MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 04 2020, 5:37 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Carrie G. Doehrmann                                      Donn H. Wray
Alexander P. Will                                        Glenn D. Bowman
Maggie L. Smith                                          Marc A. Menkveld
Indianapolis, Indiana                                    Indianapolis, Indiana

Curtis T. Hill, Jr.
Attorney General of Indiana

Frances Barrow
Deputy Attorney General
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

The City of Indianapolis, and                            March 4, 2020
Indiana Department of                                    Court of Appeals Case No.
Environmental Management,                                18A-PL-3055
Appellants-Respondents,                                  Appeal from the Marion Superior
                                                         Court
        v.                                               The Honorable Patrick J. Dietrick,
                                                         Judge
Moran Electric Service, Inc.,                            Trial Court Cause No.
                                                         49D12-1705-PL-17993


Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                  Page 1 of 32
      Appellee-Petitioner




      Altice, Judge.


                                             Case Summary
[1]   The City of Indianapolis (the City) took possession of a certain contaminated

      property and engaged in significant remediation and monitoring activities.

      Believing that the contaminated site had been sufficiently remediated, the City

      petitioned the Indiana Department of Environmental Management (IDEM) for

      issuance of a No Further Action letter (NFA Letter). After assessing the site,

      IDEM concluded that no further remediation was necessary and therefore

      issued an NFA Letter to the City.


[2]   Moran Electric Service, Inc. (Moran), once an owner of property adjacent to

      the contaminated site, challenged IDEM’s issuance of the NFA Letter by filing

      objections with and seeking administrative review by the Office of

      Environmental Adjudication (OEA). Moran argued that IDEM improperly

      issued the NFA Letter because the remedial goals established for the site had

      not been met. The OEA disagreed, finding that IDEM’s issuance of the NFA

      Letter was proper. Moran timely sought judicial review of the OEA’s
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 2 of 32
      decisions. The trial court reversed, finding that IDEM’s issuance of the NFA

      Letter, and the OEA’s review thereof, was not based on proper remediation

      standards. The City and IDEM now appeal, presenting several issues for our

      review, which we consolidate and restate as: Did the trial court err in finding

      that IDEM and the OEA used incorrect remediation standards in determining

      that the contaminated site had been sufficiently remediated?


[3]   We reverse.


                                     Facts & Procedural History
                                                     Background

[4]   Ertel Manufacturing Corporation (Ertel) operated a 250,000 square foot

      manufacturing facility on three parcels of land with frontage along what is now

      Andrew J. Brown Drive in Indianapolis (the Ertel Site).1 Ertel’s manufacturing

      process led to the release of hazardous substances, including petroleum and

      chlorinated solvents such as trichloroethylene (TCE) and tetrachloroethylene

      (PCE), into the soil and groundwater at the Ertel Site. Around 2001,

      operations at the facility ceased, and the Ertel Site was abandoned.


[5]   Moran once operated on a site located directly south of the Ertel Site (the

      Moran Site). Moran purchased, stored, used, and disposed of chlorinated




      1
       The three parcels of land comprising the Ertel Site form a “P-shape.” Directly contiguous to the south and
      east of the Ertel Site (i.e., sitting inside the “crook” of the P-shaped parcels) is a parcel of land formerly
      owned by Zimmer Paper Products, Inc. (the Zimmer Parcel).

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                     Page 3 of 32
      solvents—i.e., TCE and PCE—in its operations until its plant closure sometime

      in 1995 or 1996. IDEM believed that contamination at the Moran Site resulted

      “predominantly from the sources at the Moran [S]ite itself”, but given the

      groundwater flow direction, the Moran Site was also “impacted by

      contamination emanating from the [Ertel] Site.” Joint Appendix of Appellants Vol.

      VIII at 57; Joint Appendix of Appellants Vol. XII at 3. On October 4, 2005, Major

      Tool and Machine, Inc. (Major Tool) purchased the Moran Site at a tax sale for

      the expansion of its operations.


[6]   Around 2005, IDEM and the Environmental Protection Agency (EPA) started

      an investigation into contamination at the Ertel Site. The EPA funded the

      initial removal of several potential sources of hazardous substances as well as

      the initial investigation into the subsurface contamination. The City ultimately

      acquired the Ertel Site in 2007 at a tax sale.2 Over the course of the next several

      years, the City performed extensive environmental assessments and

      remediation activities at the Ertel Site, including the removal and excavation of

      37,000 tons of contaminated soil, demolition of certain structures, and

      groundwater and vapor intrusion monitoring.


[7]   In September 2007, the City and Major Tool entered into an agreement with

      respect to the Ertel Site. Major Tool leased the Ertel Site for a period of five




      2
        The City’s “most immediate motivation” in procuring the Ertel Site was to address the environmental
      issues. Joint Appendix of Appellants Vol. IX at 549. The City was also aware that Major Tool had interest in
      the Ertel Site for a proposed expansion of its facility “if the environmental issues could be dealt with.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                       Page 4 of 32
      years and constructed a manufacturing facility on the footprint of the former

      Ertel facility. By the end of the lease term, the City was obligated to secure an

      NFA Letter for the Ertel Site in order to trigger Major Tool’s obligation to

      purchase the Ertel Site from the City.


                                                The Agreed Order

[8]   In 2008 and 2010, the City and IDEM, respectively, filed separate lawsuits

      against Ertel asserting claims under Ind. Code § 13-25-4-10 3 and seeking a

      declaratory judgment that Ertel was responsible for past and future costs

      associated with the cleanup of the hazardous substances at or flowing from the

      Ertel Site. In July 2011, IDEM, the City, Ertel, and Ertel’s insurance

      companies entered into a single Settlement Agreement and Agreed Order (the

      Agreed Order) for both actions and submitted such to the trial court. In

      October 2011, the trial court approved the Agreed Order.


