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Commissioner, Indiana Department of Environmental Management,
Case No. 2009-18337-S,
v.
Stewart Recycling, Inc.,
2010 OEA 149, (10-S-E-4396)
[2010 OEA 1= 49, page 149 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2010 OEA 149, cite this &nbs= p;
<= /span>case as IDEM v. Stewart Recycling, Inc., 2010 OEA 149.
TOPICS:
Motion to Di=
smiss
untimely fil=
ed
registered w=
aste
tire storage
waste tire
processing
Registered A=
gent
Office of La=
nd
Quality
violation
NOV (Notice =
of
Violation)
Agreed Order=
Commisisoner=
’s
Order (CO)
certified ma=
il
service of p=
rocess
incompetent<= o:p>
president
secretary
same address=
manure distr=
ibution
I.C. §
13-30-3-5
I.C. §
23-1-24-1
I.C. §
23-1-24-4
329 IAC 15-3-9
329 IAC 15-3-6
329 IAC 15-3-2(2) and (3)
329 IAC 15-5-1(2)
329 IAC 15-5-3.5(1) and (2)
329 IAC 15-3-17(c) (1) and (2)
329 IAC 15-3-17 (h)(1) and (2)
329 IAC 15-3-7(j)(1), (2) and (3)
327 IAC 15-2-5
40 CFR 262.11
Trial R. 4.2(B)
Ind. Evid. R=
. 702
Coulopoulos, Cause No. 06-S-E-3683
Harry Randhawa, La Oasis,=
Inc., 2009 OEA 1
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM:  = ; Justin D. Barrett, Esq.
Respondent:  =
;
&nbs= p; &= nbsp; Taft Stettinius & Hollister, LLP
ORDER ISSUED:
September 22, 2010
INDEX CATEGORY:
Land
FURTHER CASE ACTIVITY:
Judicial Review
[2010 OEA 1= 49, page 150 begins]
STATE
OF
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )
&n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; &n= bsp; )
COMMISSIONER, INDIANA DEP= ARTMENT OF &nbs= p; )
ENVIRONMENTAL MANAGEMENT,= &= nbsp; &nbs= p; )
Case No. 2009-18337-S,
Complainant, &nb=
sp; =
&nb=
sp; =
&nb=
sp; =
&nb=
sp; =
) <=
/span>v. &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; ) &=
nbsp; CAUSE
NO. 10-S-E-4396 &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp;  =
; &n=
bsp; ) STEWART RECYCLING, INC.,<=
span
style=3D'mso-tab-count:4'> &=
nbsp; &nbs=
p; &=
nbsp; ) <=
/span>Respondent &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; ) <=
/span> FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER <=
/span>This
matter came before the Office of Environmental Adjudication (“OEAR=
21;
or “Court”) on Complainant, Indiana Department of Environmental
Management’s August 27, 2010 Motion to Dismiss (“Motion”)=
. The parties fully briefed their
positions and did not request oral argument. The Chief Environmental Law Ju=
dge
(“ELJ”) having considered the petitions, evidence, and pleading=
s of
the parties, now finds that judgment may be made upon the record. The ELJ, by substantial evidence, =
