[2007 OEA 70, page 70 begins]
OFFICIAL SHORT CITATION NAME: When referring
to 2007 OEA 70, cite this case as
IDEM v. Heinold, 2007 OEA 70.
TOPICS:
owner
operator
underground storage tanks
de novo review
summary judgment
enforcement
13-11-2-150(a)
Lovold
in use
storage
statutory construction
PRESIDING JUDGE:
Gibbs
PARTY REPRESENTATIVES:
IDEM: April Lashbrook, Esq.
Respondent: Robert A. Welsh, Esq., Harris Welsh &
Lukmann
ORDER ISSUED:
May 18, 2007
INDEX CATEGORY:
Land
FURTHER CASE ACTIVITY:
IDEM filed for judicial review on June 15, 2007
[2007 OEA 70, page 71 begins]
STATE OF INDIANA ) BEFORE
THE INDIANA OFFICE OF
) ENVIRONMENTAL
ADJUDICATION
COUNTY OF MARION )
IN THE MATTER OF: )
)
COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT )
Complainant )
)
v. ) CAUSE
NO. 06-S-E-3709
)
MARIE E. HEINOLD )
2002-12004-S )
Respondent )
FINDINGS OF
FACT, CONCLUSIONS OF
LAW AND FINAL
ORDER
This matter having come before
the Court on the Motions for Summary Judgment filed by the Indiana Department
of Environmental Management (IDEM) and Marie Heinold (the Respondent) and
responsive pleadings thereto; and the Environmental Law Judge (“ELJ”) having
read and considered the petitions, motions, evidence, briefs, responses and
replies of the parties, now finds that judgment may be made upon the record.
The ELJ, being duly advised, now makes the following findings of fact and
conclusions of law and enters the following Final Order:
Findings of
Fact
- Raymond F. Heinold was the sole
owner of the property located at 13205 Morse Street, in Cedar Lake, Indiana (the “Facility”) from the 1970s until his death in December of 1985. (Respondent’s
Exhibit 1 - Affidavit of J. Keith Heinold
dated January 22, 2007)
- From the mid 1970s until the
death of Raymond F. Heinold in December of 1985, no gas station or related
business involving the use, storage or sale of any gasoline or
petroleum-based products or the use or operation of an underground storage
tank system occurred at the Facility. (Respondent’s Exhibit 1 - Affidavit
of J. Keith Heinold dated January 22, 2007)
[2007 OEA 70, page 72 begins]
- Marie Heinold, the Respondent
herein, inherited the Facility from Raymond F. Heinold and took title
thereto by the final decree order of the Porter Superior Court in the
Estate of Raymond F. Heinold on March 9, 1988. (Respondent’s Exhibit 2 -
Final Decree of Porter Superior Court, Estate No. 85-PSP-290 dated March
9, 1988).
- Subsequent to the death of
Raymond F. Heinold in December of 1985, no gas station or related business
involving the use, storage or sale of any gasoline or petroleum-based
products or the use or operation of an underground storage tank system
occurred at the Facility. (Respondent’s Exhibit 1 - Affidavit of J. Keith
Heinold dated January 22, 2007)
- Between August 9 and August 16,
1991, Hunts Excavating Sales and Service, Inc., at the direction of the
Respondent, removed six (6) underground storage tanks (USTs) from the
Facility. (Respondent’s Exhibit 5 - Hunts Excavating Sales and Service,
Inc. Tank Closure Worksheet dated August 19, 1991)
- Approximately 500 gallons of
waste liquid was removed from the USTs and disposed of. (IDEM’s Exhibit E
– Uniform Hazardous Waste Manifest)
- On March 31, 2003, IDEM issued
a Notice of Violation (the NOV) to Marie Heinold which set forth the
following alleged rules violations: (1) failure to properly report,
contain and respond to petroleum contamination under 327 IAC 2-6.1-7; (2)
failure to report known contamination within 24 hours under 329 IAC
9-4-1(1); and (3) failure to begin corrective action under 329 IAC
9-4-3(2)(A).
