Ind. Dept. Enviro. Manag. v. Const. Manag.

• Citation: 890 N.E.2d 107
• Decision Date: 18 July 2008
• Docket Number: No. 52A02-0711-CV-994.,52A02-0711-CV-994.
• Parties: THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellant-Defendant, v. CONSTRUCTION MANAGMENT ASSOCIATES, L.L.C., Hilltop Farms I.L.P., and Hilltop Farms II, L.P., Appellees-Plaintiffs, and Moss Well Drilling, Inc.,<SMALL><SUP>1</SUP></SMALL> Appellee-Defendant.
• Court: Court of Appeals of Indiana

890 N.E.2d 107

THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellant-Defendant, v. CONSTRUCTION MANAGMENT ASSOCIATES, L.L.C., Hilltop Farms I.L.P., and Hilltop Farms II, L.P., Appellees-Plaintiffs, and Moss Well Drilling, Inc.,¹ Appellee-Defendant.

No. 52A02-0711-CV-994.

Court of Appeals of Indiana.

July 18, 2008.

Steve Carter, Attorney General of Indiana, Sierra L. Cutts, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

OPINION

VAIDIK, Judge.

Case Summary

The Indiana Department of Environmental Management ("IDEM") is charged with enforcing the federal Safe Drinking Water Act ("SDWA") within Indiana. Pursuant to federal regulations, Indiana has enacted laws and regulations consistent with the SDWA to ensure safe drinking water in public water systems. Here, IDEM informed the Hilltop Farms Housing Complex ("Complex") that it maintained a public water system and was therefore required to comply with water testing requirements. IDEM's interpretation that separate wells unconnected to one another but each serving separate buildings in an apartment complex together constitute a public water system is reasonable. We therefore reverse the trial court that held otherwise.

Background

Congress passed the SDWA in 1974 to regulate the nation's public drinking water supply. States can be delegated primary enforcement responsibility, or primacy, for the SDWA within their borders by adopting and implementing drinking water regulations "no less stringent than the national primary drinking water regulations" and sufficient procedures for enforcement. 42 U.S.C.A. § 300g-2(a). After fulfilling these requirements, Indiana applied for primacy for the SDWA within Indiana, and the Environmental Protection Agency granted it. See Public Water System Supervision Program: Primacy Delegation for the State of Indiana, 56 Fed.Reg 24192-01 (May 29, 1991). Thereafter, IDEM became the agency within Indiana responsible for overseeing and enforcing the SDWA. Ind.Code § 13-13-5-1(1).

As part of Indiana's implementation of the SDWA, the Indiana Water Pollution Control Board promulgated 327 Indiana Administrative Code 8-2-1(60) ("327 I.A.C. 8-2-1(60)"), which provides the definition of a public water system. It states, in pertinent part:

"Public water system" means a public water supply for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen (15) service connections or regularly serves at least twenty-five (25) individuals daily at least sixty (60) days out of the year. The term includes any:

(A) collection, treatment, storage, and distribution facilities under control of the operator of such system, and used primarily in connection with such system; and

(B) collection or pretreatment storage facilities not under such control that are used primarily in connection with such system.

The case before us pertains to whether the water systems created during the development of the Complex fall within this definition of a public water system.

Construction Management Associates, L.L.C. ("CMA") constructed the Complex in Miami County, Indiana, in two phases. On February 14, 2000, CMA entered into a contract with Moss Well Drilling, Inc. ("Moss Well") to drill six separate wells to provide water for each of the six apartment buildings of Hilltop Farms I, L.P. ("Hilltop Farms I"). On May 20, 2003, CMA entered into another contract with Moss Well to drill six separate wells to provide water for each of the six apartment buildings of Hilltop Farms II, L.P. ("Hilltop Farms II"). Each well services one apartment building. Each apartment building contains eight apartments, with a total of forty-eight apartments in each phase. Hilltop Farms I and II are located side by side, separated only by a roadway.

