Commissioner, Indiana Department of Environmental Management, Complainant
v.
Marie E. Heinold, 2002-12004-S, Respondent
2007 OEA 70 (06-S-E-3709)
[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
[2007 OEA 70, page 72 begins]
[2007 OEA 70, page 73 begins]
Conclusions of Law
[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
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.
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]
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
[2007 OEA 70: end of decision]
[1] J. Keith Heinold is Raymond and Marie’s son.
[2] The CO does not include the other 2 violations cited in the NOV. IDEM’s counsel, in oral argument, confirmed that these violations have been dismissed.
[3] The Respondent did not receive the IDEM’s Response. Therefore, by agreement of the parties and with the approval of the presiding Environmental Law Judge, the Respondent was granted an extension of time in which to file her response.
[4] The parties stipulated at oral argument that the Respondent does not meet the definition of an “operator” under Ind. Code § 13-11-2-148(d).
[2007 OEA 70: end of decision]
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