and
being duly advised, now makes the following findings of fact and conclusion=
s of
law and enters the following Final Order: Findings of Fact 1. Stewart
Recycling, Inc., (“Stewart Recycling”) owns and/or operates a
registered waste tire storage and processing facility at 2. Online
records of the Indiana Secretary of State’s office dated September 8,
2010 indicate that since 1993, Stewart Recycling’s Registered Agent is
Eric Stewart, [2010 OEA 1=
49, page
151 begins] 3. The
Indiana Department of Environmental Management (“IDEM”) alleged
that its Office of Land Quality staff found violations on Site during
investigations on March 13, 2008, May 28, 2008, September 15, 2008, December
12, 2008 and March 17, 2009. =
Petitioner’s July 29, 2010 Petit=
ion
for Administrative Review, Adjudicatory Hearing, and Stay of Effectiveness
(“Petition”), Ex. A, p.4 (IDEM Commissioner’s Order).=
4. I.C.
§ 13-30-3-3 requires IDEM to afford alleged violators the opportunity =
to
resolve potential violations prior to litigation. On May 27, 2009, the IDEM Commissi=
oner
issued a Notice of Violation (“NOV”) to Stewart Recycling, alle=
ging
violations of 329 IAC 15-3-9, 329 IAC 15-3-6, 329 IAC 15-3-2(2) and (3), 329
IAC 15-5-1(2), 329 IAC 15-5-3.5(1) and (2), 329 IAC 15-3-17(c) (1) and (2),=
329
IAC 15-3-17 (h)(1) and (2), 329 IAC 15-3-7(j)(1), (2) and (3), 40 CFR 262.11
and 327 IAC 15-2-5. Petitioner’s July 29, 2010 Petit=
ion
for Administrative Review, Adjudicatory Hearing, and Stay of Effectiveness
(“Petition”), Ex. A, FINDING OF VIOLATION, p. 7, ¶ 15.=
IDEM sent the NOV and accompanying
Agreed Order by certified mail separately to Eric Stewart and to Sandra
Stewart, both of Stewart Recycling, Inc., 5. The
NOV contained an offer to enter into an Agreed Order stating actions requir=
ed
to correct the violation. 6. The
parties did not enter into an Agreed Order. D., ¶ ¶17, 18. After sixty (60) days passed after=
its issuance
of the NOV and Agreed Order, on July 1, 2010, IDEM issued a Notice and Orde=
r of
its Commissioner (“Commissioner’s Order” or “COR=
21;)
to Stewart Recycling for failure to comply with specified operational and
reporting conditions of its registration, and for failure to maintain its
financial assurance, in violation of 329 IAC 15, et seq. IDEM sent the CO by certified m=
ail
separately to Eric Stewart, certified mail article no.
91-7190-0005-2710-0006-3205, and to Sandra Stewart, certified mail article =
no.
91-7190-0005-2710-0006-3243, both of Stewart Recycling, Inc., [2010 OEA 1=
49, page
152 begins] 7. The
CO required Stewart Recycling to do specified tasks. CO,
ORDER, p. 7 – 8, ¶¶ 1 through 13. The CO informed
Stewart Recycling that if Stewart Recycling did not file its objections via
petition for administrative review with OEA within nineteen (19) days[1]
from Stewart Recycling’s receipt of the Notice and Order, then the No=
tice
and Order would become effective and enforceable. CO,
EFFECTIVE DATE OF ORDER, p. 8. 8. Stewart
Recycling’s July 29, 2010 Petition states “Stewart Recycling
received a copy of the Commissioner’s Orders on July 10, 2010, when
Sandra Stewart signed for the mailing.” Petition,
p. 2. 9. Stewart
Recycling, through Sandra Stewart, contends that her brother, Eric Stewart,=
is
not competent to receive service of process, as a result of a 2002
“traumatic, work-related accident that caused him to suffer brain inj=
ury,
leaving him impaired.” =
September 7, 2010 Stewart Recycling
Inc.’s Response to IDEM’s Motion to Dismiss, Ex. B, Affidavit of
Sandra Stewart (“Affidavit”), ¶¶ 5, 6. A
review of Sandra Stewart’s Affidavit does not assert particular medic=
al
expertise, but shows that she has personal knowledge of her observations of
Eric Stewart’s conduct, and their mother’s statement that a CAT
scan showed that Eric Stewart had brain damage. Conclusions of Law [2010 OEA 1=
49, page
153 begins] 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. 3.&n=
bsp;
In this case, IDEM seeks dismissal, asserting that =
OEA
lacks subject matter jurisdiction over Stewart Recycling’s untimely-f=
iled
petition for administrative review.
When ruling on a motion to dismiss, “a court is required to ta=
ke
as true all allegations upon the face of the complaint and may only dismiss=
if
the plaintiff would not be entitled to recover under any set of facts
admissible under the allegations of the complaint.” Huffman
v. Office of Envt'l. Adjudication, 811 N.E.2d 806, 814 ( 4.&n=
bsp;
In determining the facts at issue, this Court must
apply a de novo standard of review to this proceeding. 5.&n=
bsp;
OEA is required to base its factual findings on
substantial evidence. 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). W=
hile
the parties disputed IDEM’s determination that Stewart Recycling rece=
ived
the CO and did not appeal it in a timely manner, OEA is authorized “to
make a determination from the affidavits . . . pleadings or
evidence.” I.C. §
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 [2010 OEA 1=
49, page
154 begins] Bu=
rke v.