- On April 6, 2006, IDEM issued
its Notice and Order of the Commissioner of the Department of
Environmental Management (the CO) to Marie Heinold for failure to begin
corrective action under 329 IAC 9-4-3-(2)(A), which assessed a penalty and
ordered corrective action.
(Exhibit 14 - The Order of the Commissioner)
- Marie Heinold timely filed her
Petition for Administrative Review (Exhibit 15 - Respondent’s Petition for
Administrative Review)
- The IDEM and the Respondent
filed Motions for Summary Judgment on January 25, 2007. The IDEM filed
its response on February 14, 2007. The Respondent filed its response on
April 5, 2007.
The IDEM, thereafter, filed its reply on April 23, 2007. On May 1, 2007,
oral argument was heard on both Heinold’s and IDEM’s Motions for Summary
Judgment.
[2007 OEA 70, page 73 begins]
Conclusions of
Law
- The Office of Environmental
Adjudication (“OEA”) has jurisdiction over the decisions of the
Commissioner of the IDEM and the parties to the controversy pursuant to IC
4-21.5-7-3.
- 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.
- This office must apply a de
novo standard of review to this proceeding when determining the facts
at issue. Indiana Dept. of Natural Resources v. United Refuse
Co., Inc., 615 N.E.2d 100 (Ind. 1993). Findings of fact must be based
exclusively on the evidence presented to the ELJ, and deference to the
agency’s initial factual determination is not allowed. Id.;
I.C. 4-21.5-3-27(d). “De novo review” means that, “all 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).
- The OEA may enter judgment
for a party if it finds that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with 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 judgment as a matter of
law.” IC 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.
Evansville Vanderburgh Building Commission, et al., 725 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 issue 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, Inc., 668 N.E.2d 248, 249 (Ind. 1996).”
- The IDEM alleges that, as the
owner of the USTs, the Respondent is liable for violations of 329 IAC.
So, the first question that must be answered in the case is whether the
Respondent is the “owner” of the underground storage tanks.
The definition of “owner” is found in Ind. Code
§ 13-11-2-150(a) and reads as follows:
[2007 OEA 70, page
74 begins]
"Owner",
for purposes of IC 13-23 (except as provided in subsections (b) and (c))
means:
(1) for an underground
storage tank that:
(A) was:
(i) in
use on November 8, 1984; or
(ii) brought
into use after November 8, 1984;
for the storage, use, or dispensing of
regulated substances, a person who owns the underground storage tank; or
(B) is:
(i) in use before
November 8, 1984; but
(ii) no longer in
use on November 8, 1984;
a person who owned the tank
immediately before the discontinuation of the tank's use
- Pursuant to Indiana law, as
established by the Indiana Appellate Court in the case of Lovold
Company v. Galyan’s Brownsburg, Inc., Galyan’s Family Market, Inc., and
P&P Brownsburg Realty, Inc., 764 N.E.2d 281(Ind. App. 2002),
Heinold does not qualify as an “owner” under IC 13-11-2-150(a). The facts
in Lovold are as follows:
Galyan’s Brownsburg,
Inc. (GBI) acquired a parcel of real estate in 1963 which had a gas station and
underground storage tanks for fuel on it. In 1970 they leased the property to
the Almond Oil Company for ten years. During that time, Almond or its
sublessees operated the gas station with its pumps and USTs. In 1980, Almond
ceased operations, pumped out most of the gas from the USTs and removed the
dispensing pumps. Thereafter, the property was no longer used as a gas
station. It was used for other purposes, like a film developing shop. Three
years later, in 1983, GBI was formally liquidated and dissolved with the
Indiana Secretary of State issuing a “Certificate of Dissolution” on November
2, 1983. As a part of the liquidation, GBI sold the gas station property to
Galyan’s Family Market (Family Market). In November of 1984 Family Market sold
the real estate to P & P Brownsburg Reality, Inc. (P & P). In 1985 P
& P sold the real estate to Lovold. In 1995 it was discovered that
petroleum was leaking from the USTs at the site and Lovold spent $150,000.00 to
remediate the contamination.