[9]   The Agreed Order provided that the mutual objectives of the parties were:


               (a) to protect public health and welfare and the environment at
               and around the [Ertel] Site; (b) for Ertel and [the insurance
               companies] on Ertel’s behalf to make a cash payment to resolve
               all past, present or future Claims or liabilities of any kind related
               to the [Ertel] Site regarding releases of Contamination, whether
               known or unknown, alleged to have occurred at or emanate from
               the [Ertel] Site; (c) to provide a complete release, covenant not to




      3
        I.C. § 13-25-4-10(a) states that the commissioner “may proceed in the appropriate court to recover costs
      and damages [related to the release or threatened release of hazardous substances] for which a responsible
      person is liable to the state.”

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                    Page 5 of 32
                  sue, contribution protection[ 4] and finality to Respondents and
                  [the insurance companies] for all past, current and future
                  remedial or removal actions at or in connection with the [Ertel]
                  Site regarding Contamination, whether known or unknown,
                  alleged to have occurred at or emanate from the [Ertel] Site; and
                  (d) to provide funds to allow IDEM and the City to recover a
                  portion of past costs in connection with remedial activities at the
                  [Ertel] Site, and for IDEM to conduct and complete future
                  Response Actions at or in connection with the [Ertel] Site and
                  close the [Ertel] Site, including any off-Site areas of
                  Contamination, as set forth herein.


       Joint Appendix of Appellants Vol. II at 94. As to reimbursement for costs incurred,

       the Agreed Order provided that Ertel’s insurance companies would pay

       $4,000,000 to the City and an additional $1,000,000 to an IDEM escrow

       account, with $140,000 of this amount allocated for past costs incurred by

       IDEM and $860,000 allocated for any future remediation costs incurred by

       IDEM to obtain “No Further Action status” for the Ertel Site. Id. at 95. Any

       funds remaining in the IDEM escrow account after IDEM issued an NFA

       Letter were to be turned over to the City.


[10]   The Agreed Order set out the remedial goals for the Ertel Site as:


                  (1) reducing the on-site Contaminants of concern to industrial
                  default RISC[ 5] cleanup levels; and (2) reducing Contaminants of
                  concern flowing off-site in the groundwater to at or below




       4
           See I.C. § 13-25-4-27(b) and CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2).
       5
           RISC is an acronym “Risk Integrated System of Closure.” Joint Appendix of Appellants Vol. XXVII at 12.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                      Page 6 of 32
                 MCLs[ 6] or to a site specific risk level, as defined by IDEM RISC
                 guidance, to be protective of human health and the environment
                 and of the City’s water supply;


                                                       ***


                 d. When the remedial goals have been met, IDEM will issue a[n
                 NFA] Letter to [the City and Ertel].


       Id. at 97-98. The ultimate goal was to obtain a notice of closure from IDEM,

       which refers to the end result of remediation where IDEM issues written

       recognition—typically through an NFA Letter—stating that a party has

       demonstrated attainment of specific remedial or screening objectives for

       contamination on a property such that it no longer poses a risk to human health

       or the environment.


                                                       RISC

[11]   RISC was a non-rule policy document authorized by Ind. Code § 13-14-1-11.5

       that “provide[d] a systematic approach for consistently and rationally

       implementing the laws and rules that govern site investigation and closure.”

       Joint Appendix of Appellants Vol. XXVII at 12. “The primary goal of RISC [wa]s

       to ensure that risks to human health and the environment [we]re reduced to a

       negligible level.” Id. RISC was adopted by IDEM in 1996 and amended in

       1999 and again in 2001. Under RISC, there were two methods employed to




       6
           MCLs means “maximum contaminant levels” set by the Safe Drinking Water Act, 40 CFR 141.2.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020              Page 7 of 32
       obtain closure of a contaminated site: default closure and nondefault closure.

       The default method was basically a “one size fits all” approach where closure

       occurred automatically when the level of contaminants present in soil and

       groundwater were reduced below standardized industry default closure levels

       (IDCLs). 7 Joint Appendix of Appellants Vol. XIII at 131.


[12]   Although RISC focused primarily on the default closure process, IDEM

       recognized that such approach did not fit all situations. In such cases, parties

       could follow the nondefault closure process under RISC, which “include[d] any

       pertinent procedure with a valid technical or policy basis . . . not listed as a

       default IDEM preference.” Id. The nondefault closure method was considered

       “neither superior nor inferior to the default approach;” it simply provided a

       greater degree of flexibility than the default closure method because closure

       details could be site-specific. Id. One such nondefault method provided for the

       use of a potential exposure concentration (PEC) 8 calculation for comparing

       sample data with IDCLs. Site closure could be obtained if it could be shown

       that PECs for a contaminated site were less than IDCLs.




       7
         IDCLs are specific numeric levels of contaminants in soil and groundwater at industrial sites that are used
       to determine when an environmental cleanup has achieved a level of adequately protecting human health
       and the environment.
       8
         A PEC is the “constituent concentration in surface and subsurface soil that is representative of the site mean
       (based on random sampling), or the highest concentrations at the sample locations (based on judgmental
       sampling).” Addendum at 7.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                      Page 8 of 32
                                              Change in the Law

[13]   During the 2009 legislative session, House Enrolled Act 1162 (HEA 1162)

       amended several statutes regulating environmental remediation projects in

       Indiana to change the remediation objectives that IDEM must consider. The

       purpose of the amendments was to shift the focus for closure to risk-based

       objectives. The changes went into effect on July 1, 2009. I.C. § 13-25-5-8.5

       now provides:


               (a) A voluntary remediation work plan must specify the
               remediation objectives for the site. Subsections (b) through (e)
               apply to a site regardless of whether the site was entered into the
               voluntary remediation program before July 1, 2009, or after June
               30, 2009.

