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Objection to the Denial of Excess Liability Trust Fund Claim
ELTF #200809507 / FID #8861
Former 7-11 Store 32570, C&J Realty/MDK Corporation
Granger,
2010 OEA 15, (09-F-J-4236)
[2010 OEA 1= 5, page 15 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2010 OEA 15, cite this case as
&nbs= p; Former 7-Eleven, 2010 OEA 15.
TOPICS:
summary judgment
underground storage tanks
Excess Liability Trust Fund
tank fees
328 IAC 1-3-3(b)
Rule
non-rule policy document
PRESIDING JUDGE:
Catherine Gibbs
PARTY REPRESENTATIVES:
Petitioner:  = ; Amy E. Romig, Esq., Karen B. Scheidler, Esq.; Plews Shadley Racher & Braun<= /p>
IDEM:  = ; Julie Lang, Esq.
ORDER ISSUED:
January 22, 2010
INDEX CATEGORY:
Land
FURTHER CASE ACTIVITY:
[none]
[2010 OEA 1= 5, page 16 begins]
STATE OF =
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION
IN THE MA=
TTER OF: &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; =
) OBJECTION=
TO THE
DENIAL OF &nb=
sp; =
) EXCESS LI=
ABILITY
TRUST FUND CLAIM &nb=
sp; ) &=
nbsp; ELTF #200=
809507 /
FID #8861 &nbs=
p; &=
nbsp; &nbs=
p; ) FORMER 7-=
ELEVEN
STORE 32570 &n=
bsp;  =
; ) &=
nbsp; CAUSE
NO. 09-F-J-4236 C&J R=
EALTY /
MDK CORPORATION &nbs=
p; &=
nbsp; ) GRANGER, =
FINDINGS OF FACT, CONCLUSIONS OF L=
AW AND
FINAL ORDER This matt=
er
having come before the Court on the Indiana Department of Environmental
Management’s Motion for Summary Judgment and the Petitioner’s
Motion for Summary Judgment, which pleadings are part of the Court’s
record; and the Court, being duly advised, and having read the motions,
responses, replies, record, pleadings and evidence now finds that judgment =
may
be entered and makes the following findings of fact, conclusions of law and
final order. Findings
of Fact 1.&n=
bsp;
Petitioner C & J Realty/MDK Corporation (the
Petitioner) owns a gasoline station located at 15046 SR 23 in Granger, 2.&n=
bsp;
On December 11, 2008, the Petitioner applied for a
determination of whether the Site was eligible for reimbursement from the
Excess Liability Trust Fund (the ELTF).&nb=
sp;
On February 18, 2009, the Indiana Department of Environmental Manage=
ment
(the IDEM) notified the Petitioner that the Site was eligible to receive
reimbursement, but at a reduced percentage. The IDEM determined that Petitione=
r had
paid 55% of the underground storage tank (UST) annual fees due at the time =
the
release was reported to IDEM (2008) and therefore should be reimbursed only=
55%
of eligible corrective action costs.
3.&n=
bsp;
The IDEM alleged that the owner or operator of the =
USTs
failed to pay 4 out of 5 tank fees for 1988 and none of the tank fees due f=
or
the years 1989 through 1996. =
4.&n=
bsp;
The IDEM concedes that tank fees were not due in 19=
96
and therefore the Petitioner is eligible to receive 59%. 5.&n=
bsp;
A waste oil tank was removed in 1989. The remaining USTs were removed in
1995. After the Petitioner
purchased the property in 1995, new USTs were installed. Tank fees were due on the new USTs
starting in 1997. [2010 OEA 1=
5, page 17
begins] Conclusions of Law 1. 2.&n=
bsp;
Findings of Fact that may be construed as Conclusio=
ns of
Law and Conclusions of Law that may be construed as Findings of Fact are so
deemed. 3. all issues are =
to
be determined anew, based solely upon the evidence adduced at that hearing =
and
independent of any previous findings. <=
o:p> Grisell =
v. 4. 5. 6. 7. 8. [2010 OEA 1=
5, page 18
begins] (b) Pers=
ons
listed in section 1 of this rule shall be eligible to apply to the fund for
reimbursement from the fund according to the following formula: <=
span
style=3D'mso-list:Ignore'>(1)&=
nbsp;
Determine the number of payments that w=
ere
owed under I.C. §
13-23-12-1 on all regulated tanks at the facility from which a release occu=
rred,
beginning with the date that the fees for each tank first became due under =
I.C.
