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City of Plymouth St. Dep't v. Indiana Utility Regulatory Commission

Court of Appeals of Indiana

September 26, 2014

CITY OF PLYMOUTH STREET DEPARTMENT, Appellant,
v.
INDIANA UTILITY REGULATORY COMMISSION, Appellee

APPEAL FROM THE INDIANA UTILITY REGULATORY COMMISSION. The Honorable James D. Atterholt, Chairman. The Honorable Carolene R. Mays and David E. Ziegner, Commissioners. The Honorable Jeffery A. Earl, Administrative Law Judge. Cause No. 44405.

ATTORNEY FOR APPELLANT: SEAN SURRISI, Plymouth City Attorney, Plymouth, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; DAVID LEE STEINER, Deputy Attorney General, Indianapolis, Indiana; ANDREW JAMES WELLS, Assistant General Counsel; BETH KROGEL ROADS, General Counsel, Indiana Utility Regulatory Commission, Indianapolis, Indiana.

CRONE, Judge. RILEY, J., and MATHIAS, J., concur.

OPINION

CRONE, Judge

Case Summary

The City of Plymouth (" City" ) appeals the Indiana Utility Regulatory Commission's (" Commission" ) denial of its motion to dismiss an administrative action against the City stemming from damage it caused to an underground natural gas pipeline. The City claims that the Commission failed to satisfy the statutory and administrative requirements concerning notice of the violation

Page 1018

and recommended penalties. Finding the notice to be sufficient, we affirm the Commission's denial of the motion to dismiss.

Facts and Procedural History

On April 12, 2013, while engaged in a demolition project, the City struck and damaged an underground natural gas pipeline. The Indiana Pipeline Safety Division (" Division" ) investigated and issued a finding of liability against the City for failing to request a dig ticket and failing to provide notice of excavation as required by law. The Underground Plant Protection Advisory Committee (" Advisory Committee" ) reviewed the Division's findings and recommended a penalty of employee training. The City admitted to the violations and did not dispute the recommended penalty.

Notwithstanding, the City filed a motion to dismiss the administrative action, claiming that the Commission had failed to satisfy its statutory and administrative obligation to provide the City notice of the Division's findings and the Advisory Committee's recommended penalties. The City asserted that notice was deficient because it was sent by the wrong entity, that is, the Advisory Committee. The notification letter was signed by attorney DeAnna L. Poon. The opening sentence reads, " I write to you as legal counsel to the Indiana Underground Plant Protection Advisory Committee." Appellant's App. at 29. Poon served as both legal advisor to the Advisory Committee and assistant general counsel to the Commission. The letter was printed on Commission letterhead and indicated Poon's dual positions below the signature line.

The Commission's presiding officers denied the City's motion to dismiss, finding in pertinent part,

The September 3, 2013 letter was written on Commission letterhead and was signed by Ms. Poon both in her capacity as legal advisor to the [A]dvisory [C]ommittee and as assistant general counsel to the [Commission]. Although the opening sentence incorrectly identified the capacity in which Ms. Poon acted in drafting the letter, that oversight does not defeat the efficacy of the letter. The notice requirement in Ind. Code § 8-1-26-23(k) and 170 IAC 5-5-3(f) exists to ensure that a person or entity accused of violating Ind. Code ch. 8-1-26 and facing a penalty recommended by the [A]dvisory [C]ommittee has notice of the recommended penalty and an opportunity to contest it in a hearing before the Commission. The September 3, 2013 letter clearly states that [the City] is accused of violating Ind. Code § 8-1-26-16(g)--failure to provide notice--and that the [A]dvisory [C]ommittee has recommended a penalty of training. The letter goes on to state that [the City] has the right to request a hearing before the Commission and provides instructions on how to request such a hearing. [The City] first contacted the ...

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