               (b) The remediation objectives for each hazardous substance and
               any petroleum on the site shall be based on:

                        (1) background levels of hazardous substances and
                        petroleum that occur naturally on the site; or

                        (2) an assessment of the risks pursuant to subsection (d)
                        posed by the hazardous substance or petroleum presently
                        found on the site taking into consideration the following:

                                (A) Expected future use of the site.

                                (B) Measurable risks to human health, natural
                                resources, or the environment based on the:

                                         (i) activities that take place; and

                                         (ii) environmental impact;

                                on the site.

               (c) If the:
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 9 of 32
                 (1) nature and extent of the hazardous substance or
                 petroleum is adequately characterized under the voluntary
                 remediation work plan, considering the remediation
                 objectives developed under this section; and

                 (2) the level of the hazardous substance or petroleum is
                 demonstrated to be below:

                         (A) background levels of the hazardous substances
                         and petroleum that occur naturally on the site; or

                         (B) the risk based levels developed under subsection
                         (d);

                 additional action is not necessary to protect human health
                 or the environment.

        (d) Risk based remediation objectives shall be based on one (1) of
        the following:

                 (1) Levels of hazardous substances and petroleum
                 calculated by the department using standard equations and
                 default values for particular hazardous substances or
                 petroleum.

                 (2) Levels of hazardous substances and petroleum
                 calculated using site specific data for the default values in
                 the department’s standard equations.

                 (3) Levels of hazardous substances and petroleum
                 developed based on site specific risk assessments that take
                 into account site specific factors, including remedial
                 measures, restrictive covenants, and environmental
                 restrictive ordinances that:

                         (A) manage risk; and

                         (B) control completed or potential exposure
                         pathways.


Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 10 of 32
               (e) The department shall consider and give effect to restrictive
               covenants and environmental restrictive ordinances in evaluating
               risk based remediation proposals.


[14]   On December 7, 2009, IDEM issued an “Interim Implementation Document”

       noting that the statutory amendments changed the remediation objectives

       IDEM is required to consider. IDEM interpreted the amendments to mean that

       IDEM is required to consider risk-based remediation objectives that manage

       risk and control completed or potential exposure pathways. IDEM stated that

       the objective of its risk-based policy is “to assure that all sites are mitigated

       through risk assessment procedures to assure no unacceptable risk or hazard to

       human health or the environment, or through risk management measures to

       assure no unacceptable exposures.” Joint Appendix of Appellants Vol. XIV at 168

       (emphasis in original). IDEM explained that it was working on a revised

       technical guide but, noting such “will take some time,” directed IDEM staff to

       use the Interim Implementation Document together with the RISC guidance

       document. Id. at 165.


                                                       RCG

[15]   In response to HEA 1162, IDEM substantially revised RISC and renamed it the

       Remediation Closure Guide (RCG). The RCG went into effect in March 2012.

       Like RISC, the RCG is a non-rule, policy document that does not have the

       force of law but is intended solely as guidance. Indeed, it expressly provides

       that “if it conflicts with . . . rules or laws, the rules or laws shall control.” Joint

       Appendix of Appellants Vol. XIII at 184.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 11 of 32
[16]   The RCG set out several approaches to investigation and risk-based closure of

       contaminated sites. 9 The RCG established that “[t]he objective of a risk-based

       approach is to define an environmental concentration that corresponds to an

       acceptable level of risk to persons who may undergo exposure to a particular

       chemical.” Id. at 196. An important consideration under the risk-based

       approach is whether exposure pathways may be controlled by risk management

       practices, including such things as vapor mitigation systems or environmental

       restrictive covenants (ERCs).


                                             Soil Contamination

[17]   In 2008, before the passage of HEA 1162 and while RISC remained the

       technical guide for closure, Quality Environmental Professionals, Inc. (QEPI)

       submitted a Soil Remediation Completion Report (SRCR) to the City. The

       report noted that the City excavated nearly 37,000 tons of soil to a depth of

       nearly seventeen feet below ground surface and acknowledged that even after

       such excavation, impacts of PCE and TCE were still present at discrete

       locations at concentrations exceeding IDCLs. Because of such, QEPI

       calculated PEC values for the Ertel Site and determined that such values were

       below RISC IDCLs and therefore, the Ertel Site “meets the requirements for

       surface and subsurface soil closure under RISC default guidance.” Joint

       Appendix of Appellants Vol. XVII at 176. QEPI also opined that given the




       9
         A companion manual, the Remediation Program Guide (RPG), also provides guidance related to specific
       regulatory programs. The RPG was not submitted during the proceedings before the OEA.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020             Page 12 of 32
       location and redevelopment nature of the property, the “residual impacts do not

       pose an ongoing threat to the property.” Id. at 186. The City submitted the

       SRCR to IDEM in 2008.


[18]   An IDEM project manager who oversaw the soil remediation at the Ertel Site

       testified that after he reviewed the SRCR, he believed the soil at the Ertel Site

       had been adequately remediated. Further, a geologist for IDEM reviewed the

       SRCR and concluded that the PEC calculations for soil contaminants of

       concern were accurate and verified that such calculations were below respective

       RISC IDCLs. IDEM issued a comment letter on September 16, 2008, noting as

       much. IDEM further commented that the excavated areas of the Ertel Site

       were to be covered by concrete. Although acknowledging that residual soil

       contamination existed on the Ertel Site, IDEM concluded that such “does not

       present a risk of exposure at this time.” Joint Appendix of Appellants Vol. XX at

       67. After receiving IDEM’s comment letter, the City moved forward “under

       the impression” that soil remediation was complete. Joint Appendix of Appellants

       Vol. VIII a 122. IDEM likewise moved forward without further concern for soil

       contamination.


