Commissioner, Indiana Department of Environmental Management v.
Donna Landers and William Landers
2009 OEA 109, (06-S-E-3832)
[2009 OEA 1= 09, page 109 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 109, cite this case as
&nbs= p; IDEM v. Donna Landers and William Landers, 2009 OEA 109.
Topics:
solid waste
open dumping
mobile home
salvage operation
“Reports of Open Dump Inspection”
demolition
construction
household waste
health
waste removal schedule
payment of a civil penalty
settlement conference
I.C. § 13-30-2-1
329 IAC 10-4-3
Presiding Environmental Law Judge= :
Mary L. Davidsen
Party representatives:
IDEM:
Petitioner: = ; Mark Shere, Esq.
Order issued:
July 30, 2009
Index category:
Land
Further case activity:
[none]
[2009 OEA 1= 09, page 110 begins]
STATE OF
) = OF ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: =
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COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT =
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Case No. 2004-14134-S =
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nbsp; Cause
No. 06-S-E-3832
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Donna Landers and William Landers, &=
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FINDINGS
OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
=
This matter is before the Court pursuant to a December 10, 2007 Final Hearing on Responden= ts, Donna Landers and Williams Landers (“Landers”), December 8, 2006 Peti= tion for Administrative Review of Complainant, Indiana Department of Environment= al Management (“IDEM”) Commissioner’s Order seeking civil penalties from the Landers’ for unpermitted solid waste dumping from mobile home demolition. The C= hief 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 EL= J, by substantial evidence, and being duly advised, now makes the following findi= ngs of fact and conclusions of law and enters the following Order:
FINDINGS OF FACT
1.&n=
bsp;
Donna and William Landers (“Landers”) o=
wn
and operate a mobile home salvage operation business at
2.&n= bsp; Landers do not have any permit from the Indiana Department of Environmental Management (“IDEM”) for storing sol= id waste on the Site.
[2009 OEA 1= 09, page 111 begins]
3.&n=
bsp;
Based on an anonymous referral, IDEM’s series=
of
four Site investigations began on June 13, 2003, conducted by IDEM Office of
Land Quality Inspector Randy Jones (“Inspector”). Inspector Jones majored in biology=
and
earned a Bachelor of Arts from
4.&n=
bsp;
The two investigations at controversy in this cause
were conducted on January 13, 2004 and June 21, 2004, and each reported by =
IDEM
in “Reports of Open Dump Inspection”, and signed by Mr.
Landers. Joint Stipulated Exhibit 1. Neither Inspector Jones’
initial June 13, 2003 IDEM report or the July 13, 2003 Report of Open Dump
Inspection was the basis for IDEM’s action reviewed in this cause. See Complaint, Exs. A, B, C, D.
5.&n= bsp; On January 13, 2004, IDEM Inspector Jones also obse= rved evidence of recent dumping, waste stored within six hundred feet (600’= ;) of a residence, and further suspected that waste was stored within a floodway. Complaint Ex. C.
6.&n=
bsp;
On June 21, 2004, Inspector Jones conducted another
Site inspection, and observed conditions similar to those observed six mont=
hs
earlier, on January 13, 2004, but with the addition of putrescible waste.
7.&n= bsp; At Final Hearing, Mr. Landers testified that he was paid to store some of the deposits on Site, and earned some funds from sell= ing some of the materials. He tes= tified further that some of the materials had caught fire, possibly due to arson, = and that the local fire department responded.&= nbsp; Both Mr. Landers and Inspector Jones testified that over the course = of inspections, that Mr. Landers had stated the intent to remove stored waste. Mr. Landers stated tha= t he was not able to accomplish his stated intent, due to health and financial considerations, but that he had removed some of the waste, and some of the materials could be sold or recycled. Mr. Landers testified that his health and his financial consideratio= ns also hindered his ability to sell or recycle the material.