In December of 1995,
Lovold filed suit against GBI, Family Market and P & P demanding
contribution for the $150,000.00 spent for clean-up costs. Family Market and P
& P filed summary judgment motions claiming entitlement to judgment because
they were not “owners or operators” of the USTs. The trial court granted
summary judgment on this basis to both Family Market and P & P. Lovold appealed
this ruling. The Appellate Court sustained the trial court’s summary judgment
ruling on the issue of “ownership” stating:
[2007 OEA 70, page
75 begins]
Additionally,
it is apparent under the Act that neither Family Market nor P & P were ever
“owners” for UST purposes. Specifically, neither corporation owned any of the
USTs “immediately before the discontinuation of the tank’s use” in accordance
with I. C. § 13-11-2-150(a). Again, the undisputed evidence reveals that
discontinuation of use occurred in 1980, before either of these corporations
was formed or acquired the site. Inasmuch as neither Family Market nor P &
P qualified as “owners” or “operators” of the USTs in accordance with the
statutory definitions, neither of them is subject to any contribution claim
liability under the Act. Thus, the trial court did not err in granting summary
judgment in their favor.
- The clear language of the
statute and the Lovold case, id. require a conclusion that
the Respondent is not the owner of the USTs at the Facility. The USTs
were taken out of use sometime in the 1970s, prior to November 8, 1984.
The Respondent took title to the Facility after 1985.
- The IDEM argues that the USTs
were “in use” because approximately 500 gallons of liquid were pumped out
during the removal of the tanks from the ground and because the USTs were
not closed in accordance with the rules found in 329 IAC 9-6. The IDEM’s
second argument is not persuasive as these rules were not adopted until
1992, a year after the tanks were removed. It is impossible for
the Respondent to comply with rules before they are adopted.
- The IDEM argues that the
presence of the liquid in the tanks in evidence that the tanks were being
used to store the material and were therefore, “in use”. However, the
word “storage” is not defined for purposes of Ind.
Code § 4-13-23. Therefore, it is proper to look to the common
definition of a word to determine its meaning. “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 language used.” Bourbon
Mini-Mart, Inc. v. Commissioner, Indiana Department of Environmental
Management, 806 N.E.2d 14, 20 (Ind.Ct.App. 2004).
- “Storage” is defined as a
“space or place for storing”. “Storing” means (1) to lay away or
accumulate as in, store vegetables for winter use, an organism that
absorbs and stores; (2) to furnish or supply especially: to stock against
a future time, as in, store a ship with provisions; (3) to place or leave
in a location (as a warehouse, library, or computer memory) for
preservation or later use or disposal. “MERRIAM-WEBSTER ONLINE, at
http://www.merriam-webster.com (May 11, 2007).
-
All of these definitions contemplate that
“storage” implies a later use for the substance, not abandonment, as seems
to be the case here. While the definition included storage for
disposal, there is no evidence that the Respondent was aware that this
substance was in the USTs. The IDEM did not submit any evidence that
this liquid was usable or was being stored for disposal. The mere
presence of the liquid in the USTs is not sufficient proof that the tanks
were in use.
[2007
OEA 70, page 76 begins]
- The IDEM also argues that the
Respondent has signed several documents as the “owner” of the underground
storage tanks. The IDEM does not argue either waiver or estoppel. ELJ
must determine what the facts of this case are. The Respondent’s mistaken
belief that she was the owner of the USTs is not conclusive as to this
fact.
- There is no genuine issue as to
a material fact and summary judgment is appropriate. As the Respondent is
not the owner of the USTs, she cannot be held liable for the violations of
Ind. Code § 13-23 nor 329 IAC 9. As this
issue is conclusive, no other issues will be addressed.
Final Order
AND THE COURT, being duly
advised, hereby ORDERS, ADJUDGES AND DECREES that the Respondent’s Motion
for Summary Judgment is GRANTED and the Indiana Department of
Environmental Management’s Motion for Summary Judgment is DENIED.
You are hereby further
notified that pursuant to provisions of Indiana Code § 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 IC
4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely only if
it is filed with a civil court of competent jurisdiction within thirty (30) days
after the date this notice is served.
IT IS SO ORDERED this 18th day
of May, 2007 in Indianapolis, IN.
Hon. Catherine
Gibbs
Environmental
Law Judge