Indiana Stream Pollution Control Bd. v. U.S. Steel Corp.

• Decision Date: 24 July 1974
• Docket Number: No. 871S220,871S220
• Citation: 313 N.E.2d 693,262 Ind. 199
• Parties: INDIANA STREAM POLLUTION CONTROL BOARD, Appellant (Respondent below), v. UNITED STATES STEEL CORPORATION, Appellee (Petitioner below).
• Court: Indiana Supreme Court

Page 693

313 N.E.2d 693

262 Ind. 199

INDIANA STREAM POLLUTION CONTROL BOARD, Appellant (Respondent below), v. UNITED STATES STEEL CORPORATION, Appellee (Petitioner below).

No. 871S220.

Supreme Court of Indiana.

July 24, 1974.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellant

Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., McHie, Enslen & Moran, Hammond, for appellee.

PRENTICE, Justice.

This is an appeal from the order of the Lake Superior Court, Room 5 reversing an order of the Indiana Stream Pollution Control Board (respondent and appellant) against United States Steel Corporation (petitioner and appellee). It is pending upon the appellee's motion to dismiss and upon the merits, the motion to dismiss having heretofore been taken under advisement.

MOTION TO DISMISS DENIED

The case was determined on May 10, 1971 by an order of the trial court setting aside the order of the Board and remanding the cause to the Board for further proceedings. On May 19th, the Board gave notice of its intention to appeal, such notice having been given in accordance with the provisions of the Administrative Adjudication and Court Review Act, then Burns § 63--3019, the same now being IC 4--22--1--19, and followed on June 15, 1971 with a praecipe for a transcript of the entire record. Several extensions of time for filing the record were granted to the appellant by this Court, and it was ultimately filed on December 29, 1971. It included a motion to correct errors filed June 9, 1971 and the trial court's ruling thereon entered September 28, 1971.

It is the appellee's position that the appellant's notice of appeal was a nullity, and we agree in view of Indiana State Personnel Board v. Wilson (1971) 256 Ind. 674, 271 N.E.2d 448 and Indiana State Personnel Board v. Diggs (1971), 257 Ind. 156, 272 N.E.2d 868. We do not agree, however, that the appellant's failure to file a second praecipe for the record following the filing of and the ruling upon its motion to correct errors deprives this Court of jurisdiction. Appellate Rule 2(A) as amended November 30, 1972, requires that such praecipe be filed within thirty (30) days after the ruling upon the motion to correct errors. However, such time limitation was not in effect at the time of the remand order, the notice of appeal or the first motion to this Court for an extension of time within which to file the transcript. The notice of appeal and the motion for an extension of time were adequate for the purpose of notifying the appellee that an appeal would be taken. Had the transcript of the record been completed and certified prior to the ruling upon the motion to correct errors and the same consequently omitted therefrom, we would have an entirely different question, but such is not the case.

We perceive no problem either to the appellee or to this Court by reason of the unorthodox sequence of events. Accordingly, the appellee's motion to dismiss is now overruled.

APPEAL ON MERITS

The appellee owns and operates an integrated steel manufacturing facility along the banks of the Grand Calumet River and the shoreline of Lake Michigan, at Gary, Indiana. In the process of manufacturing steel, it uses great quantities of water from Lake Michigan. After use, such water is returned in part to Lake Michigan and in part to the river.

The appellant is an administrative board created by statute and charged with the responsibility of controlling and preventing the pollution of waters of this state with deleterious substances. Burns Ind.Stat.Code Ed. 13--1--3--1 et seq. (formerly Burns § 68--517 et seq.) Incidental to its duties and responsibilities, the Board is empowered and required to hold hearings to determine issues of fact relevant to its orders. With respect to such hearings, the Board is subject to the provisions of the Administrative Adjudication Act. Burns Ind.Stat.Code Ed. 4--22--1--1 et seq. (formerly Burns § 63--3001 et seq.).

In 1967, the Board promulgated regulations prescribing water quality standards for the waters of said lake and river and for the Indiana Harbor Canal, and in April of 1970, it decided to conduct a hearing to determine if U.S. Steel was discharging excessive quantities of impurities into the aforesaid river and lake and accordingly gave U.S. Steel notice of such hearing. The hearing was conducted by a single hearing member of the Board on May 26, 1970. Evidence was presented by both the Board and by U.S. Steel, following which the hearing member filed recommended findings of fact and a suggested order with the Board. Thereafter, U.S. Steel filed objections to such findings and order, and on November 17, 1970 the Board heard arguments thereon, rejected the objections and adopted said findings and issued said order, as follows:

'FINDINGS OF FACT

'1. That the Stream Pollution Control Board is an agency of the State of Indiana duly empowered to hold administrative hearings to determine whether or not stream pollution exists and to enter an order requiring the taking of such action as is indicated by the circumstances to cause the abatement of such condition.