                                       Groundwater Contamination

[19]   Following the soil excavation, the City installed permanent wells and

       implemented groundwater monitoring at the Ertel Site during the first quarter

       of 2008 and continued with such on a quarterly basis through 2009. The City

       also conducted two additional sampling events in July and October 2010. At


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 13 of 32
       IDEM’s request, the City conducted ground water monitoring again in 2012 to

       update the data for the Ertel Site.


[20]   On May 30, 2012, the City submitted a site status update for the Ertel Site

       setting forth its groundwater monitoring data since 2008 and addressing the

       new RCG considerations for risk-based objectives, including exposure

       pathways. While acknowledging that the results of the most recent

       groundwater sampling event indicated impacts exceeding IDCLs, the City

       asserted that the concentrations established a declining trend of contaminants

       flowing from the Ertel Site as the levels were “either below or similar to those

       historically encountered at the site.” Joint Appendix of Appellants Vol. XXIV at

       96. The City submitted:


               Based on the results of the most recent groundwater sampling
               event and after evaluation of the sampling results with respect to
               historic sampling data, it appears that the soil remediation
               conducted at the [Ertel S]ite has been effective in mitigating
               migration of impacts off-site and downgradient from the [Ertel
               S]ite.


       Id. The City further addressed the risk associated with such, noting that “[o]ff-

       site migration of impacts from the [Ertel S]ite does not appear to pose a

       continual impact to groundwater.” Id.


[21]   The City also addressed the risk of vapor intrusion, noting that Major Tool

       included in construction of its facility on the Ertel Site an extensive vapor

       mitigation system. Because no vapor impacts in excess of IDEM closure

       criteria had been encountered and given that the active vents of the vapor
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 14 of 32
       mitigation system were no longer in use, the City asserted that vapor intrusion

       issues had been “successfully mitigated and do not appear to pose a threat to

       human health.” Id. at 97. Based on its assessment, the City formally requested

       that IDEM issue an NFA Letter. After review, IDEM did not issue an NFA

       Letter, but rather requested additional information regarding the City’s risk

       assessment and evaluation of exposure pathways.


[22]   On October 15, 2012, the City submitted an extended “Exposure Pathway Risk

       Analysis” to IDEM to augment the May 30, 2012 site status update. The City

       opined that “[p]otential exposure pathways do not present a threat to human

       health and the environment and any residual impacts remaining can be

       addressed through the use of an ERC.” Joint Appendix of Appellants Vol. XXIV at

       115. In support thereof, the City pointed out: (1) no wetlands existed on the

       Ertel Site, (2) the Ertel Site was not within a Wellhead Protection Area, (3) the

       impacted soil had been removed and the Ertel Site was subsequently

       redeveloped and covered with concrete, (4) the Ertel Site is supplied with

       municipal water by the City of Indianapolis, (5) there are no local residential

       potable water wells within a one-mile radius of the Ertel Site, and (6) impacts to

       groundwater had been shown to be stable or decreasing since completion of soil

       remediation. While noting that impacts exceeding IDCLs had been recorded at

       a facility located directly downgradient of the Ertel Site, the City asserted that

       such was the result of an on-site source independent of potential migratory

       impacts from the Ertel Site.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 15 of 32
[23]   On November 19, 2012, IDEM issued an NFA Letter concluding that no

       further action was required to address contamination at the Ertel Site. In

       making this determination, IDEM noted that it reviewed the following reports

       and information:


           • Exposure Pathway Risk Analysis and No Further Action Request, submitted by
             Heartland Environmental Associates, Inc. (Heartland) on October 15,
             2012;
           • Site Status Update, submitted by Heartland and dated May 30, 2012;
           • Final VI System Sampling Report, submitted by [QEPI] and dated
             December 2010; and
           • various groundwater monitoring reports from March 2008 through April
             2010.

       Joint Appendix of Appellants Vol. III at 12.


[24]   With regard to soil contamination at the Ertel Site, IDEM noted the extensive

       removal of contaminated soil, the post-excavation soil sampling that showed

       remaining soil contaminants were within IDEM RISC parameters, and that

       Major Tool’s construction of a new manufacturing facility on the Ertel Site

       “effectively capped the [Ertel] Site and eliminated any potential direct contact

       soil exposure risk.” Id. at 19. As to groundwater contamination, IDEM noted

       that monitoring from 2008 through 2012 showed that “chlorinated hydrocarbon

       concentrations were exhibiting a declining trend at all wells and all ground

       water depths.” Id. IDEM acknowledged that during the most recent

       groundwater monitoring event there were impacts exceeding IDCLs but noted

       that no potable wells existed within one mile of the Ertel Site and that the Ertel

       Site was not located in a wellhead protection area. IDEM also noted that to

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 16 of 32
       manage any potential exposure risk, an ERC 10 had been recorded with the Ertel

       Site.


[25]   IDEM concluded that “[b]ased on the information provided, as well as current

       industrial site use, no further action is required at this time” as there was no

       longer any potential direct contact soil exposure risk, no vapor inhalation

       pathway, and no further migration of contaminants into the groundwater at the

       Ertel Site. Joint Appendix of Appellants Vol. III at 14. At that time, $846,000

       remained in the escrow account. The parties do not dispute that these funds

       were surrendered to the City.


