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

Objection to the Denial of Excess Liability Trust Fund Claim,<= /o:p>

ELTF #200609504 / FID #15307, Former Smith Food Shop=

Fort Wayne, Allen County, <= st1:State w:st=3D"on">Indiana

2009 OEA 143, (09-F-J-4201)

[2009 OEA 1= 43, page 143 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2009 OEA 143 cite this case as

&nbs= p; Former Smith Food Shop, 2009 OEA 143.

Topics:

Excess Liability Trust Fund Claim

summary judgment

underground storage tanks

release

report

spill rule

closure report

substantial compliance

discovery

day

Presiding Environmental Law Judge= :

Catherine Gibbs

Party representatives: <= /o:p>

IDEM: = ; Julie Lang, Esq.

Petitioner: = ; Ginny Peterson, Esq.; Kightlinger & Gray LLP

Order issued:

November 13, 2009

Index category:

Land

Further case activity:

[none]

[2009 OEA 1= 43, page 144 begins]

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

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

COUNTY OF MARION &= nbsp; )<= /p>

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

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

OBJECTION TO THE DENIAL O= F EXCESS &= nbsp; )

LIABILITY TRUST FUND CLAI= M &= nbsp; &nbs= p; ) &= nbsp;

ELTF #200609504 / FID #15= 307 &= nbsp; &nbs= p; ) &= nbsp; CAUSE NO. 08-F-J-4201

FORMER SMITH FOOD SHOP &= nbsp; &nbs= p; )

FOR= T WAYNE, ALLEN COUNTY, INDIANA )

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND FINAL ORDER

This matter having come b= efore the Court on the Indiana Department of Environmental Management’s Mot= ion for Summary Judgment and Petitioner, Jacqueline Smith as Owner of Former Sm= ith Food Shop’s Motion for Summary Judgment, which pleadings are parts of= the Court’s record; and the presiding Environmental Law Judge (the ELJ), being duly advised and having read the pleadings, motions, responses, repli= es and evidence, now enters the following findings of fact, conclusions of law= and final order:

Findings of Fact

1.&n= bsp; Jacqueline Smith (the Petitioner) is the owner and operator of underground storage tanks located at Smith’s Food and Ser= vice Plaza, a/k/a Former Smith Food Shop, 3324 Spring Street, Fort Wayne, Indiana (the Site).

2.&n= bsp; On November 11, 2008, the Indiana Department of Environmental Management (the IDEM) issued a notification to the Petitioner denying her request for reimbursement from the Excess Liability Trust Fund = (the ELTF).

3.&n= bsp; The reason for the denial was that the Petitioner w= as not in substantial compliance with the regulations requiring that releases = from underground storage tanks (USTs) be reported to the IDEM. The notification stated, “Th= ough evidence of contamination was found earlier (samples from October 19, 2005), the release was not reported to IDEM until September 8, 2006.”

4.&n= bsp; Petitioner filed her petition for review of this no= tice on November 24, 2008.

5.&n= bsp; The IDEM and Petitioner both filed motions for summ= ary judgment on August 17, 2009.

6.&n= bsp; There were two (2) USTs at the Site. The USTs were removed on October 1= 8 and 19, 2005.

[2009 OEA 1= 43, page 145 begins]

7.&n= bsp; Sampling conducted as part of the UST closure indic= ated that there had been a release from the UST system[1] at the Site. BTEX [2] was detected in ground water above the reporting limit in the tank area. See Petitioner Jacqueline Smith as= Owner of Former Smith Food Shop’s Motion for Summary Judgment, Exhibit 3, Underground Petroleum S= torage Tank Environmental Closure Assessment (the Closure Report), Appendix B, pages 14 of 17. BTEX and TPH[3], above the reporting limits, were detected in soil in the dispenser region.<= span style=3D'mso-spacerun:yes'> See Petitioner Jacqueline Sm= ith as Owner of Former Smith Food Shop’s Motion for Summary Judgment, Exhibit 3, Underground Petroleum S= torage Tank Environmental Closure Assessment (the Closure Report), Appendix B, pages 4 and 5 of 14.

8.&n= bsp; The Closure Report was signed by the Petitioner on November 22, 2005.

