OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA X, cite this case as

Commissioner, Indiana Department of Environmental Management v.

Harry Randhawa, LA Oasis, Inc.

2009 OEA 1, (07-S-E-4042)<= /b>

[2009 OEA 1= , page 1 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 1, cite this case as

   &nbs= p;        IDEM v. La Oasis, Inc., 2009 OEA 1.

Topics:     &= nbsp;

underground storage tank

piping monitoring and testing

notice

Commissioner’s Order

Petition for Administrative Review

Presiding Environmental Law Judge= :

Mary L. Davidsen

Party representatives:

IDEM:   = ;           Steven D. Griffin, Esq.

Respondent:  = ;   John P. Reed, Esq.; Abrahamson Reed & Bilse

Order issued:

January 22, 2009

Index category:

Land

Further case activity:

[none]

[2009 OEA 1= , page 2 begins]

=

STATE OF INDIANA        =             &nb= sp; )        =        BEFORE THE INDIANA OFFICE OF

        =             &nb= sp;            =             &nb= sp;            = )        =        ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION        &= nbsp;           )<= span style=3D'mso-spacerun:yes'>        =

IN THE MATTER OF:        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; )

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         )

COMMISSIONER, INDIANA DEP= ARTMENT OF       = ;       )

ENVIRONMENTAL MANAGEMENT,=         &= nbsp;           &nbs= p;          )        &= nbsp;           &nbs= p;

IDEM Case No. 2006-15720-= S        &= nbsp;           &nbs= p;            &= nbsp;            )

            <= /span>Complainant,        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;     )

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         )

            <= /span>v.        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;          )        &= nbsp; CAUSE NO. 07-S-E-4042

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         )

HARRY RANDHAWA, LA OASIS,= INC.,        &= nbsp;           &nbs= p;       )

Crown Point, Lake County,= Indiana        &= nbsp;           &nbs= p;            &= nbsp;        )

Responde= nt        &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;       )

&nb= sp;

= FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER

This matter is before the= Court pursuant to Complainant, Indiana Departme= nt of Environmental Management’s October 16, 2008 Motion to Dismiss, or in the Alternative, Motion for Default Respondent Har= ry Randhawa, La Oasis, Inc.’s Petition for Administrative Review due to = the petition’s late filing, and alternatively, for default for Respondent’s subsequent failure to meet two filing deadlines set by t= he Court. In an Order issued contemporaneously with this Findings of Fact, Conclusions of Law and Final Order, the Court granted Respondent Leave for Late Filing of its Response to Plaintiff’s (sic) Motion to Dismiss, or in the Alternative, Motion for Default. Therefore, the parti= es fully briefed their positions on dismissal and default. Complainant, IDEM, timely filed its November 13, 2008 proposed findings of fact, conclusions of law and order; Respondent did not submit proposed findings. Oral argument was not requested nor conducted. The Chief Environmental Law Judge (“ELJ”) having considered the petitions, testimony, evidence, and pleadings of the parties, now finds that judgment may be made upon the record. The Chief ELJ, by substantial evid= ence, and being duly advised, now makes the following findings of fact and conclusions of law and enters the following Final Order:

=

FINDINGS OF FACT

1.&n= bsp;     This matter concerns the Indiana Department of Environmental Management’s (“IDEM”) attempts to enforce i= ts allegations that Respondent, Harry Randhawa and La Oasis, Inc. (“Respondent” or “La Oasis”) failed to perform or m= aintain required underground storage tank system (“UST”) tank system and piping monitoring and testing at the 9297 Taft Street, Merrillville, Lake County, Indiana facility owned/operated by Respondent. IDEM communicated its allegations = to Respondent in a series of communications, including a July 7, 2006 Notice of Violation, an October 11, 2007 Agreed Order, and a November 27, 2007 Commissioner’s Order (“CO”).   The CO was transmitted to La= Oasis at the same addressed

&= nbsp;

[2009 OEA 1= , page 3 begins]

      used for a= ll prior correspondence to La Oasis, and to the same address provided to the C= ourt by Harry Randhawa for these proceedings.

2.&n= bsp;     The Court received a one-page letter from Harry Randhawa (“Letter”), which Letter the Court deemed as a Petition for Administrative Review. Th= e text of the Letter indicated that the Letter was dated December 22, 2007 and was sent via certified mail. The certified mail was postmarked December 31, 2007. Therefore, La Oasis’ Petitio= n for Administrative Review (“Petition”) was filed December 31, 2007.

3.&n= bsp;     On January 7, 2008, the Court issued a Notice of Incomplete Filing and Order to Supplement Petition (“Notice”) t= o La Oasis, at the address used by Respondent on the Petition for Administrative Review. The certified mail tr= ansmission was returned to the Court as “unclaimed” on February 14, 2007; = the regular mail transmission was not returned. La Oasis responded to the Court= 217;s Notice on February 4, 2007.

4.&n= bsp;     In its Petition, La Oasis claimed that it received IDEM’s CO on December 20, 2007 “by hand from Mr. Robert Stimbu”. No evidence ha= s been presented to indicate Mr. Stimbu’s affiliation to any party, or to the United States Post Office. Mr. Randhawa’s March 9, 2008 email to his legal counsel states that he was communicated with IDEM prior to filing his Petition. IDEM’s Motion, Ex. A. In La Oasis’ Response to IDEM’s Motion, Respondent, by counsel, does = not address the exact date as to when Respondent received the CO, but argues th= at any failure by Mr. Randhawa to respond in a timely fashion should be excused due to extreme financial and personal family health crises which pressured = Mr. Randhawa, and to the fact that at the time, Mr. Randhawa was not represente= d by counsel and was proceeding pro se. IDEM’s Motion presents subst= antial evidence that the United States Post Office attempted to deliver the CO on November 30, 2007.

