In re:  Objection to Issuance of Variance FT-6425

From 326 IAC 4-1 Mill Township Volunteer Fire Department, Grant County, Indiana

2004 OEA 4 (03-A-J-3163)

 

 

[2004 OEA 4, page 4 begins]

 

TOPICS:

variance

burn

fire training

motion to dismiss

moot

 

PRESIDING JUDGE:

Davidsen

 

PARTY REPRESENTATIVES:

Permittee:         Joseph W. Hewitt, Assistant Chief, Mill Township Volunteer Fire Department

Petitioner:         Pamela Sharp Meyer, Esq., Beasley & Gilkison, LLP

IDEM:              Jacquelyn F. Moore, Esq.

 

ORDER ISSUED:

March 3, 2004

 

INDEX CATEGORY:

Air

 

FURTHER CASE ACTIVITY:

[none]

 

 

[2004 OEA 4, page 5 begins]

 

STATE OF INDIANA            )           BEFORE THE INDIANA OFFICE OF

                                                )           ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION        )

 

IN THE MATTER OF:                                                                        )

                                                                                                            )

OBJECTION TO THE ISSUANCE OF                                              )           CAUSE NO.  03-A-J-3163

VARIANCE FT-6425 FROM 326 IAC 4-1                                        )

MILL TOWNSHIP VOLUNTEER FIRE DEPT.                                 )

GRANT COUNTY, INDIANA.                                                          )

 

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER GRANTING  MOTION TO DISMISS PETITION FOR ADMINISTRATIVE REVIEW

 

Please be notified that Office of Environmental Adjudication (“OEA” or “Court”) Cause No. 03-A-J-3163 is hereby dismissed from the OEA pursuant to the final dismissal of the petitioners for review of this action under Ind Tr. R. 12(b)(6) and 315 IAC 1, for failure to state a claim upon which relief can be granted.  The Environmental Law Judge hereby makes the following findings of fact and conclusions of law:

 

Findings of Fact

 

1.                  On August 19, 2003, the Indiana Department of Environmental Management (“IDEM”) mailed its approval of Variance FT-6425 from 326 IAC 4-1, approving the Mill Township Volunteer Fire Department (“Permittee”) to burn a residential structure at 4740 East 600 South, Marion, Grant County, Indiana, for fire training, which approval is the subject matter of this case.  The document containing approval further states that the approval expires on December 31, 2003.

2.                  On August 27, 2003, counsel for Jane Alene Jones, Personal Representative of the Estate of Geraldine LaFrance Ruley, filed a Petition for Administrative Review (“Petition”).  In the Petition, Ms. Jones requested a determination of the Permittee’s financial responsibility and insurance coverage. 

3.                  On September 4, 2003, the OEA ordered the Petition for Administrative Review set for Prehearing Conference on September 24, 2003, which Prehearing Conference was conducted as scheduled.

4.                  On March 1, 2004, the Indiana Department of Environmental Management, (“IDEM”), by counsel, filed a Motion to Dismiss the above-captioned matter, asserting that the matter was now moot as the issued permit had expired on December 31, 2003.

 

Conclusions of Law

 

1.      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 Ind. Code § 4-21.5-7, et seq.

 

[2004 OEA 4, page 6 begins]

 

2.      This is a Final Order issued pursuant to Ind. Code § 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.

 

3.      “When a dispositive issue in a case has been resolved in such as way as to render it unnecessary to decide the question involved, the case will be dismissed.”  Travelers Indem. Co. v. P.R. Mallory & Co., 772 NE.2d 479, 484 (Ind. App. 2002).  A case is deemed moot when there is no effective relief that can be rendered to the parties by the Court.  A.D. v. State, 736 N.E.2d 1274, 1276 (Ind. App. 2000).  In this case, expiration of the permit has eliminated the matter in controversy, and has effectively resolved the case.  The Court has no relief available to grant after the permit has expired.  Ms. Jones’  Petition for Administrative Review must therefore be dismissed.

 

Final  Order

 

IT IS THEREFORE ORDERED that the Petition for Administrative Review filed by Petitioner Jane Alene Jones, Personal Representative of the Estate of Geraldine LaFrance Ruley is hereby dismissed as the cause is now moot; the permit in controversy has expired and is no longer in effect.   

 

You are hereby further notified that pursuant to provisions of Indiana Code § 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 IC 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 3rd day of March, 2004 in Indianapolis, IN.

 

Hon. Mary L. Davidsen

Chief Environmental Law Judge

 

[2004 OEA 4: end of opinion]

 

 

2004 OEA 4 in Microsoft Word format

 

2004 OEA 4 in .pdf format