[26]   On January 29, 2013, Moran, as “a downgradient property owner,” filed a

       petition for administrative review with the OEA (OEA I) challenging IDEM’s

       issuance of the NFA Letter. 11 Id. at 2. Moran requested that the NFA Letter be

       revoked because IDEM failed to fully characterize contamination arising from

       the Ertel Site in that it did not consider offsite impacts. In response, the City

       and IDEM argued that the NFA Letter was properly issued based upon RISC




       10
         The ERC prohibited residential use of the Ertel Site, installation of potable wells for ground water
       extraction and consumption, and excavation of soil without IDEM’s prior approval. The ERC also required
       the continued operation and maintenance of the sub-slab vapor mitigation system.
       11
          Moran also sought to intervene in the civil action between IDEM and Ertel. The trial court initially denied
       the motion to intervene, but on appeal this court reversed, finding that Moran “had an immediate and direct
       interest in the proceedings” and that the distribution of funds remaining in the escrow account to the City
       would impede protection of its property in that Moran was claiming contamination on its property
       emanating from the Ertel Site not addressed by IDEM prior to issuing the NFA Letter for the Ertel Site. See
       Moran Elec. Serv., Inc. v. Ind. Dep’t of Envtl. Mgmt., 8 N.E.3d 698, 708 (Ind. Ct. App. 2014), aff’d on reh’g 13
       N.E.3d 906. This court also determined that under the primary jurisdiction doctrine, the action before the
       trial court should be stayed until the administrative proceedings before the OEA became final. Id. at 706.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                     Page 17 of 32
       guidance and a risk analysis under the RCG. The City and IDEM also argued

       that Moran did not have standing to challenge issuance of the NFA Letter

       because Moran was not aggrieved or adversely affected.


[27]   Over the next several years, the parties conducted extensive discovery, resulting

       in a voluminous record that was presented to the OEA during a final hearing on

       Moran’s objection held October 24 through October 27, 2016. Before the OEA

       issued its decision, Moran filed a second petition for administrative review with

       the OEA on December 30, 2016 (OEA II), again requesting review and

       revocation of IDEM’s issuance of the NFA Letter regarding the Ertel Site. 12 In

       OEA II, Moran relied upon data it collected after the NFA letter was issued,

       which Moran claimed showed TCE contamination at the Ertel Site at levels far

       greater than the levels IDEM relied upon to justify issuance of the NFA Letter.

       Moran asserted that recently collected data also suggested that contamination at

       downgradient properties had the same isotopic signature as the contamination

       found on the Ertel Site, thus suggesting that contamination was still emanating

       therefrom. Moran also argued for the first time that IDEM failed to apply the

       cleanup standards set forth in the Agreed Order and that by applying different

       standards, IDEM violated state and federal law.




       12
          In its second petition, Moran stated that it was “being sued in state and federal court for environmental
       response costs that were and are necessitated by contamination that migrated, and is migrating from the
       [Ertel S]ite.” Joint Appendix of Appellants Vol. XII at 3. Moran also stated that it had “incurred substantial
       costs to investigate the nature and extent of contamination originating from and migrating to the former
       Moran [Site].” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                       Page 18 of 32
[28]   On April 7, 2017, the OEA issued a fourteen-page final order setting out its

       findings of fact and conclusions of law in OEA I. The OEA detailed the history

       of the Ertel Site, the remediation efforts undertaken by the City, and the

       sampling data collected thereafter. The OEA found that IDEM properly relied

       upon RISC and the RCG, thereby rejecting Moran’s argument that pursuant to

       the terms of the Agreed Order, IDEM was strictly limited to following the RISC

       default approach. Specifically, the OEA concluded:


               IDEM relied on RISC and RCG to determine if the Ertel Site
               qualified for no further action status. [Moran] argues that the use
               of the RCG was improper as the Settlement Agreement and the
               [Agreed Order] indicated that the NFA should be issued using
               the RISC guidance. However, the RCG guidance was in effect
               when the NFA Letter was issued and at the time IDEM was
               analyzing whether NFA was appropriate. The [Agreed Order]
               contemplated that the [Ertel] Site could be closed using RISC.
               This would necessitate using the RCG. Also, both RISC and
               RCG are non-rule policy documents and do not have the force of
               law. Further, the use of the RCG is consistent with the statutory
               authority . . . in effect when the NFA Letter was issued. So, the
               applicable statutes and rules would clearly have precedent in this
               instance.


       Joint Appendix of Appellants Vol. II at 63.


[29]   With regard to soil contamination, the OEA acknowledged that there were

       individual sidewall and bottom soil samples that showed contaminants of

       concern at levels exceeding RISC IDCLs. The OEA, however, accepted expert

       testimony that these individual samples were “indicative of ground water

       contamination, not soil contamination.” Id. The OEA further found that PEC

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 19 of 32
       calculations, which were shown to be below IDCLs, were “an appropriate line

       of evidence for closure under RISC” and “consistent with the law.” Id. at 59,

       64. Based on its de novo review of the evidence and the fact that Moran did not

       present any evidence challenging the PEC calculation relied upon by IDEM, 13

       the OEA concluded that although it was “possible” that contaminants of

       concern remained on the Ertel Site, “the weight of the evidence” demonstrated

       that the remedial goals for soil contamination had been met. Id.