9.&n= bsp; The cover letter from Petitioner’s consultant= to the IDEM, attached to the Closure Report, is dated December 1, 2005. The Closure Report was received by= the IDEM on December 14, 2005.

Conclusions of Law

<= span style=3D'mso-list:Ignore'>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.

<= span style=3D'mso-list:Ignore'>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.

<= span style=3D'mso-list:Ignore'>3.&n= bsp; This Court must apply a de novo standard of = review to this proceeding when determining the facts at issue. Indiana Dept. of Natural Resour= ces v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993), Indiana-Kentucky Electric Corporation v. Commissioner, Indiana Department of Environmental Management, 820 N.E.2d 771 (Ind. Ct. App. 2005). Findings of fact must be based exclusively on the evidence presented= to the ELJ, I.C. § 4-21.5-3-27(d). Deference to the agency’s initial determination is not allowed. Id.; “De novo review” means that:

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

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

[2009 OEA 1= 43, page 146 begins]

4. The OEA may enter judgment for a party if it finds that “the pleadings, depositions, answers to interrogatories, and admissions on file, together w= ith the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to judgm= ent as a matter of law.” I.= C. § 4-21.5-3-23. The moving party= bears the burden of establishing that summary judgment is appropriate. All facts and inferences must be construed in favor of the non-movant. Gibson v. Evans= ville Vanderburgh Building Commission, et al., 7= 25 N.E.2d 949 (Ind. Ct. App. 2000). All evidence must be construed in = favor of the opposing party, and all doubts as to the existence of a material iss= ue must be resolved against the moving party. City of North Vernon v. Jennings Northwest Regional Utilities, 829 N.E.2d 1, (Ind. 2005), Tibbs v. Huber, Hunt & Nichols, In= c., 668 N.E.2d 248, 249 (Ind. 1996).”

5. “The fact that both parties requested summary judgment does not alter our standa= rd of review. Instead, we must separately consider each motion to determine whether there is a genuine issue of material fact and whether the moving pa= rty is entitled to judgment as a matter of law.” Laudig v. Marion County Bd. of Voters Registration, 585 N.E= .2d 700, (Ind. Ct. App. 1992) at 703-704.

6. “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, 806 N.E.2d 14, 20 (Ind.Ct.App. 2004). The same rules that go= vern construction of statutes also govern construction of rules. Miller Brewing Co. v. Bartholome= w County Beverage Cos= ., Inc., 674 N.E.2d 193 (Ind. Ct. App. 1996).

7. An owner or operator who w= ishes to receive reimbursement from the ELTF must be in substantial compliance wi= th “this article” (I.C. § 13-23-8-4(a)(1)(A)) and “rules adopted u= nder this article” (I.C. § 13-23-8-4(a)(1)(B)). The reference to “this article” clearly means Chapter 13, Article 23 of the Indiana Code. Therefore, an owner or operator mu= st be in substantial compliance with any rule adopted under I.C. § 13-23 in order to be eligible for ELTF reimbursement.

8. 329 IAC 9 was promulgated by the Solid Waste Management Board under the authori= ty of Chapter 13, Article 23 of the Indiana Code. All owners and operators of USTs m= ust comply with the requirements promulgated in 329 IAC 9 (329 IAC 9-1-1(a)), regardless of whether they are eligible for reimbursement from the ELTF. Various provisions of 329 IAC 9 re= quire that the owner or operator of USTs report releases within twenty-four (24) hours of discovery. Which spe= cific reporting provision applies depends on the circumstances under which the release was discovered.

[2009 OEA 1= 43, page 147 begins]

<= span style=3D'mso-list:Ignore'>9.&n= bsp; 328 IAC 1-1-9 [4], in effect in during the time in question in this case, defines “substantial compliance” as follows:

<= span style=3D'mso-list:Ignore'>(a)&= nbsp; "Substantial compliance" means that, at the time a release was first discovered or confirmed:

<= span style=3D'mso-list:Ignore'>(1)&= nbsp; the owner or operator has met the requirements of I.C. § 13-23-8-4(a), with the exception of mi= nor violations of:

<= span style=3D'mso-list:Ignore'>(A)&= nbsp; statutory deadlines;

