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

Objection to Denial of Excess Liability Trust Fund Claim No. 20043517 / FID 8478, =

Century Oil Marathon, Clermont, Marion County

2009 OEA 24, (04-F-J-3430= )

[2009 OEA 2= 4, page 24 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 24 cite this case as

= ; Century Oil Marathon, 2009 OEA 24.

TOPICS:

Excess Liability Trust Fund Claim

Motion to Set Aside Final Order

modification of final order

dismissal

dismiss

default

jurisdiction

untimely

30 days

excusable ne= glect

I.C. § 4-21.5-3-31

I.C. § 4-21.5-3-31(a)(1)

315 IAC 1-3-1(b)(18)

Ind. Trial R= ule 60(B)

<= /o:p>

PRESIDING JUDGE:

Mary L. Davidsen

PARTY REPRESENTATIVES:

IDEM: &= nbsp; Julie E. Lang, Esq.

Petitioner: = ; David L. Hatchett, Esq., Thomas W. Baker, Esq.; Hatchett & Hauck LLP

ORDER ISSUED:

April 2, 2009

INDEX CATEGORY:

Land

FURTHER CASE ACTIVITY:

[none]

[2009 OEA 2= 4, page 25 begins]

<= span style=3D'mso-bidi-font-size:12.0pt;mso-bidi-font-weight:bold'>

STATE OF INDIANA = ) &= nbsp; &nbs= p; &= nbsp; BEFORE THE INDIANA OFFICE OF

&= nbsp; &nbs= p; &= nbsp; &nbs= p; ) = ; &n= bsp; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION )

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

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; = )

OBJECTION TO = DENIAL OF &nbs= p; &= nbsp; &nbs= p; )

EXCESS LIABIL= ITY TRUST FUND &nb= sp; &= nbsp; ) &= nbsp;

CLAIM NO. 200= 43517 / FAC. ID NO. 8478 &= nbsp; ) &= nbsp; Cause No. 04-F-J-3430

CENTURY OIL <= st1:place w:st=3D"on">MARATHON = ; &n= bsp; = ; )

CLERMONT, MARION COUNTY, INDIANA )

FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER

This matter c= ame before the Office of Environmental Adjudication (“OEA”) on July= 20, 2007 when Century Oil Company (“Century”) filed a Motion to Set Aside Final Order Granting Dismissal of Petition for Review entered on June= 13, 2007. = The Environmental Law Judge (“ELJ”) having considered the parties’ response, reply, petitions, evidence, and pleadings, now finds that judgment may be made upon the record. The ELJ, by subst= antial evidence, and being duly advised, now makes the following findings of fact = and conclusions of law and enters the following Final Order:<= /span>

FINDINGS OF FACT

1.&n= bsp; On August 23, 2004, the Indiana Department of Environmental Management (“IDEM”) sent written notice to Century Oil Company, Attn: Jonathan Bottorf of Lee & Ryan Environmental Service= s, Inc., of IDEM’s decision to deny Excess Liability Trust Fund (“ELTF”) reimbursement until Century obtained “approval o= f a site characterization and/or a corrective action plan.”

2.&n= bsp; Pursuant to I.C. § 4-21.5-3, et seq., Century and Lee & Ryan Environmental Services, Inc. (“L= ee & Ryan”) timely filed a Petition for Review with OEA on September= 2, 2004. Century had assigned its right to ELTF reimbursement to Lee & Ryan pursuant to I.C. §= ; 13-23-8-4(d).

3.&n= bsp; On December 15, 2006, this Court issued an Order= to Submit Status Report. The ord= er required the parties to submit a Status Report on or before March 8, 2007.<= span style=3D'mso-spacerun:yes'> The Order was sent via U.S. Mail, = First Class, postage prepaid. The C= ourt received no indication that service failed and the mail was not returned. No party requested a schedule chan= ge.

4.&n= bsp; A review of the Court’s file indicates that Petitioner filed no further documents with the Court and the Court issued no Orders after December 15, 2006.

[2009 OEA 24, page 26 begins]

5.&n= bsp; On May 15, 2007, IDEM filed a Motion for Default= or Dismissal for Failure to Take Action, based on Century’s failure to f= ile a Status Report by March 8, 2007. Per its Motion, IDEM stated that it had attempted to contact Petitio= ner without response.

