Sekerez v. U.S. Reduction Co.

• Decision Date: 22 March 1976
• Docket Number: No. 3--774A114,3--774A114
• Citation: 344 N.E.2d 102,168 Ind.App. 526
• Parties: Zarko SEKEREZ, in the Name of the State of Indiana, Appellant, v. U.S. REDUCTION COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 102

344 N.E.2d 102

168 Ind.App. 526

Zarko SEKEREZ, in the Name of the State of Indiana, Appellant, v. U.S. REDUCTION COMPANY, Appellee.

No. 3--774A114.

Court of Appeals of Indiana, Third District.

March 22, 1976.

Rehearing Denied April 28, 1976.

Zarko Sekerez, pro se.

Joseph E. Costanza, East Chicago, for appellee; Murphy, McAtee, Murphy & Costanza, East Chicago, of counsel.

HOFFMAN, Judge.

Relying upon the provisions of certain statutes conferring jurisdiction and prescribing procedure in environmental suits, plaintiff-appellant Zarko Sekerez, on September 19, 1973, filed a complaint against defendant-appellee U.S. Reduction Co. (Reduction). The complaint generally sought temporary and permanent equitable relief and alleged, inter alia, that Reduction had, for a number of years, been discharging chemicals and matter into the atmosphere thereby giving rise to pollution and causing the impairment and destruction of the environment. Subsequently, Reduction filed a motion to dismiss for lack of jurisdiction over the subject-matter, alleging that Sekerez had failed to exhaust administrative remedies and had failed to comply with the procedural requirements set forth in IC 1971, 13--6--1--1 (Burns Code Ed.). The trial court thereafter granted Reduction's motion to dismiss. Following the overruling of his motion to correct errors, Sekerez perfected this appeal. Whether the trial court erred in granting Reduction's motion to dismiss represents the central issue to be considered on review. For this, we turn to an examination of IC 1971, 13--6--1--1, supra, and the supplementary provisions of IC 1971, 13--7--11--2(b) (Burns Code Ed.). IC 1971, 13--6--1--1, supra, provides, in pertinent part, as follows:

'(a) (A)ny citizen of the state of Indiana * * * may maintain an action for declaratory and equitable relief in the name of the state of Indiana against any * * * corporation, * * * for the protection of the environment of the state from significant pollution, impairment or destruction.

Any citizen, * * * as a condition precedent to maintaining such action, shall give notice in writing by registered or certified mail to the department of natural resources and the state board of health, or their successor agency in environmental affairs, and to the attorney-general of the state who shall promptly notify all state administrative agencies having jurisdiction over or control of the pollution, impairment, destruction, or protection of the environment for which relief is sought.

'(b) No action shall be maintained under this chapter (13--6--1--1--13--6--1--6) unless the administrative agency to whom such notice was given and having jurisdiction as set out in subsection (a) fails to investigate and conduct a hearing to determine whether or not the accused is a pollutor as defined by law or regulation. The complainant shall be joined as a party. If the agency fails to hold a hearing and make a final determination within one hundred eighty (180) days after receipt of notice by the attorney-general as provided in subsection (a), action may be maintained and such agency shall be joined as a party defendant.

'(c) If the administrative agency holds a hearing and makes a fnal determination within one hundred eighty (180) days, an appeal from its action may be taken in the manner prescribed by law.' (Emphasis added.)

IC 1971, 13--7--11--2(b), supra, further provides that,

'Any person who has filed a complaint pursuant to IC 1971, 13--6--1--1 to, and including, 13--6--1--6 may, if the board or agency has either (a) refused to proceed, or (b) one hundred eighty (180) days have elapsed from the filing of the complaint without a final determination, proceed against the alleged violator, and in such event the board or agency shall not be joined as a party: Provided, however, the board or agency may intervene in any such proceeding.' (Emphasis supplied.)

In his complaint, Sekerez specifically alleged that he had 'given notice in writing by certified mail to the Air Pollution Control Board of the State of Indiana and the Attorney General of the state as required by Public Law 182 (IC 1971, 13--6--1--1, supra).' A copy of a letter from the Attorney General to the Air Pollution Control Board was appended to the complaint as Exhibit 'A'. It disclosed that the Attorney General had received such notice on March 20, 1973. The complaint further alleged that '(t)he Air Pollution Control Board of the State of Indiana (had) failed to hold a hearing and make a final determination within one hundred eighty (180) days after receipt of notice by the Attorney General * * *.' (Emphasis added.) The complaint was filed after the expiration of the 180-day period.

In a memorandum in support of its motion to dismiss under Ind. Rules of Procedure, Trial Rule 12(B)(1), Reduction asserted that '(o)n March 20, 1973, the plaintiff filed Notice of Intent to Sue pursuant to Public Law 182 * * *. Thereafter, the Indiana Air Pollution Control Board conducted an investigation and hearing on the issue of whether the defendant was in compliance with the air pollution rules and regulations of the * * * Board. These administrative proceedings resulted in a 'binding and legally enforceable' Agreement, or Final Order being issued by the * * * Board within the relevant 180 day period. * * *.' Reduction concluded: 'Thus, it is clear that, contrary to the allegations of plaintiff's complaint, a hearing had been held and a final determination made within the relevant 180 day period.' Appearing in the record with appellee's motion to dismiss is a copy of a letter purportedly sent to Mr. Sekerez by Mr. Ralph C. Pickard, Technical Secretary of the Board. The letter, omitting formal parts, reads as follows:

'Re: Notice of Intent under Public Law 182

'This is to advise you that the Board, at its July 12, 1973, meeting, was informed as to the status of the staff's investigation of the air pollution problems for the three sources about which you filed Notices of Intent to sue based on Public Law 182.

'U.S. Reduction Company has filed with the East Chicago Department of Air Quality Control a compliance timetable which was accepted by the Department on June 29, 1973. The timetable calls for compliance by December 31, 1973. The staff deems this timetable adequate. The Board took no action at this time other than to request you to be so advised.

'Inland Steel Company and Youngstown Sheet & Tube Corporation are negotiating Agreed Orders with the Board. Drafts have been submitted by both companies but are not fully satisfactory and further discussions will he held.

'If you have any questions or wish to discuss this matter further, please write to the attention of Mr. Harry D. Williams, Director, Division of Air Pollution Control, at the above address; or contact him by phone at (317) 633--4273.'

This court, in Cooper et a. v. Co. Bd. of Review (1971), 150 Ind.App. 232, at 236--37, 276 N.E.2d 533, at 536, had occasion to discuss the proper usage and effect of a motion to dismiss for lack of jurisdiction over the subject-matter under Trial Rule 12(B)(1), supra. Therein, the court stated,

'Prior to the adoption of the Indiana Rules of Trial Procedure, effective January 1, 1970, the defense of lack of jurisdiction of the subject matter could be raised by demurrer, plea in abatement, or by motion to dismiss, depending upon the circumstances....