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Objection to the Denial of Excess Liability Trust Fund Claim,
ELTF #200609504 / FID #15307, Former Smith Food Shop
2009 OEA 143, (09-F-J-4201)
[2009 OEA 1= 43, page 143 begins]
OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 143 cite this case as
&nbs=
p; Former
Smith Food Shop, 2009 OEA 143.
Topics:
Excess Liability Trust Fund Claim
summary judgment
underground storage tanks
release
report
spill rule
closure report
substantial compliance
discovery
day
Presiding Environmental Law Judge= :
Catherine Gibbs
Party representatives:
IDEM:  = ; Julie Lang, Esq.
Petitioner:  = ; Ginny Peterson, Esq.; Kightlinger & Gray LLP
Order issued:
November 13, 2009
Index category:
Land
Further case activity:
[none]
[2009 OEA 1= 43, page 144 begins]
STATE OF
&n= bsp;  = ; &n= bsp;  = ; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
COUNTY OF
IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
&n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; )
OBJECTION TO THE DENIAL O= F EXCESS &= nbsp; )
LIABILITY TRUST FUND CLAI= M &= nbsp; &nbs= p; ) &= nbsp;
ELTF #200609504 / FID #15= 307 &= nbsp; &nbs= p; ) &= nbsp; CAUSE NO. 08-F-J-4201
FORMER SMITH FOOD SHOP
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND FINAL ORDER
This matter having come b= efore the Court on the Indiana Department of Environmental Management’s Mot= ion for Summary Judgment and Petitioner, Jacqueline Smith as Owner of Former Sm= ith Food Shop’s Motion for Summary Judgment, which pleadings are parts of= the Court’s record; and the presiding Environmental Law Judge (the ELJ), being duly advised and having read the pleadings, motions, responses, repli= es and evidence, now enters the following findings of fact, conclusions of law= and final order:
Findings of Fact
1.&n= bsp; Jacqueline Smith (the Petitioner) is the owner and operator of underground storage tanks located at Smith’s Food and Ser= vice Plaza, a/k/a Former Smith Food Shop, 3324 Spring Street, Fort Wayne, Indiana (the Site).
2.&n= bsp; On November 11, 2008, the Indiana Department of Environmental Management (the IDEM) issued a notification to the Petitioner denying her request for reimbursement from the Excess Liability Trust Fund = (the ELTF).
3.&n= bsp; The reason for the denial was that the Petitioner w= as not in substantial compliance with the regulations requiring that releases = from underground storage tanks (USTs) be reported to the IDEM. The notification stated, “Th= ough evidence of contamination was found earlier (samples from October 19, 2005), the release was not reported to IDEM until September 8, 2006.”
4.&n= bsp; Petitioner filed her petition for review of this no= tice on November 24, 2008.
5.&n= bsp; The IDEM and Petitioner both filed motions for summ= ary judgment on August 17, 2009.
6.&n= bsp; There were two (2) USTs at the Site. The USTs were removed on October 1= 8 and 19, 2005.
[2009 OEA 1= 43, page 145 begins]
7.&n=
bsp;
Sampling conducted as part of the UST closure indic=
ated
that there had been a release from the UST system[1] at
the Site. BTEX[2]
was detected in ground water above the reporting limit in the tank area. 8.&n=
bsp;
The Closure Report was signed by the Petitioner on
November 22, 2005. 9.&n=
bsp;
The cover letter from Petitioner’s consultant=
to
the IDEM, attached to the Closure Report, is dated December 1, 2005. The Closure Report was received by=
the
IDEM on December 14, 2005. 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 Indiana Department of Environmental Management (“IDEM”) and=
the
parties to this controversy pursuant to I.C. § 4-21.5-7, et seq. <=
span
style=3D'mso-list:Ignore'>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
construed as Findings of Fact are so deemed. <=
span
style=3D'mso-list:Ignore'>3.&n=
bsp;
This Court must apply a de novo standard of =
review
to this proceeding when determining the facts at issue. Indiana Dept. of Natural Resour=
ces v.