[2009 OEA 1= 09, page 112 begins]
8.&n=
bsp;
IDEM issued a Notice of Violation and Proposed Agre=
ed
Order to Landers’ (“NOV”) on November 1, 2004 Complaint’s Ex. S. The NOV stated that the Landers did=
not
comply with I.C. § 13-30-2-1 (3, 4, 5) and 329 IAC 10-4-2 and -3 becau=
se
the mobile home demolition debris was a contaminant or solid waste open dum=
ped
on land, in violation of Indiana law and rules adopted by the Solid Waste
Management Board.
9.&n=
bsp;
The NOV contained an offer to enter into an Agreed
Order (“AO”) per I.C. § 13-30-3-3. The AO contained actions to be per=
formed
by Landers, including a waste removal schedule and payment of a civil
penalty.
10.&= nbsp; IDEM and Respondents Landers participated in a settlement conference on November= 29, 2004. Additional AOs and negotiations were conducted; subsequent AOs were issued by IDEM to the Land= ers in February, 2005, March, 2005, September, 2006 and November, 2006.
11.&= nbsp; On November 30, 2006, IDEM’s Commissioner issued a Notice and Order (“Commissioner’s Order”) pursuant to I.C. § 13-30-3-4. Joint Stipulated Ex. 1. &= nbsp;
12.&=
nbsp; The
Commissioner’s Order required the Landers to comply with I.C. §
13-30-2-1 (3, 4, 5) and 329 IAC 10-4-2 and -3, including cease placing furt=
her
deposits, to remove existing deposits per a compliance schedule, and pay a
civil penalty of $8,750.
13.&= nbsp; A Final Hearing was conducted on December 10, 2007; the parties submitted proposed findings of fact, conclusions of law and final orders on February = 11, 2008.
14.&= nbsp; In their February 11, 2008 Proposed Findings of Fact, Conclusions of Law and F= inal Order, the Landers expressly “stipulate[d] their willingness to remove the material in these old breakdown piles to a licensed landfill within nin= ety days of OEA’s final order”.&nb= sp;
CONCLUSIONS OF LAW
1.&n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
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.
[2009 OEA 1= 09, page 113 begins]
3.&n=
bsp;
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue.
all issues a= re to be determined anew, based solely upon the evidence adduced at that heari= ng and independent of any previous findings.&= nbsp;
Grisell v.
4.&n=
bsp;
OEA is required to base its factual findings on
substantial evidence. Jennings Wate=
r,
Inc. v. Office of Environmental Adjudication, Commissioner, Indiana Departm=
ent
of Environmental Management, and Talara Lykins, 2009 Ind. App. Lexis 96=
5,
p. 13 (Ind. Ct. App. July 20, 2009); Huffman v. Office 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). While the par=
ties
disputed whether IDEM’s determination that Landers were open dumping,=
OEA
is authorized “to make a determination from the affidavits . . .
pleadings or evidence.” I.C.
§ 4-21.5-3-23(b).
“Standard of proof generally has been described as a continuum
with levels ranging from a "preponderance of the evidence test" t=
o a
"beyond a reasonable 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
5.&n= bsp; IDEM alleges that the Respondents violated I.C. &se= ct; 13-30-2-1(3), which provides, in pertinent part:
A person may not do any of the following:
…
(= 3) Deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by = one (1) of the boards.
[2009 OEA 1= 09, page 114 begins]
6.&n= bsp; IDEM alleges that the Respondents violated I.C. &se= ct; 13-30-2-1(4), which provides, in pertinent part:
&n= bsp; A person may not do any of the following:
…
(= 4) Deposit or cause or allow the deposit of any contaminants or solid waste upon the l= and, except through the use of sanitary landfills, incineration, composting, gar= bage grinding, or another method acceptable to the solid waste management board.=
7.&n= bsp; IDEM alleges that the Respondents violated I.C. &se= ct; 13-30-2-1(5), which provides, in pertinent part:
&n= bsp; A person may not do any of the following:
…
(5) Dump or cause or allow the open dumping of garbage or of any other solid waste in violation of rules adopted by the solid waste management board.