City of Anderson, 612 N.E.2d 559, 565, n.1 (Ind. Ct. App. 1993). GasAmerica #47, 2004 OEA 123, 129. See also Blue River Vall=
ey,
2005 OEA 1, 11-12. Objecti=
on to
the Denial of Excess Liability Trust Fund Claim Marathon Point Service, ELF=
# 9810570/FID #1054, New Castle, H=
enry
County, Indiana; Winimac Service,ELF #9609539/FID #14748, Winimac, Pulaski
County, Indiana; HydroTech Consulting and Engineering, Inc. (04-F-J-=
3338),
2005 OEA 26, 41. 6.&n=
bsp;
The parties dispute whether Respondent’s Peti=
tion
for Administrative Review in this forum was timely filed. A person who is “aggrieved or
adversely affected” by, and wants to challenge, an agency action or
order, to seek administrative review by filing a written petition for
administrative review in compliance with I.C. § 4-21.5-3-7(a). Petitions for review of IDEM agency
actions are filed with OEA, I.C. § 4-21.5-7, et seq. 7.&n=
bsp;
I.C. § 13-30-3-5 provides that
Commissioner’s Orders (“CO”) must be appealed to the Offi=
ce
of Environmental Adjudication before twenty (20) days of the CO’s
receipt. If not timely appeal=
ed,
the CO takes effect. Wayne Metal Products Company, Inc. v.
Indiana Department of Environmental Management, 721 N.E.2d 316, 319 (In=
d.
Ct. App. 1999); In Re: Harry Randhawa, La Oasis, Inc.=
, 2009 OEA 1, 3. 8.&n=
bsp;
Stewart Recycling had to file its Petition for
Administrative before twenty (20) days after it received notice of the CO to
file an administrative appeal with OEA.&nb=
sp;
9.&n=
bsp;
Stewart Recycling asserts that was not served upon
receipt on July 6, 2010 by Eric Stewart, because Eric Stewart was not compe=
tent
or was not believed to be competent to receive service of process. Ind.
Trial Rule. 4.2 (B); Gourley v.=
L.Y.,
657 N.E.2d 448, 450 n. 2 (Ind. Ct. App. 1995); see also 10.&=
nbsp; OEA
has examined prior challenges to dismissal of petitions for administrative
review based on different dates of receipt by different people with access =
to
mail received at one address. In Indiana Dep’t of Highways v. Dix=
on,
541 N.E.2d 877, 880 ( [2010 OEA 1=
49, page
155 begins] Coules a/k/a Peter Coulopoulos d/b/a W=
estern
Scrap and Constance Coulopoulos, OEA
Cause 06-S-E-3683 . In Coulopoulos, IDEM sent its CO via certified mail to an address where Consta=
nce
Coulopoulos shared housing with her sister. 11.&=
nbsp; Both
12.&=
nbsp; Stewart
Recycling has not presented substantial evidence that Eric Stewart is
incompetent to receive service of process.=
Sandra Stewart’s affidavit does not include qualifications whi=
ch
would establish her as a medical expert on her brother’s
incompetency. See Ind. R. Evid. 702.<=
span
style=3D'mso-spacerun:yes'> Nor does her affidavit testimo=
ny
provide substantial evidence that Eric Stewart is incompetent for purposes =
of
receiving service of process.
Although Eric Stewart’s unfortunate accident in 2002 tragically
changed his life, the evidence before OEA shows that he is capable of signi=
ng
the certified mail documents in a legible script, performing manual labor,
driving and maintaining equipment, and other tasks in the yard. This evidence does not suffice to =
place
Eric Stewart’s competency in sufficient doubt for the purposes of
receiving service of process. Bellmore v. State, 602 N.E.2d 111, 117 ( [2010 OEA 1=
49, page
156 begins] 13.&=
nbsp; Despite
Eric Stewart’s unfortunate circumstances, Stewart Recycling has been =
able
to exercise its choice to change its registered agent since it deemed Eric
incompetent to act in this capacity in 2002. However, Stewart Recycling did not=
. No evidence was presented that IDE=
M did
not fulfill its service obligations in this case. In this case, undisputed substanti=
al
evidence shows that IDEM sent the CO, and the prior required documents, to
Stewart Recycling at the addresses it provided, at the address for its
registered agent, and that Stewart Recycling’s registered agent recei=
ved
the CO on July 6, 2010.