United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993), Indiana-Kentucky
Electric Corporation v. Commissioner, Indiana Department of Environmental
Management, 820
N.E.2d 771 (Ind. Ct. App. 2005).
Findings of fact must be based exclusively on the evidence presented=
to
the ELJ, I.C. § 4-21.5-3-27(d).
Deference to the agency’s initial determination is not
allowed. all issues =
are to
be determined anew, based solely upon the evidence adduced at that hearing =
and
independent of any previous findings. Grisell v. =
[2009 OEA 1=
43, page
146 begins] 4. The
OEA may enter judgment for a party if it finds that “the pleadings,
depositions, answers to interrogatories, and admissions on file, together w=
ith
the affidavits and testimony, if any, show that a genuine issue as to any
material fact does not exist and that the moving party is entitled to judgm=
ent
as a matter of law.” I.=
C. §
4-21.5-3-23. The moving party=
bears
the burden of establishing that summary judgment is appropriate. All facts and inferences must be
construed in favor of the non-movant.
Gibson v. 5. “The
fact that both parties requested summary judgment does not alter our standa=
rd
of review. Instead, we must separately consider each motion to determine
whether there is a genuine issue of material fact and whether the moving pa=
rty
is entitled to judgment as a matter of law.” Laudig v. 6. “The
cardinal rule of statutory construction is to ascertain the intent of the
legislature by giving effect to the ordinary and plain meaning of the langu=
age
used.” Bourbon Mini-=
Mart,
Inc. v. Commissioner, Indiana Department of Environmental Management 7. An owner or operator who w=
ishes
to receive reimbursement from the ELTF must be in substantial compliance wi=
th
“this article” (I.C. § 13-23-8-4(a)(1)(A)) and “rules adopted u=
nder
this article” (I.C. § 13-23-8-4(a)(1)(B)). The reference to “this
article” clearly means Chapter 13, Article 23 of the Indiana Code. 8. 329
IAC 9 was promulgated by the Solid Waste Management Board under the authori=
ty
of Chapter 13, Article 23 of the Indiana Code. All owners and operators of USTs m=
ust
comply with the requirements promulgated in 329 IAC 9 (329 IAC 9-1-1(a)),
regardless of whether they are eligible for reimbursement from the ELTF. [2009 OEA 1=
43, page
147 begins] <=
span
style=3D'mso-list:Ignore'>9.&n=
bsp;
328 IAC 1-1-9[4],
in effect in during the time in question in this case, defines
“substantial compliance” as follows: <=
span
style=3D'mso-list:Ignore'>(a)&=
nbsp;
"Substantial compliance" means
that, at the time a release was first discovered or confirmed: <=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp;
the owner or operator has met the
requirements of I.C. § 13-23-8-4(a), with the exception of mi=
nor
violations of: <=
span
style=3D'mso-list:Ignore'>(A)&=
nbsp; statutory
deadlines; <=
span
style=3D'mso-list:Ignore'>(B)&=
nbsp;
&=
nbsp; regulatory
deadlines; or <=
span
style=3D'mso-list:Ignore'>(C)&=
nbsp; regulatory =
requirements;
that do not cause harm or threaten to harm human health or the environment;=
and <=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp;
registration fees have been paid as
required under I.C. § 13-23-12 and 328 IAC 1-3-3. <=
span
style=3D'mso-list:Ignore'>(b)&=
nbsp;
An owner or operator is not in substant=
ial
compliance if the release: <=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp;
Has not been reported within seven (7) days =
of
the date the release was required to be reported under the spill reporting =
rule
in effect at the time of the release. <=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp;
Harms public health or the environment and w=
as
not timely reported under the spill reporting rule applicable at the time of
the release. 10. In or=
der to
be eligible for ELTF reimbursement, an owner or operator of a UST must be in
substantial compliance with the rules.&nbs=
p;
The Underground Storage Tank Financial Assurance Board has defined
“substantial compliance” with regard to the reporting requireme=
nts
contained in 329 IAC 9. In or=
der to
be in substantial compliance with the reporting requirements, an owner or
operator must report the release within seven (7) days. 11. It is=
clear
from the rule that the critical fact in determining whether the owner or
operator had substantially complied with release reporting is when the repo=
rt
was made. Whether the violati=
on was
minor or did not cause harm to human health or the environment is applicabl=
e in
determining whether the owner or operator was in substantial compliance with
rules other than those mandating sp=
ill
reporting. The
Petitioner’s argument that the rule is too vague is unpersuasive. 12. All o=
f the
rules governing reporting require that the owner or operator report a relea=
se
within 24 hours of discovery.
