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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has affirmed the denial of the city of Plymouth’s motion to dismiss an administrative action against it stemming from damages it caused to an underground natural gas pipeline. The appeals court found the Indiana Utility Regulatory Commission satisfied the statutory and administrative requirements concerning notice of the violation and recommended penalties.
While tearing down a building, the city damaged an underground pipeline. The city was found liable for not requesting a dig ticket and failing to provide notice of excavation as required by law. The Underground Plant Protection Advisory Committee reviewed the Indiana Pipeline Safety Division’s findings and recommended a penalty of employee training. The city admitted to the violations and did not dispute the penalty.
But then it filed a motion to dismiss the administrative action, arguing the notice sent by the commission was deficient because it was sent by the advisory committee. The letter was signed by attorney DeAnna Poon, a legal advisor to the committee and assistant general counsel to the commission.
The opening sentence said, “I write to you as legal counsel to the Indiana Underground Plant Protection Advisory Committee.” It was printed on commission letterhead. The city argued that although it received notice concerning the violation and penalty, notice was insufficient because the letter came from the advisory committee rather than from the commission, as it claims is required by Indiana Administrative Code.
“While we agree that the Advisory Committee and the Commission serve distinct roles, we conclude that with respect to the City’s claim, it is a distinction without a difference. In other words, Poon’s letter was sufficient to satisfy the notice requirements of 170 IAC 5-5-3(f) and Indiana Code Section 8-1-26-23(k). Both the presiding officers and the Commission found the letter sufficient based on (1) the face of the letter; and (2) the purpose of the notice requirement,” Judge Terry Crone wrote in City of Plymouth Street Department v. Indiana Utility Regulatory Commission, 93A02-1403-EX-162.
“… [T]he overarching purpose of the notice provisions is to ensure that the alleged violator is made aware of the nature of the violation, the recommended penalty, and the right to contest either of these. … [T]he City stipulated to the violation and the recommended penalty and now asks us to split hairs with respect to the identity of the messenger. We decline the invitation.”
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