8. &n=
bsp;
IDEM alleges that the Respondents violated 329 IAC =
10-4-2,
which provides:
&n= bsp; No person shall cause or allow the storage, containment, processing, or dispos= al of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, ai= r or water pollution, or other contamination.
9. &n= bsp; IDEM alleges that the Respondents violated 329 IAC 10-4-3, which provides:
&n= bsp; Open dumping and open dumps, as those terms are defined in I.C. § 13-11-2-1= 46 and I.C. § 13-11-2-147, are prohibited.
10.&= nbsp; Solid waste is defined as “garbage”, “refuse”, or “other discarded material”.&nb= sp; I.C. § 13-11-2-205(a).
11.&= nbsp; While Mr. Landers’s testimony provided substantial evidence that he intended that some of the material was to be recycled or sold, he also presented testimony that he had not sold or recycled the material per his original intent. IDEM presented substa= ntial and reliable evidence that the mobile home material placement on the Site showed that the Site was being used for open dumping of solid waste and that the Respondents caused and/or allowed mobile home demolition debris, a contaminant, to be deposited at the Site, in violation of I.C. § 13-30= -2-1(3), I.C. § 13-30-2-1(4), I.C. § 13-30-2-1(5), 329 IAC 10-4-2 and 329 = IAC 10-4-3.
12.&= nbsp; The Landers argue that the amount of time between the violation and the issuanc= e of the Commissioner’s Order should be considered. However, Landers do not present any evidence that this lapse of time prejudiced them. The mere passage of time is insufficient, without a showing of prejudice, to convince the Court that the Landers should not be found in violation.
[2009 OEA 1= 09, page 115 begins]
13.&= nbsp; The Landers argue that the Commissioner’s Order demands the impossible ta= sk of having the Landers remove all of the homes and that they cannot begin to afford the cost of having all these homes hauled off. The applicable regulations do not = afford the Court the flexibility of allowing compliance cost to eliminate a duty to comply with applicable law. <= /p>
14.&= nbsp; The Respondents also argues that no technical violations of any IDEM standard occurred. However, according to the statutes and rules that govern this act= ion, for which this court has taken judicial notice, specifically, I.C. § 13-30-2-1(3), I.C. &se= ct; 13-30-2-1(4), I.C. § 13-30-2-1(5), 329 IAC 10-4-2 and 329 IAC 10-4-3, = IDEM presented substantial evidence that open dumping violations occurred at the Site.
15.&= nbsp; In their proposed findings of fact, conclusions of law, and order, the Landers argue that the intact mobile homes, and materials which can be sold or recycled, do not constitute solid waste. Landers also stipulated to removal = of material in the “old breakdown piles” within ninety (90) days o= f a Final Order from OEA. Therefo= re, Landers argue that their stipulation to remove this material within ninety = days of a final order from OEA renders moot any determination that the material constituted solid waste. The = Court finds no legal support for such a finding.=
16.&= nbsp; IDEM may elect to use its Civil Penalty Policy[1] to determine the appropriate penalty in this matter. According to this policy, a civil penalty is calculated by “(1) determining a base civil penalty depend= ent on the severity and duration of the violation, (2) adjusting the penalty for special factors and circumstances, and (3) considering the economic benefit= of noncompliance.” The base civil penalty is calculated taking into acco= unt two factors: (1) the potential for harm and (2) the extent of deviation.
17.&=
nbsp; The
policy states that the potential for harm may be determined by considering
“the likelihood and degree of exposure of person or the environment to
pollution” or “the degree of adverse effect of noncompliance on
statutory or regulatory purposes or procedures for implementing the
program.” There are sev=
eral
factors that may be considered in determining the likelihood of exposure.