'2. That the Stream Pollution Control Board has jurisdiction over both the subject matter and the parties to this action.

'3. That the Hearing Member was duly appointed according to law to conduct such hearings.

'4. That pursuant to the provisions of Chapter 365, Acts of 1947, and Chapter 214, Acts of 1943, due notice of an administrative hearing was served upon:

E. B. Speer, President

U.S. Steel Corporation

525 William Penn Place

Pittsburgh, Pennsylvania

Mr. Benjamin L. Rawlins

Secretary and Assistant General Counsel

U.S. Steel Corporation

71 Broadway

New York, New York

Mr. J. David Carr

General Superintendent

U.S. Steel Corporation

Gary Works

1 Broadway

Gary, Indiana

'5. That the U.S. Steel Corporation, Gary Steel Works, Gary, Indiana, has engaged in and is now engaging in acts of stream pollution.

'6. That U.S. Steel Corporation, Gary Steel Works, Gary, Indiana, has discharged wastewaters into the waters of the State of Indiana, to wit: the Grand Calumet River and Lake Michigan, so as to adversely affect said waters, and in violation of the Indiana Stream Pollution Control Law and the Board's regulations SPC 6, 7 and 8.

'7. That the waste treatment and control facilities that U.S. Steel Corporation, Gary Steel Works, has on sewers 1, 2, 2--A, 3, 3--A, 4, 5, 6, 7--A, 14, 17, L--2 and L--6 are not adequate.

'8. That in ordering the installation of proper facilities for the abatement of the pollution set out in the above findings, the Stream Pollution Control Board must give consideration to the time required to design, construct, and install such facilities and the Stream Pollution Control Board now finds that a reasonable time for accomplishing the above described matters is as follows:

1. Employ an engineer by October 1, 1970.

2. Submit preliminary plans by February 1, 1971.

3. Initiate final plans by April 1, 1971.

4. Submit final plans by July 1, 1971.

5. Arrange financing by August 1, 1971.

6. Initiate construction by September 1, 1971.

7. Complete construction and place in operation by December 31, 1972.'

Upon judicial review of the Board's final order, the Lake Superior Court set aside the final order of the Board and remanded the cause to the Board for further proceedings. The findings and order of the Superior Court are as follows:

'This matter coming on for hearing on the UNITED STATES STEEL CORPORATION'S Petition for Judicial Review of the final order of the Indiana Stream Pollution Control Board in Cause No. B--82, dated December 1, 1970, filed pursuant to the Administrative Adjudication and Court Review Act, Burns' Ind. Stat. §§ 63--3001 to 63--3030 inclusive, and the court having examined the transcript of pleadings, evidence, motions, requests and papers filed herein by the parties, and having heard the arguments of counsel, finds that:

'1. The Respondent, Indiana Stream Pollution Control Board, substantially complied with the notice requirements of the aforesaid Act, § 63--3006, by sending registered, returned receipt letters containing sufficiently specific notification of the hearing and its purpose to the requisite parties.

'2. The record of the administrative proceedings below lacks substantial, probative evidence to support the order of Respondent, and this Court is unable from an examination of the Findings alone to ascertain whether the order is sustained by the Findings, in that:

(a) It cannot be determined from the Findings what standards are to be achieved by the facilities contemplated by the plans referred to in Respondent's Finding 8.

(b) In view of the absence of such design standards, this court is unable to determine whether the proposed time schedule for plans and construction is reasonable, as required by Burns' Ind.Stat. § 68--525.

(c) The Findings are not stated with sufficient specificity to enable this court to review them intelligently.

'3. Respondent acted arbitrarily, capriciously, and abused its discretion in refusing to permit Petitioner to introduce additional evidence, which conduct on the part of Respondent violates Burns' Ind.Stat. §§ 63--3004 and 63--3025.

'4. The record fails to reveal that the petitioner was given adequate opportunity for a settlement of the controversy in same 63--3004 and 63--3025.

'IT IS HEREBY ORDERED that:

'1. The decision and determination by the Respondent, Indiana Stream Pollution Control Board, dated December 1, 1970, in Cause No. B--82 be set aside and the cause is remanded to the Respondent for further proceedings.

'2. On remand both the petitioner and the Respondent shall be afforded full opportunity to present additional evidence as required by law.

'3. Respondent shall afford Petitioner opportunity for the settlement or adjustment of all claims, controversies and issues as contemplated by Burn's Sec. 63--3004, 63--3025.'

Upon the issue of whether or not the order is...