[30]   With regard to groundwater contamination and migration of contaminants of

       concern from the Ertel Site to the Moran Site, the OEA agreed with IDEM that

       any contamination flowing from the Ertel Site commingled with more

       significant contamination that directly occurred on the Moran Site itself 14 and

       that Moran was “a responsible party” with regard to such contamination. Id. at

       55. The OEA found that “any residual contaminants migrating off of the Ertel

       [S]ite would be remediated or contained by [Moran] without additional cost to

       them, when [Moran] remediated or contained [its] own contributions to the co-

       mingled plume.” Id. at 60. The OEA also agreed with IDEM’s assessment of

       groundwater exposure pathways. Based on its de novo review of the data, the

       OEA concluded that IDEM properly determined that “the ground water plume




       13
            Moran’s own expert admitted that the PEC calculation was accurate and below IDCLs.
       14
         In support, the OEA noted that “several witnesses testified that the ground water contamination
       downgradient of the Moran [Site] were orders of magnitude above the amount of ground water
       contamination migrating from the upgradient Ertel Site onto the Moran [Site].” Joint Appendix of Appellants
       Vol. II at 65. This evidence suggested that any contamination emanating from the Ertel Site was less than the
       contamination existing on the Moran Site.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                  Page 20 of 32
       coming from [the] Ertel [Site] was stable; that the exposure pathways for

       ground water were incomplete; and that the levels emanating from the Ertel

       [S]ite are at an acceptable site-specific risk level.” Id. at 66.


[31]   The OEA also concluded that “vapor intrusion issues downgradient of the Ertel

       [Site]” were only minimally caused by contamination on the Ertel Site. Id. at

       65. In closing, the OEA concluded that IDEM “was consistent in how it

       applied RISC and RCG and the law” and that “the Ertel Site qualified for NFA

       status.” Id. at 66.


[32]   On May 4, 2017, Moran filed a petition for judicial review of OEA I. On July

       24, 2017, the trial court granted an agreed motion to stay the proceedings

       pending resolution of OEA II.


[33]   The OEA held a final hearing on the OEA II matter on August 24-25, 2017.

       On January 17, 2018, the OEA issued extensive findings of fact and conclusions

       of law denying OEA II. The OEA acknowledged Moran’s new data but noted

       that the method used to obtain such (i.e., grab samples) 15 rendered it

       “inadequate for compliance or closure purposes because they only show one

       sampling event in one location and, therefore, are insufficient to show whether




       15
         Moran submitted data from vertical aquifer profiling samples, which are also knows as “grab”
       groundwater samples. The OEA noted that “[g]rab groundwater samples are useful for screening,
       investigative or delineation purposes,” Joint Appendix of Appellants Vol. II at 71. The OEA also noted that
       split samples taken by another entity at the same time and location as Moran’s samples “resulted in a few
       high relative percent difference values,” which “made IDEM question the reproducibility of [Moran’s]
       samples.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                    Page 21 of 32
       a plume is stable or declining over time.” Id. at 71. In contrast to the grab

       samples, the OEA considered data from the permanent wells on the Ertel Site,

       which the OEA found showed that contaminants of concern were stable or

       declining.


[34]   Having considered Moran’s arguments in OEA II, the OEA concluded as

       follows:


               5. There is sufficient evidence to support a conclusion that
               releases occurred on the Ertel . . . and Moran site[s]. There is
               also no question that contamination was left on the Ertel [S]ite.
               Moran has presented sufficient evidence to call into question
               whether upgradient contamination from Ertel or [another
               upgradient property] has migrated onto the Moran [S]ite. But the
               question before the Court is not whether there is contamination
               migrating from Ertel to Moran, but whether IDEM properly
               applied the RISC policy in evaluating the request for NFA status
               for Ertel, even in light of the new data collected by Moran. So, a
               conclusion that contamination is migrating does not
               automatically lead to a conclusion that IDEM erred in issuing
               the NFA [Letter] or refusing Moran’s request to revoke the NFA
               [Letter] based on the data collected by Moran afterwards. The
               RISC policy does not require a cleanup to zero. RISC considers
               whether each exposure pathway poses a threat to human health
               or the environment. In this case, the sites are part of a larger
               industrial area. Each possible exposure pathway was analyzed
               under the rules and guidance documents and IDEM determined
               that, after the remediation undertaken at the Ertel [S]ite, none of
               the pathways posed a hazard to human health or the
               environment.


               6. The three exposure pathways analyzed for Ertel were direct
               soil contact, ground water and vapor intrusion.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 22 of 32
        7. The soil contamination was addressed by (1) excavation of the
        contaminated soil; (2) restrictive covenants on use of the
        property, including but not limited to the continued operation of
        the sub-slab vapor extraction mitigation system; and (3) potential
        exposure analysis addressed. On this basis, IDEM determined
        that there was no exposure pathway for direct soil contact.


        8. Drinking water in this area is supplied by the City of
        Indianapolis so there is no exposure pathway for ground water.


        9. Vapor intrusion is not likely in this area because there are few
        buildings in the affected area and there are vapor intrusion
        mitigation devices in those buildings that might be affected.


        10. While Moran has provided data that indicates high
        concentrations of TCE and PCE . . . , this data was based on
        “grab” sampling. This type of sample does not carry the same
        weight as samples taken from permanent wells over a long period
        of time. So, the preponderance of the evidence weighs in favor of
        IDEM’s decision. These grab groundwater samples are not
        comparable to the data from the permanent wells . . . and they
        presented insufficient information to revisit the determination as
        to whether the plume emanating from the Ertel Site was stable or
        declining.