18.&= nbsp; For the violations of I.C. § 13-30-2-1(3, 4, 5) and 329 IAC 10-4-2 and -3,= the potential for harm is moderate. Open dumping of mobile home debris is an open dumping situation not allowed under the applicable statues and rules, as noted above. There was a large quantity of solid waste determined by IDEM Inspector Randy Jones to be present on the Site as evidenced by Complainant’s Exhibits A-S and by IDEM testimony on the record on December 10, 2007, in this matter. Mr. Landers’ testified t= hat some of the materials burned in an on-site fire.
[2009 OEA 1= 09, page 116 begins]
19.&= nbsp; The second determination for the violations of I.C. § 13-30-2-1(3, 4, 5) a= nd 329 IAC 10-4-2 and -3, is the extent of deviation. This is a mobile home salvaging operation that brings old scrap mobile homes to this site for salvage, ther= eby dumping commercial waste on the Site. Therefore, the extent of deviation was moderate, as evidenced by Complainant’s Exhibits A-S and by IDEM testimony on the record on December 10, 2007, in this matter.
20.&= nbsp; According to the Civil Penalty Policy, a value is selected from the middle of the pen= alty matrix range to establish the base penalty. In this case, the middle range for= a Moderate/Moderate violation is a penalty of $8,750.00. This value may be adjusted by aggravating or mitigating factors. The ELJ finds neither aggravating = nor mitigating factors to consider. Mr. Landers’ testimony that while he was paid to receive materials, and s= old some materials, that his business was not profiting. Therefore, Respondents recei= ved no economic benefit.
21.&= nbsp; The Respondents are assessed a total civil penalty of $8,750.00 for the violati= ons of I.C. § 13-30-2-1(3), I.C. § 13-30-2-1(4), I.C. § 13-30-2-1(5), 329 IAC 10-4-2 and 329 IAC 10-4-3, and the November 30, 2006 Commissioner’s Order is sustained.&n= bsp; The overarching purpose of these laws is to avoid harm to the environment and public health, and to make those engaging in such activities responsible for their actions. The Landers’ multiple offers to remove materials from the Site were not fulfilled, due to the Landers’ economic and physical health circumsta= nces. In their February 11, 2008 Proposed Findings of Fact, Conclusions of Law and Order, the Landers stipulated to removing a portion of the materials within ninety (90) days after the OEA’s Final Order issues. The intent of the applicable regulations in this cause will be fulfilled by not assessing the total civil penalty of $8,750.00 if the Landers remove all deposits stated in the November 30, 2006 Commissioner’s Order within ninety (90) days of this order.
FINAL ORDER
For all of the foregoing = reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Respondents, Donna and William Landers, violated I.C. § 13-30-2-1(3), I.C. § 13-30-2-1 (4), I.C. § 13-30-2-1 (5), 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondents, Donna and William Landers, are subject to civil penalties of Eight Thousand Seven Hun= dred and Fifty Dollars ($8,750.00) for violating Indiana’s environmental management laws and water pollution control laws. The Indiana Department of Environm= ental Management’s November 30, 2006 Commissioner’s Order is AFFIRMED, EXCEPT that should the Landers remove all deposits stated in the November 30, 2006 Commissioner’s Order, per the terms and conditions stated in the Commissioner’s Order, within ninety (90) days of this order, then the Landers will not be subject to payment of civil penalties.
[2009 OEA 1= 09, page 117 begins]
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 Commissione= r of the Indiana Department of Environmental Management. A party is eligible to seek Judici= al Review of this Final Order as stated in applicable provisions of I.C. § 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 th=
is
30th day of July, 2009 in
Hon. Mary L. Davidsen<= /p>
Chief Environmental Law Judge
[2009 OEA 109: end of decision]
20= 09 OEA 109 in .doc format
20= 09 OEA 109 in .pdf format
=
[1] IDEM’s Civil Penalty Policy =
is a
non-rule document, ID No. Enforcement 99-0002-NPD, originally adopted on Ap=
ril
5, 1999 in accordance with Ind. Code
§ 13-14-1-11.5.
Commissioner, Indiana Department of Environmental Management v.
Donna Landers and William Landers
2009 OEA 109, (06-S-E-3832)