21.5-5, a Petition for Judicial Review of this Final Order is timely only if it is fi= led with a civil court of competent jurisdiction within thirty (30) days after = the date this notice is served.
IT IS SO ORDERED th=
is
26th day of June, 2009 in
Hon. Mary L. Davidsen<= /p>
Chief Environmental Law Judge
[2009 OEA 62: end of decision]
2009 OEA 62 in .doc format
2009
OEA 62 in .pdf format
=
[1] I.C. § 13-30-3-5 requires twe=
nty
(20) days. Whether RK respond=
ed
within nineteen (19) days or twenty (20) days is not dispositive of this
cause.
Commissioner, Indiana Department of Environmental Management v.
Rajbir Singh d/b/a RK Petroleum, LLC,
2009 OEA 62, (09-S-E-4224)