§=
13-=
23-12
and continuing until the date on which the release occurred. <=
span
style=3D'mso-list:Ignore'>(2)&=
nbsp;
Determine the number of payments actual=
ly
made under I.C. §
13-23-12-1 on all regulated tanks at the facility from which a release
occurred, beginning with the date each tank became regulated under I.C. § 13-=
23 and
continuing until the date on which the release occurred. Divide the number =
of
payments actually made by the number of payments due as determined in
subdivision (1). (3) Dete=
rmine
the amount of money the person would have received from the fund if all
payments due on the date the release occurred had been paid when due and
multiply the amount by: <=
span
style=3D'mso-list:Ignore'>(A)&=
nbsp; the
percentage determined in subdivision (2), if the percentage is fifty percent
(50%) or more; or (B) zero
(0), if the percentage determined in subdivision (2) is less than fifty per=
cent
(50%). 9. 10. 11.&=
nbsp; When
interpreting a statute or regulation, the Court must apply certain rules of
statutory construction. ̶=
0;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 [2010 OEA 1=
5, page 19
begins] 12.&=
nbsp; Another
rule of statutory interpretation is, “If a statute is subject to
interpretation, our main objectives are to determine, effect, and implement=
the
intent of the legislature in such a manner so as to prevent absurdity and
hardship and to favor public convenience.” State v. Evans, 790
N.E.2d 558, 560 ( 13.&=
nbsp; It
is clear from the regulation that the IDEM must consider the fees paid on all regulated tanks at the facility. There is no requirement that the r=
elease
be traced to a specific UST. =
The
rule does not distinguish between USTs that may have been previously locate=
d at
the facility and USTs installed at a later date. It merely says “all regulated
tanks”. Applying the pl=
ain
language of the rule, this should be interpreted to include all regulated
tanks, for which fees were due, that were ever located on the facility. 14.&=
nbsp; The
Petitioner’s interpretation would require that the identification of =
the
tank which was the source of the release.&=
nbsp;
Given the nature of contamination at most gasoline stations (releases
from USTs operated over many years under different standards), this, in many
cases, would be a difficult and expensive proposition, if it could be done =
at
all. This creates a hardship =
to the
owners and operators.
15.&=
nbsp; Further,
the IDEM’s interpretation is supported by other statutes and regulati=
ons
which set out the method by which subsequent owners/operators may remedy the
failure to pay tank fees by prior owners/operators. I.C. § 13-23-8-4.5 and 328 IAC 1-3-3(a)(=
4)
and (d). If the intent of the
legislature and the Financial Assurance Board[3]
were to base eligibility on tank fee payments for only those USTs from which
the release occurred, then these provisions would be pointless. 16. =
The
Petitioner also argues that the IDEM has a policy that it will not include =
the
years 1988 through 1991 in its eligibility calculations and that contrary to
this policy, these years were improperly included in the eligibility calcul=
ation. This allegation is based on the
affidavit of Steven Browning, a former IDEM employee. Regardless of the wisdom or practi=
cality
of requiring the owner/operator to maintain records for many years (over 20
years if a facility was operating in 1988), this is the law and the ELJ will
not overturn IDEM’s decision based on whether this is the best course=
of
action. The statute clearly
requires the IDEM to calculate eligibility based on all years that USTs were
present at the facility. The =
policy
that the years 1988 through 1991 should not be included in the calculation =
is in direct conflict with statutory authority and wi=
th the
formally promulgated rules; has not been published as a “non-rule pol=
icy
document” under I.C. §=
;
13-14-1-11.5; and has not been promulgated as a rule. Such a policy does not have the ef=
fect
of law and is an invalid, unpromulgated rule and is therefore not
enforceable. [2010 OEA 1=
5, page 20
begins] 17. =
In
addition, this ELJ has previously ruled that the IDEM properly included the
years 1988 through 1991 in its calculations. See
Objection to Denial of Excess Liability Trust Fund Claim No. 200007524, Uno=
cal
76, 18. Final Order AND THE COURT, being duly advised, hereby <=
b>ORDERS,
ADJUDGES AND DECREES that the Indiana Department of Environmental
Management’s Motion for Summary Judgment is GRANTED.&nb=
sp;
The Petitioner’s Motion for Summary Judgment is DENIED. The Petition for Administrative
Review is DISMISSED. You are hereby further notified that pursuant to
provisions of I.C. § 4-21.5-7.5, the Office of Environmental Adjudicat=
ion
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 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 ci=
vil
court of competent jurisdiction within thirty (30) days after the date this
notice is served. IT
IS SO ORDERED this 22nd day of January, 2010 in Hon.
Catherine Gibbs Enviro=
nmental
Law Judge [2010 =
OEA
15: end of decision] 2010=
OEA
15 in .doc format 2010=
OEA
15 in .pdf format The
Petitioner argues that the phrase must be interpreted to include only those
regulated USTs from which the release actually occurred. The Petitioner argues that eligibi=
lity
should be based on the number of fee payments made on the USTs between 1997
(the year that the new USTs came into service) and 2008 because these are
allegedly the USTs from which the release occurred. There is no question of material fa=
ct in
this matter and summary judgment should be granted in favor of IDEM. The Petitioner, C & J Realty/M=
DK
Corporation is eligible to receive reimbursement of 59% of its eligible
corrective action costs.
[1] This statute requires the Financial Assurance Board to adopt rules establis= hing standards and procedures when an owner or operator has failed to pay all fees. These rules were promul= gated under 328 IAC 1.
[2] This is the year the release was reported.
[3] This is the board responsible for promulgating the ELTF rules under 328 IAC= .
Objection t= o the Denial of Excess Liability Trust Fund Claim ELTF #200809507 / FID #8861
Former 7-11= Store / 32570C&J Realty/MDK Corporation
Granger,
2010 OEA 15, (09-F-J-4236)