In a letter dated April 1, 2005, IDEM informed the Complex that it maintained a public water system, assigned the Complex a Public Water Supply Identification ("PWSID") number, and notified the Complex that it was thus required to comply with water testing requirements. Appellant's App. p. 61. Although IDEM initially sought to treat the Complex as maintaining one public water system, it now treats Hilltop Farms I and II as maintaining two public water systems in response to a request from Hilltop Farms I and II.² Tr. p. 4-5. On April 14, 2006, CMA and Hilltop Farms I and II filed a Complaint and Action for Declaratory Judgment against IDEM and Moss Well.³ Regarding IDEM, the complaint and declaratory judgment action requested that the trial court find that the Complex did not maintain a public water system and enjoin IDEM from requiring the Complex to conduct water testing.⁴ In turn, IDEM filed a motion for partial summary judgment claiming that six wells unconnected to one another but designed to serve six buildings of a phase of the Complex constitute a public water system. On May 9, 2007, the trial court denied IDEM's motion, observing that IDEM had adopted "additional standards" without going through the proper rulemaking channels, Appellant's App. p. 327, and finding that "whether 25 or more persons were served by any of the wells for at least 60 days" was an issue of material fact, id. at 328. IDEM subsequently asked the trial court to reconsider its ruling, and on September 17, 2007, the trial court denied IDEM's motion concluding that the Complex has twelve wells serving twelve buildings and that none of the wells have at least fifteen service connections and none of the buildings have at least twenty-five people. In other words, the trial court considered each building and well separately as if the buildings were not part of a phase of an apartment complex. The trial court then reasoned that IDEM had given no fair warning of its "additional standards" requiring wells in a phase of an apartment complex to be considered as one public water system. As such, the trial court concluded that the "additional standards" were given the force and effect of law without going through the rulemaking process. IDEM filed a motion to certify the trial court's order for interlocutory appeal pursuant to Indiana Appellate Rule 14(B), which the trial court granted. This Court subsequently accepted jurisdiction over this appeal.

Discussion and Decision

We initially note that CMA and Hilltop Farms I and II have failed to submit an appellees' brief. When an appellee does not file a brief, we have no obligation to undertake the burden of developing an argument on its behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). If the appellant's brief presents a case of prima facie error, we will reverse the trial court's judgment. Id. (citing Gibson v. City of Indianapolis, 242 Ind. 447, 448, 179 N.E.2d 291, 292 (1962)). Prima facie error in this context is defined as, "at first sight, on first appearance, or on the face of it." Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999) (quoting Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985)). If the appellant is unable to meet this burden, we will affirm. Trinity Homes, 848 N.E.2d at 1068.

IDEM raises two issues on appeal. First, IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court failed to defer to IDEM's reasonable interpretation of a rule it is charged with enforcing. Second, IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court erroneously concluded that IDEM had adopted "additional standards" to determine what constitutes a public water system.

When reviewing a grant or denial of summary judgment, the standard of review is the same as the standard governing summary judgment in the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind.2006) (citing Ind. Univ. Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind.2000)). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Bushong v. Williamson, 790 N.E.2d 467, 474 (Ind.2003). Summary judgment should be granted only if the evidence designated pursuant to Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. Bloom, 847 N.E.2d at 180 (citing Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind.2005), reh'g denied). The party appealing a summary judgment ruling has the burden of persuading this Court that the grant or denial of summary judgment was erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). All evidence must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Bloom, 847 N.E.2d at 180 (citing Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996)). Questions of law, however, are reviewed de novo. DAP, Inc. v. Akaiwa, 872 N.E.2d 1098, 1100-01 (Ind.Ct.App.2007) (citing Tippecanoe County v. Ind. Mfrs. Ass'n, 784 N.E.2d 463, 465 (Ind.2003)).

I. Reasonable Interpretation

IDEM contends that the trial court erred in denying its motion for partial summary judgment because the trial court failed to defer to IDEM's reasonable interpretation of 327 I.A.C. 8-2-1(60), a rule IDEM is charged with enforcing. We agree.

We treat regulations in the Indiana Administrative Code in the same manner as statutes when asked to interpret a provision or term on appeal. See State Bd. of Tax Comm'rs v. Two Mkt. Square Assocs. Ltd. P'ship, 679 N.E.2d 882, 885 (Ind.1997); see also Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 866 (Ind.Ct.App.2006). Statutory interpretation is a question of law...