&n= bsp;

CONCLUSIONS OF LAW<= /b>

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.

2.&n= bsp;     This is a Final Order issued pursuant to I.C. § 4-21.5-3-23, I.C. § 4-21.5-3-27, and 315 IAC 1-2-2. 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.=

3.&n= bsp;     The OEA’s findings of fact must be based exclusively on the evidence presented to the Environmental Law Judge (“ELJ”) and deference to the agency’s initial factual determination is not allowed. = I.C. § 4-21.5-3-27(d); Indiana Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E. 100 (In= d. 1993); Indiana-Kentucky Electric v. Commissioner, Indiana Department of Environmental Management, 820 N.E.2d 771, 781 (Ind. App. 2005). &#= 8220;De novo review” means that:

      all are to = be determined anew, based solely upon the evidence adduced at that hearing and independent of any previous findings.

[2009 OEA 1= , page 4 begins]

      Grisell v. = Consol. City of Indianapolis, 425 N.E.2d 247 (Ind.Ct.App. 1981).

4.&n= bsp;     OEA is required to base its factual findings on substantial evidence. Huffman v. Of= fice 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). The parties disputed whether Respondent’s Petition for Administrative Review was timely filed. OEA= is authorized “to make a determination from the affidavits . . . pleadin= gs or evidence.” I.C. &sec= t; 4-21.5-3-23(b). “Standa= rd of proof generally has been described as a continuum with levels ranging from a "preponderance of the evidence test" to a "beyond a reasonab= le 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 Moore, 453 N.E.2d 971, 972, n. 2. (I= nd. 1983). The "substantial evidence" standard requires a lower burden of proof than the preponder= ance test, yet more than the scintilla of the evidence test. Burke v. City of Anderson, 612 N.E.2d 559, 565, n.1 (Ind. Ct. A= pp. 1993). GasAmerica #47, 2004 OEA 123, 129. See also Blue River Val= ley, 2005 OEA 1, 11-12. Objection to the Denial of Excess Liab= ility Trust Fund Claim Marathon Point Service, ELF # 9810570/FID #1054, New Castle, Henry County, Indiana; Winimac Service, ELF #9609539/FID #14748, Winimac, Pulaski County, Indiana; HydroTech Consulting and Engineer= ing, Inc. (04-F-J-3338), 2005 OE= A 26, 41.

&= nbsp;

5.&n= bsp;     I.C. § 13-30-3-5 provides that Commissioner’s Orders (CO) must be appealed to the Office of Environmental Adjudication within twenty (20) days of the CO’s receip= t.

6.&n= bsp;     Respondent La Oasis had twenty (20) days from Novem= ber 30, 2007, the date of Respondent’s receipt of the CO, until Thursday, December 20, 2007, to file the Petition for Review.

7.&n= bsp;     Even = if Respondent’s response filed with the Court could be considered a Peti= tion for Review, it was not filed in a timely manner.

8.&n= bsp;     The Petition for Review was not filed until December 31, 2007, and was not timely filed in this matter.

&= nbsp;

9.&n= bsp;     No provision of law, including I.C. § 4-21.5, = et seq., or I.C. § 13-30-3-5, allows the Court discretion to extend a deadline to file a Petition for Administrative Review, even for financial or personal family health crises, despite their regrettable sincerity or severity. Wayne Metal Prod. V. Dept of Env. M= an., 721 N.E.2d 316, 319 (Ind. Ct. App. 1999), trans. den. (Ind.= 2000). And, it is well established that pro se litigants a= re held to the same standard as are licensed lawyers. Goossens v. Goossens<= /i>, 829 N.E.2d 36, 43 (Ind. Ct. App. 200= 5).

&= nbsp;

10.&= nbsp; As this Court’s conclusion that it lacks jurisdiction to hear this Petit= ion for Administrative Review is dispositive of this case, the Court will not address further arguments as to whether this matter should be dismissed by default.

[2009 OEA 1= , page 5 begins]

11.&= nbsp; As this matter is dismissed for failure to file a timely Petition for Administrative Review of IDEM’s CO, the facts and law contained in th= e CO become the law of the case. <= st1:State w:st=3D"on">= Id.

FINAL ORDER

AND THE COURT, being duly advised, hereby FINDS AND ORDERS that Complainant, Indiana Department of Environmental Management, has provided substantial evidence required to meet its burden of showing that Respondent’s Petition for Administrative R= eview was not timely filed, as a matter of law, and should be dismissed.   Respondent, Harry Randhawa a= nd La Oasis, Inc., did not provide substantial evidence to contravene Complainant’s requisite burden of proof and persuasion. Complainant, Indiana Department of Environmental Management, is entitled to judgment that Respondent’s petition for administrative review should be dismissed.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Complainant, Indiana Department of Environmental Management’s Motion to Dismiss is GRANTED. Judgment is entered in favor of Complainant, Indiana Department of Environmental Management and against Respondent Harry Randhawa and La Oasis, Inc, whose Petition for Administrat= ive Review is therefore DISMISSED. The Indiana Department of Environmental Management’s Commissioner’s Order is the law of t= he case. All further proceedings before the Office of Environmental Adjudication are hereby VACATED.

You are further notified = that pursuant to provisions of I.C. § 4-21.5-7-5, the Office of Environment= al Adjudication serves as the ultimate authority in administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. This is a Final O= rder subject to Judicial Review consistent with applicable provisions of I.C. &s= ect; 4-21.5, et seq. 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 in Indianapolis, Indiana this 22nd day of January, 2009.

      = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;   Hon. Mary L. Davidsen

Chief Environmental Law Judge

[2009 OEA 1: end of decision]

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