Therefore, it is irrelevant =
which
particular rule applies in this matter as the critical fact is whether the
release in this matter was reported within the appropriate time frame. [2009 OEA 1=
43, page
148 begins] 13. In
accordance with 329 IAC 1-1-9(b)(1), the appropriate time frame for purpose=
s of
determining ELTF eligibility is seven (7) days. Giving the term “day” =
its
ordinary meaning, the release had to be reported within seven (7) calendar
days. 14. Neith=
er the
IDEM nor the Petitioner have provided any information about whether the
Petitioner knew that a release had been discovered prior to her signature on
the Closure Report. However, =
it is
known that she signed the notification that the USTs had been permanently
closed on November 22, 2005. =
The
Closure Report, containing the sampling results showing that a release had
occurred, was attached to this notification. Therefore, this is the date on whi=
ch the
Petitioner discovered the release. =
15. The r=
elease
should have been reported within seven (7) calendar days or no later than
November 29, 2005. =
16. The C=
losure
Report was sent to the IDEM on December 1, 2005 and received on December 14,
2005. If the presiding ELJ as=
sumes
that the Closure Report could serve as notice to the IDEM that a release had
occurred[5],
the Closure Report was not filed with IDEM on or before November 29, 2005.<=
span
style=3D'mso-spacerun:yes'> 17. The
Petitioner has presented no evidence that the release was reported on or be=
fore
November 29, 2005. 18. There=
is no
genuine issue of material fact.
19. This analysis is dispositive of the issues in this cause. The parties’ arguments about whether (1) the release date assigned by IDEM is proper; (2) the Petitioner= has waived any arguments; (3) 327 IAC 2-6-1 is applicable; or (4) the submissio= n of the Closure Report can be considered a “release report” are irrelevant and will not be addressed.
Final
Order
AND THE COURT, being duly advised, hereby ORDERS, ADJUDG=
ES
AND DECREES that the Indiana Department of Environmental ManagementR=
17;s
Motion for Summary Judgment is GRANTED. Petitioner, Jac=
queline
Smith as Owner of Former Smith Food Shop’s Motion for Summary Judgmen=
t is
DENIED. The Petition for Administrative
Review is DISMISSED.
&nbs= p;
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 administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. This is a Final Order subject to Judicial Review consistent with applicable provisions of IC 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 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
13th day of November, 2009 in
Hon. Catherine Gibbs= p>
Environmental Law Judg= e
[2009 OEA 143: end of decision]
2009 OEA 143 in .doc format
2009
OEA 143 in .pdf format
&nb= sp; = &nb= sp; = &nb= sp; =
[1] 329 IAC 9-1-49 defines UST system as including underground piping and underground ancillary equipment. The release was discovered under the dispenser. The piping leading to the dispense= r is part of the UST system.
[2] Benzene, toluene, ethyl benzene and xylenes.
[3] Total petroleum hydrocarbons.
<=
![if !supportFootnotes]>[4] Underground Storage Tank Financial Assurance Bo=
ard;
328 IAC 1-1-9; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1052; filed Nov 1,1995,
8:30 a.m.: 19 IR 343; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534;
filed Oct 17, 2001, 4:30 p.m.: 25 IR 789; filed Aug 30, 2004, 9:40 a.m.: 28=
IR
125; readopted filed May 14, 2007, 1:52 p.m.: 20070523-IR-328070137BFA
[5] The = ELJ declines to decide this issue as it is not necessary to do so.
Objection to the Denial of Excess Liability Trust Fund Claim,
ELTF #200609504 / FID #15307, Former Smith Food Shop
2009 OEA 143, (09-F-J-4201)