6.&n= bsp; On May 16, 2007, this Court issued a Notice of Proposed Order of Default to Century for failure to comply with the December 15, 2006 Order to Submit Status Report.&nb= sp; The Notice of Proposed Order of Default was sent to Lee & Ryan on May 16, 2007 via U.S. Mail, First Class, postage prepaid, and by certified mail, article number 7003 3110 0003 5633 1714. The notice sent via first class ma= il was not returned to the Court. A domestic return receipt for the notice sent via certified mail was returned having been signed on May 18, 2007. The Petitioner did not file any objection or response to the Court’s May 16, 2007 notice.

7.&n= bsp; On June 13, 2007, this Court issued a Final Order Granting Dismissal of Petition for Review (“Dismissal”) pursuan= t to 315 IAC 1-3-7 and -8. The Pet= ition for Review was dismissed with prejudice and all further proceedings before = this Court were vacated. The Dismi= ssal was sent to Lee & Ryan via certified mail, article number 7003 3110 0004 5107 1768. A domestic return receipt for the notice sent via certified mail was signed on June 15, 2007 = and returned to OEA. <= /span>

8.&n= bsp; The Dismissal stated that it was a final order a= nd, informed Century that, pursuant to I.C. § 4-21.5-5-5, a Petition for Judicial Review of t= he Dismissal must be filed with a civil court of competent jurisdiction within thirty (30) days of receiving service in order to be timely.

9.&n= bsp; On July 20, 2007, Century filed a Motion to Set Aside Final Order Granting Dismissal of Petition for Review (“Century’s Motion”) with this Court. Century had been represented by Lee & Ryan; its Motion stated that it was now represented by legal counsel. Century requested th= at this Court set aside the Dismissal pursuant to Ind. Trial Rule 60(B) on the grounds of excusable neglect. Century argues that the circumstances support a finding of excusable neglect since = the Lee & Ryan employee responsible for monitoring this case ended his employment with Lee & Ryan shortly before the Dismissal was issued. Century further asserts that it be= came aware of the litigation of this case after entry of the Final Order. <= /o:p>

10.&= nbsp; Per the Court’s schedule, IDEM filed a response to Century’s Motion with this Court on August 17, 2007. Century filed a reply with this Court on August 31, 2007.=

CONCLUSIONS OF LAW

1. The OEA has jurisdiction over decisions of the Commissioner of the IDEM and the parties= to the controversy pursuant to I.C. § 4-21.5-7-3. I.C. § 4-21.5-3, et seq., and I.C. § 4-21.5-7 all= ow the OEA to promulgate rules and standards in order to allow it to conduct its duties.

[2009 OEA 24, page 27 begins]

2. This is a Fin= al Order issued pursuant to I.C. § 4-21.5-3-23,= I.C. § 4-21.5-3-27, and 315 IAC 1-2-1(9). 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. The issue in this matter is whether thi= s ELJ has the authority to set aside the final order in this cause. Proceed= ings in the OEA are governed by the Administrative Orders and Procedures Act (“AOPA”), I.C. §= <= span style=3D'mso-bidi-font-size:12.0pt'>4-21.5, et seq., and by the procedural rules promulgated by OEA at 315 IAC 1, et seq.

4. I.C. § <= span style=3D'mso-bidi-font-size:12.0pt'>4-21.5-3-31 expressly provides that a f= inal order may be modified as follows:=

(a)&= nbsp; An agency has jurisdiction to modify a final order under this section before the earlier of the following:

(1)&= nbsp; &nbs= p; Thirty (30) days after the agency has served the fi= nal order under section 27, = 29, or 30 of this chapter.

(2)&= nbsp; &nbs= p; Another agency assumes jurisdiction over the final order under section 30 &n= bsp; of = this chapter.

(3)&= nbsp; &nbs= p; A court assumes jurisdiction over the final order u= nder I.C. § 4-21.5-5.

(b)&= nbsp; A party may petition the ultimate authority for an agency for a stay of effectiveness of a final order. The ultimate authority= or its designee may, before or after the order becomes effective, stay the fin= al order in whole or in part.

(c)&= nbsp; A party may petition the ultimate authority for an agency for a rehearing of a final order. The ultimate authority or its desi= gnee may grant a petition for rehearing only if the petitioning party demonstrat= es that:

(1)&= nbsp; &nbs= p; the party is not in default under this chapter;

(2)&= nbsp; &nbs= p; newly discovered material evidence exists; and

(3)&= nbsp; &nbs= p; the evidence could not, by due diligence, have been discovered and produced at the hearing in the proceeding. The rehearing may= be limited to the issues directly affected by the newly discovered evidence. If the rehearing is conducted by a person other than the ultimate authority, section 29 of this chapter applies to review of the order resulting from the rehearing.

