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Office of Environmental Adjudication Update
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Hon. Catherine Gibbs, Environmental Law Judge

Discovery Before the OEA

The OEA has dealt with several discovery issues in the past years. This article will discuss some of these issues. As these orders were all non-final orders, they are not posted on the OEA’s web site. The OEA can provide copies of any of these orders to anyone who requests them.

Ind. Trial Rule 28(F) allows parties to an adjudicatory hearing before an administrative agency to use the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure. Further, under 315 IAC 1-3-1(b)(18), the presiding Environmental Law Judge (the “ELJ”) may apply the Indiana Rules of Trial Procedure, including those rules dealing with discovery, when it would not be inconsistent with the Administrative Orders and Procedures Act (“AOPA”) (Ind. Code (I.C.) §4-21.5-3) or with the remaining rules in Title 315 of the Indiana Administrative Code.

Government deliberative process privilege: This privilege is set out in Government Suppliers Consolidating Services, Inc. v. Bayh, 133 F.R.D. 531 and applied in IDEM v. Hartford Iron & Metal, OEA Cause No. 07-S-E-3961. In Hartford Iron, the Respondent filed a motion to compel the production of various emails from IDEM staff. These emails were between IDEM staff. One of the arguments made was that the government deliberative process privilege only protects communications between executive or management staff and does not extend to communications between lower level staff. The ELJ rejected this contention based on Newman v. Bernstein 766 N.E.2d 8 (Ind. Ct. App. 2002).

In another case in which Govt. Suppliers was applied, Objection to the Denial of Excess Liability Trust Fund Claim, ELTF No. 200705054/FID No. 24932, Pilot Travel Centers, Cause No. 08-F-J-4177, the Petitioner moved for an order compelling the production of emails. This included emails between various sections in IDEM and with the Department of Natural Resources. The ELJ concluded that the privilege extended to other sections of the IDEM and to the DNR.

Order to compel entry: In a case involving a third party challenge to the issuance of a NPDES permit to a confined animal feeding operation, the Petitioners moved for an order allowing them to enter onto the property designated for land application. The ELJ granted the motion for purposes of inspection and sampling, but restricted this to necessary persons and allowed the IDEM and the permittee to have representatives present.

Subpoena duces tecum: In IDEM v. HSKM f/k/a Hoskins Manufacturing Company, Cause No. 03-S-E-3153, the IDEM issued subpoenas duces tecum to two non-parties. These non-parties were insurers for the Respondent and the IDEM sought all documents relating to the Respondent. The non-parties filed a motion to quash the subpoenas. The ELJ granted the motion and concluded that (1) the OEA does not have the authority to compel the production of documents from a non-party located out of Indiana, pursuant to Forbes v. State, 793 N.E.2d 1112 (Ind. App. 2003); and (2) that the subpoenas were overly broad.

Consulting witness (T.R. 26(B)(4)(b)): In Objection to Issuance of No Further Action Determination for State Cleanup Site No. 000-00-208, City of Indianapolis, Cause No. 12-S-J-4635, the Petitioner objected to the issuance of a NFA letter to the City of Indianapolis for a site that was being addressed in State Cleanup. The Petitioner is the former owner of a property adjacent to the State Cleanup site. The Petitioner deposed the City’s consultant. This consultant was also the consultant for another company, who happened to be the current owner of the adjacent site. The current owner was not a party to this action. In the course of the clean-up at the site, the consultant submitted several reports to the IDEM for both the City and the current owner. These reports became part of the IDEM’s public record. The current owner objected, during the deposition, to questions regarding its consultant’s expert opinion, claiming that the consultant could not be compelled to testify under T.R. 26(B)(4)(b). The Petitioner moved to compel the consultant to answer the questions. The current owner opposed this motion. The ELJ concluded, initially, that the consultant was not an expert. The current owner moved for reconsideration and produced evidence that convinced the ELJ to conclude that the consultant was an expert. However, the ELJ concluded that the privilege had been waived because of the production of the reports.
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