<= span style=3D'mso-list:Ignore'>(B)&= nbsp; &= nbsp; regulatory deadlines; or

<= span style=3D'mso-list:Ignore'>(C)&= nbsp; regulatory = requirements; that do not cause harm or threaten to harm human health or the environment;= and

<= span style=3D'mso-list:Ignore'>(2)&= nbsp; registration fees have been paid as required under I.C. § 13-23-12 and 328 IAC 1-3-3.=

<= span style=3D'mso-list:Ignore'>(b)&= nbsp; An owner or operator is not in substant= ial compliance if the release:

<= span style=3D'mso-list:Ignore'>(1)&= nbsp; Has not been reported within seven (7) days = of the date the release was required to be reported under the spill reporting = rule in effect at the time of the release.

<= span style=3D'mso-list:Ignore'>(2)&= nbsp; Harms public health or the environment and w= as not timely reported under the spill reporting rule applicable at the time of the release.

10. In or= der to be eligible for ELTF reimbursement, an owner or operator of a UST must be in substantial compliance with the rules.&nbs= p; The Underground Storage Tank Financial Assurance Board has defined “substantial compliance” with regard to the reporting requireme= nts contained in 329 IAC 9. In or= der to be in substantial compliance with the reporting requirements, an owner or operator must report the release within seven (7) days.

11. It is= clear from the rule that the critical fact in determining whether the owner or operator had substantially complied with release reporting is when the repo= rt was made. Whether the violati= on was minor or did not cause harm to human health or the environment is applicabl= e in determining whether the owner or operator was in substantial compliance with rules other than those mandating sp= ill reporting. The Petitioner’s argument that the rule is too vague is unpersuasive.

12. All o= f the rules governing reporting require that the owner or operator report a relea= se within 24 hours of discovery. Therefore, it is irrelevant = which particular rule applies in this matter as the critical fact is whether the release in this matter was reported within the appropriate time frame.

[2009 OEA 1= 43, page 148 begins]

13. In accordance with 329 IAC 1-1-9(b)(1), the appropriate time frame for purpose= s of determining ELTF eligibility is seven (7) days. Giving the term “day” = its ordinary meaning, the release had to be reported within seven (7) calendar days.

14. Neith= er the IDEM nor the Petitioner have provided any information about whether the Petitioner knew that a release had been discovered prior to her signature on the Closure Report. However, = it is known that she signed the notification that the USTs had been permanently closed on November 22, 2005. = The Closure Report, containing the sampling results showing that a release had occurred, was attached to this notification. Therefore, this is the date on whi= ch the Petitioner discovered the release.

15. The r= elease should have been reported within seven (7) calendar days or no later than November 29, 2005.

16. The C= losure Report was sent to the IDEM on December 1, 2005 and received on December 14, 2005. If the presiding ELJ as= sumes that the Closure Report could serve as notice to the IDEM that a release had occurred [5], the Closure Report was not filed with IDEM on or before November 29, 2005.<= span style=3D'mso-spacerun:yes'>

17. The Petitioner has presented no evidence that the release was reported on or be= fore November 29, 2005.

18. There= is no genuine issue of material fact. The Petitioner failed to substantially comply with the requirement to timely re= port a release at the Site. The IDEM’s determination that she is not eligible for reimbursement is proper.

19. This analysis is dispositive of the issues in this cause. The parties’ arguments about whether (1) the release date assigned by IDEM is proper; (2) the Petitioner= has waived any arguments; (3) 327 IAC 2-6-1 is applicable; or (4) the submissio= n of the Closure Report can be considered a “release report” are irrelevant and will not be addressed.

Final Order

AND THE COURT, being duly advised, hereby ORDERS, ADJUDG= ES AND DECREES that the Indiana Department of Environmental ManagementR= 17;s Motion for Summary Judgment is GRANTED. Petitioner, Jac= queline Smith as Owner of Former Smith Food Shop’s Motion for Summary Judgmen= t is DENIED. The Petition for Administrative Review is DISMISSED.

&nbs= p;

You are hereby 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 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 IC 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 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 13th day of November, 2009 in = Indianapolis, IN.

Hon. Catherine Gibbs

Environmental Law Judg= e

[2009 OEA 143: end of decision]

2009 OEA 143 in .doc format

2009 OEA 143 in .pdf format

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