(d)&= nbsp; Clerical mistakes and other errors resulting from oversight or omission in a final order or other part of the record of a proceeding may be corrected by an ultimate authority or its designee on the motion of any party or on the motion of the ultimate authority or its desig= nee.

(e)&= nbsp; An action of a petitioning party or an agency under this section neither tolls the period in which a party may object to a seco= nd agency under section 30 of this chapter nor tolls the period in which a par= ty may petition for judicial review under I.C. § 4-21.5-5. However, if a rehearing is granted= under subsection (c), these periods are tolled and a new period begins on the date that a new final order is served.

[2009 OEA 24, page 28 begins]

5.&n= bsp; Under Indiana Rules of Trial Procedure 60(B), a default judgment may be overturned upon a showing= of excusable neglect. However, pursuant to 315 IAC 1-3-1(b)(18), the ELJ= may apply the Indiana Rules of Trial Procedure only where not inconsistent with= AOPA or Title 315. T.R. 60(B) is c= learly inconsistent with the time limitations found in I.C. § 4-21.5-3-31. The Court may not apply T.R. 60(B)= in this case, but must apply the requirements stated in I.C. § 4-21.5-3-3= 1.

6.&n= bsp; The rules of statutory construction provide that statutory language must be given its plain and ordinary meaning. “When construing the language of a statute, the Court of Appeals is b= ound to apply the plain a= nd ordinary meaning of words and phrases.” Miller Brewing Co. v. Bartholome= w County Beverage Cos= ., Inc., 674 N.E.2d 193,= 205 (Ind. Ct. App. 1996).

7.&n= bsp; I.C. § 4-21.5-3-31 expressly allows for the modification of a final order within thirty (30) days if no other agency or court subsequently assumed jurisdiction. Since OEA is the ultimate ad= ministrative authority, another court would assume jurisdiction if a party petitioned for judicial review. No petition = for judicial review was filed. Therefore, no other agency or court has assumed jurisdiction. The OEA maintained authority to modify the final order within, but not after, thirty (30) days of the parties receiving notice.

8.&n= bsp; Century’s Motion was filed with OEA more thir= ty (30) days after the final order was issued. The Dismissal was issued by this Court on June 13, 2007 and Century received notice on June 15, 2007 wh= en a representative of Lee & Ryan signed the domestic return receipt. Century’s Motion was not fil= ed with OEA until July 20, 2007, more than thirty (30) days after receiving notice. Under the plain and ordinary meaning of I.C. § 4-21.5-3-31, the OEA’s jurisdiction to modify a final order expires after the thirty (30) day deadline.

9.&n= bsp; OEA lost jurisdiction to modify the final order in = this matter once Century failed to file its Motion within thirty (30) days of receiving notice of the final order as is required by I.C. § 4-21.5-3-31. Therefore, Century’s Motion should be denied.

FINAL ORDER

AND THE COURT,= being duly advised, hereby FINDS AND ORDERS that: =

<= span style=3D'mso-bidi-font-size:12.0pt'>1. Century failed to timely file its Motio= n to Set Aside Final Order and, therefore, this Court does not have jurisdiction= to consider the matter.

<= span style=3D'mso-bidi-font-size:12.0pt'>2. This Court may not invoke T.R. 60(B) to= set aside a final order since applying T.R. 60(B) in this case would be clearly inconsistent with the I.C. § 4-21.5-3-31(a)(1) time limitation.

[2009 OEA 2= 4, page 29 begins]=

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner’s Motion to Set = Aside Final Order is DENIED. Judgment is entered in favor of IDEM and against Petitioners. Petitioners’ Petition for Re= view is therefore DISMISSED. All further proceedings before the Office of Environmental Adjudication are her= eby VACATED.

You are 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 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, et seq. Pursuant to I.C. § 4-21.5-5-5 a Petition for Judicial Rev= iew of this Final Order is timely only if it is filed with a civil court of compet= ent jurisdiction within thirty (30) days after the date this notice is served.<= o:p>

IT IS SO ORDERED this 2nd day of April, 2009 in Indianapolis, Indiana.<= /b>

&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; Ho= n. Mary L. Davidsen

Chief Environmental Law Judge

[2009 OEA 2= 4: end of decision]

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