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OEA Decision Bars Use of Out-of-State Conviction as Basis of Action to Revoke Wastewater Operator's Certificate

In a January 9, 2008 decision (Commissioner, Indiana Department of Environmental Management v. Charles G. Hungler) the Indiana Office of Environmental Adjudication (OEA) granted summary judgment to the respondent, Mr. Charles Hungler, the holder of a wastewater treatment plant operator certificate issued by the IDEM. In doing so, the OEA barred IDEM's attempt to rely upon an out-of-state conviction arising under the federal Clean Water Act as the basis of the proposed revocation of Mr. Hungler's operator certificate.

The OEA found IC §13-18-11-8, the statute prescribing grounds for revocation of an operator's certificate, to be ambiguous with regard to whether evidence of out-of-state actions could be used to establish grounds for revocation. It was held by the OEA that, in the absence of express language in the statute authorizing use of evidence of out-of-state actions as a basis for revocation, the IDEM could not rely upon such evidence. This interpretation of the statute was found to be supported by several statutes, including the former "good character" statute and the habitual offender statute, among others, which expressly provided for the use of evidence of out-of-state actions in decision making by Indiana courts or agencies. The IDEM has sought judicial review of OEA's decision.

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