14.&=
nbsp; OEA
lacks subject matter jurisdiction over Respondent Stewart Recycling’s
petition for administrative review.
Substantial evidence shows that Respondent Stewart Recycling received
required notice on July 6, 2010, the date when the certified article domest=
ic
return receipt, or “green card”, for Stewart Recycling’s
address, and addressed to the same address and registered agent addressee as
Stewart Recycling provided to the Indiana Secretary of State. By substantial evidence, Respondent
Stewart Recycling’s July 29, 2010 filing of its Petition for
Administrative Review exceeded the mandatory deadline required in I.C. &sec=
t;
13-30-3-5 and in I.C. § 4-21.5-3-7(a). 15.&=
nbsp; OEA
does not have, and has no discretion to acquire, subject matter jurisdictio=
n of
a petition for administrative review filed after the deadlines mandated by
statute. OEA must dismiss the
Petition with prejudice. Walker Mfg. Co v. Dep’t of Local
Gov’t Finance, 772 N.=
E.2d
1, 4-6 (Ind. Tax 2002); In re: Objection to the Issuance of Notic=
e of
Decision, Murphy Oil USA, Inc., Seymour, Jackson County, Indiana, 2004 =
OEA
51, 55; Variance for Open Burning,
Herring, 2008 OEA 7; In re: Objection to Denial of Excess Liab=
ility
Trust Fund Claim, Frank Suverkup, Benzol Cleaning Co., Inc., 2004 OEA
48. As a matter of law, OEA lacks subject matter jurisdiction over this
cause. &=
nbsp; IT IS THEREFORE ORDERED that the
Petition for Administrative Review, Adjudicatory Hearing, and Stay of
Effectiveness filed by Petitioner Stewart Recycling, Inc., is hereby DIS=
MISSED, and the Indiana Department of
Environmental Management’s August 27, 2010 Motion to Dismiss is hereb=
y GRANTED. <=
/span>You
are further advised that, pursuant to I.C. § 4-21.5-5, et seq., this Final Order is subje=
ct to
judicial review. Pursuant to =
I.C.
§ 4-21.5-5, a Petition for Judicial Review of this Final Order is time=
ly
only if it is filed with a civil court of competent jurisdiction within thi=
rty
(30) days after the date this notice is served. Hon. Ma=
ry L.
Davidsen Chief
Environmental Law Judge [2010 O=
EA 149:
end of decision] 2010
OEA 149 in .doc format 2010
OEA 149 in .pdf formatId.
¶ 13.
On further review =
of the
events on July 10, 2010, Sandra Stewart clarified her recollection that the
unopened CO was in mail she picked up at “the office”. Dixon I.C. § 23-1-24-1; I.C. §
23-1-24-4 (1986). Provisions =
in
I.C. § 23-1-24, et seq., allow a corporation to change its
registered agent for circumstances appropriate to the particular
corporation. As a result, the
corporation may have service through a registered agent it deems qualified,
without requiring those outside the corporation to investigate the personal
circumstances of a corporate actor.
In this case, Stewart Recycling has been receiving correspondence fr=
om
IDEM about this matter since March, 2008.&=
nbsp;
The May 27, 2009 NOV and Agreed Order included terms that further ac=
tion
would be taken by IDEM if the matter was not resolved by Agreed Order. Stewart Recycling should reasonabl=
y have
expected further regulatory correspondence from IDEM. The parties do not allege any serv=
ice
deficiencies in IDEM’s prior correspondence, all served in the same
manner as the CO. IDEM reason=
ably
relied on the accuracy of the service method it used, which method complied
with state law concerning corporations.Final Order
IT IS SO ORDERED=
in
=
[1] The language of I.C. § 13-30-=
3-5
referencing twenty (20) days, was interpreted as requiring 19 days in Wayne Metal Products Company, Inc. v.
Indiana Department of Environmental Management, 721 N.E. 316 (Ind. Ct. =
App.
1999).
Commissioner, Indiana Department of Environmental Management,
Case No. 2009-18337-S,
v.
Stewart Recycling, Inc.,
2010 OEA 149, (10-S-E-4396)