        11. IDEM was evaluating [the Ertel Site] to determine if there
        were any open exposure pathways. Moran’s evidence, while it
        shows contamination still exists, failed to address the risk posed
        by the remaining contamination. Moran has presented no
        evidence that a completed exposure pathway exists at the Ertel
        Site or that the risk-based approach used to close the Ertel Site is
        no longer effective or that it otherwise presents a risk to human
        health or the environment.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 23 of 32
       Id. at 77-78. Moran timely sought judicial review of OEA II. Pursuant to the

       parties’ request, Moran’s petitions for judicial review were consolidated. 16


[35]   The trial court heard argument on Moran’s petitions on August 14, 2018. On

       November 20, 2018, the trial court issued its Order on Petition for Judicial

       Review. The trial court sided with Moran, concluding that “the OEA erred in

       concluding applicable statutes and rules would have precedent over the contract

       terms negotiated by the parties in the Agreed Order.” Id. at 47. In so

       concluding, the trial court relied on a single comment in IDEM’s RPG, which

       presumably 17 states that “IDEM must follow state law, unless the site is

       governed by an agreement, such as a Voluntary Remediation Agreement or

       Agreed Order.” Id. at 49 (emphasis in original). The court continued, “The

       [Ertel] Site was governed by an Agreed Order which set out specific remedial

       goals. One party to an agreement cannot unilaterally change remediation terms

       after an agreement has been signed by the parties and entered by the Court.”

       Id. The trial court concluded that “the language of the Agreed Order must

       control” and therefore reversed the OEA’s decision upholding IDEM’s issuance




       16
         The trial court sua sponte consolidated Moran’s petitions for judicial review with IDEM’s civil action
       against Ertel in which Moran was permitted to intervene.
       17
         We say presumably because the RPG was not part of the record before the OEA. According to IDEM, the
       RPG is part of the record in the civil action it filed against Ertel. IDEM asserts, however, that the trial court
       improperly consolidated this action pertaining to review of the OEA’s decision under AOPA with the civil
       action. Thus, IDEM maintains that the trial court erroneously relied upon the RPG as it was not part of the
       agency record.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                      Page 24 of 32
       of the NFA Letter for the Ertel Site. Id. The City and IDEM now appeal.

       Additional facts will be provided as necessary.


                                       Discussion & Decision
                                             Standard of Review

[36]   Judicial review of an administrative decision is limited under the

       Administrative Orders and Procedures Act (AOPA). Huffman v. Office of Envtl.

       Adjudication, 811 N.E.2d 806, 809 (Ind. 2004). We give deference to the

       expertise of the administrative body, and will reverse the agency’s decision only

       if it is


                  (1) arbitrary, capricious, an abuse of discretion, or otherwise not
                  in accordance with law; (2) contrary to constitutional right,
                  power, privilege, or immunity; (3) in excess of statutory
                  jurisdiction, authority, or limitations, or short of statutory right;
                  (4) without observance of procedure required by law; or (5)
                  unsupported by substantial evidence.


       Ind. Code § 4-21.5-5-14(d). “A decision is arbitrary and capricious when it is

       made without any consideration of the facts and lacks any basis that may lead a

       reasonable person to make the same decision made by the administrative

       agency.” Ind. Dep’t of Envtl. Mgmt. v. Schnippel Constr., Inc., 778 N.E.2d 407, 412

       (Ind. Ct. App. 2002), trans. denied (2003). The party seeking judicial review

       bears the burden of proving that the agency action is invalid for one of the five

       reasons. Jay Classroom Teachers Ass’n v. Jay Sch. Corp., 55 N.E.3d 813, 816 (Ind.

       2016).


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 25 of 32
[37]   “When reviewing an administrative agency’s decision, appellate courts stand in

       the same position as the trial court.” Pendleton v. McCarty, 747 N.E.2d 56, 61

       (Ind. Ct. App. 2001) (citing Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d 869,

       872 (Ind. Ct. App. 2000)). This court may not substitute its judgment on

       factual matters for that of the agency, and we are bound by the agency’s

       findings of fact if they are supported by substantial evidence. See Whirlpool

       Corp. v. Vanderburgh Cty.-City of Evansville Human Relations Comm’n, 875 N.E.2d

       751, 759 (Ind. Ct. App. 2007). On review, we are prohibited from reweighing

       the evidence or judging the credibility of witnesses. Amoco, 726 N.E.2d at 873.


[38]   While reviewing courts must accept the agency’s findings of fact if supported by

       substantial evidence, no such deference need be accorded an agency’s

       conclusions of law, as the law is the province of the judiciary. Id. However,

       “[a]n interpretation of a statute by an administrative agency charged with the

       duty of enforcing the statute is entitled to great weight, unless this interpretation

       would be inconsistent with the statute itself.” Moriarity v. Ind. Dep’t of Natural

       Res., 113 N.E.3d 614, 619 (Ind. 2019) (quoting LTV Steel Co. v. Griffin, 730

       N.E.2d 1251, 1257 (Ind. 2000)); see also Hoosier Outdoor Advertising Corp. v. RBL

       Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct. App. 2006), trans. denied.


[39]   Here, the agency action being challenged is IDEM’s issuance of the NFA Letter

       and the OEA’s affirmance thereof. The dispute on appeal concerns the proper

       remediation objectives that IDEM was to use in deciding whether the Ertel Site

       qualified for closure.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 26 of 32
[40]   We begin with the language of the Agreed Order, which set out the remedial

       goals for the Ertel Site as follows:


               (1) reducing the on-site Contaminants of concern to industrial
               default RISC[ ] cleanup levels; and (2) reducing Contaminants of
               concern flowing off-site in the groundwater to at or below
               MCLs[] or to a site specific risk level, as defined by IDEM RISC
               guidance, to be protective of human health and the environment
               and of the City’s water supply.


       Joint Appendix of Appellants Vol. II at 97. Moran argues that this provision set

       “specific levels to which contaminants must be reduced in soil and groundwater

       on the Ertel Site” and mandated that IDEM follow the default approach under

       RISC. Appellee’s Brief at 23. Specifically, Moran argues that IDEM could not

       consider the PEC calculations as to soil contamination because such was a

       nondefault method under RISC. Moran also argues that IDEM could not

       consider other risk-based objectives found under the RISC nondefault method

       or the RCG because the Agreed Order required that the “specific levels” be

       attained before closure could occur. The City and IDEM argue that the PEC

       calculation and risk-based objectives (including an assessment of risk associated

       with exposure pathways) under the RCG technical guidance were properly

       considered in concluding that the Ertel Site qualified for closure.


[41]   In reviewing these same arguments, the OEA acknowledged that the Agreed

       Order “contemplated that the Site could be closed using RISC.” Joint Appendix

       of Appellants Vol. II at 63. However, noting that RISC was replaced with the

       RCG and that the RCG was in effect when the NFA Letter was issued, the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 27 of 32
       OEA found that the Agreed Order’s reference to RISC “would necessitate using

       the RCG.” Id. The OEA also noted that RISC and the RCG were non-rule

       policy documents that do not have the force of law. 18 Thus, the OEA found

       that the statutes in effect when the NFA Letter was issued took precedence over

       the language in the Agreed Order that referenced only RISC guidance. The

       OEA therefore concluded that IDEM properly relied on risk-based remediation

       standards in deciding to issue the NFA Letter.


[42]   In reversing the OEA’s order, the trial court relied upon a single statement from

       IDEM’s RPG, namely that “‘IDEM must follow state law, unless the site is

       governed by an agreement, such as a Voluntary Remediation Agreement or

       Agreed Order.’” Id. at 49 (quoting “(Remediation Program Guide, February

       2012, With Corrections Up to July 9, 2012, Indiana Department of

       Environmental Management, p. 10, emphasis added.)). Based on this statement

       out of the RPG, the trial court concluded that “the language of the Agreed

       Order must control.” Id.


[43]   The trial court’s reliance on the RPG was erroneous for several reasons. First,

       as pointed out by IDEM, the RPG was not part of the review proceedings

       before the OEA and therefore such was not part of the agency record available




       18
          Indeed, we note that both documents expressly caution that if any provisions therein conflict with statutes,
       the statutes control. RISC expressly provided: “If a conflict exists between RISC and state or federal rules or
       statutes, the rules and statutes will prevail.” Joint Appendix of Appellants Vol. XXVII at 12. The RCG also
       contains a similar disclaimer, stating that “[i]t is intended solely as guidance and shall be used in conjunction
       with applicable rules or laws” and that “if it conflicts with these rules or laws, the rules or laws shall control.”
       Joint Appendix of Appellants Vol. XIII at 184.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                         Page 28 of 32
       for the trial court’s review. See, e.g., Dev. Servs. Alternatives, Inc. v. Ind. Family &

       Social Servs. Admin., 915 N.E.2d 169, 176 (Ind. Ct. App. 2009) (noting that

       judicial review of disputed issues of fact must be confined to the agency record

       for the agency action), trans. denied. The RPG is also not in the record on

       appeal. 19 Second, even if the RPG was in the record, the legislature’s mandate

       that IDEM consider risk-based objectives for site closure in conjunction with its

       expressed intent that such objectives be applied retroactively cannot be ignored.

       See I.C. § 13-25-5-8.5(a) (providing that statutory changes “apply to a site

       regardless of whether the site was entered into the voluntary remediation

       program before July 1, 2009, or after June 30, 2009”). Third, the RPG is a non-

       rule policy document that does not have the effect of law. A statement in the

       RPG cannot therefore overrule the clear intent of the legislature with regard to

       closure of environmental sites.


[44]   Here, the parties to the Agreed Order (which, we note, does not include Moran)

       referenced use of RISC technical guidance, which was the only technical

       guidance in existence at the time the Agreed Order was entered, for defining the

       contamination level acceptable for closure of the Ertel Site. While the Agreed

       Order referenced “default RISC cleanup levels” and “IDEM RISC guidance,” it

       did not specify whether the default or nondefault method should be employed.

       Joint Appendix of Appellants Vol. II. at 97. Thus, contrary to Moran’s argument,



       19
         According to IDEM, the RPG was admitted as part of the proceedings in IDEM’s civil action against
       Ertel. IDEM argues that the trial court erred when it sua sponte consolidated the civil action with this review
       action under AOPA and thus, the RPG was not properly before trial court.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020                     Page 29 of 32
       the Agreed Order did not limit the method of compliance to the default method

       under RISC, i.e., a strict comparison of TCE and PCE values to IDCLs. Use of

       the PEC calculation, a valid, nondefault method of site closure under RISC, did

       not therefore contravene the terms of the Agreed Order. See Ind. Dept. of Envtl.

       Mgmt. v. Raybestos Products Co., 897 N.E.2d 469, 477 (holding that “the public

       interest is not served by enforcing promises that were never made” and thus

       IDEM did not violate the terms of an agreed order by communicating with the

       EPA when the agreed order did not “purport to forbid” such). In accordance

       with RISC guidance, IDEM presented evidence that the PEC calculation for

       contaminants of concern at the Ertel Site were less than IDCLs and such served

       as the basis for IDEM’s conclusion that soil contamination at the Ertel Site had

       been adequately remediated. In this vein, we also note that soil remediation

       was considered complete years before the Agreed Order was entered and the

       parties to the Agreed Order were clearly aware that IDEM used a nondefault

       method (i.e., comparison of the PEC calculation with IDCLs) in finding that no

       further soil remediation at the Ertel Site was required.


[45]   We next turn to the statutory amendments made by the legislature. We agree

       with the OEA’s assessment of the facts and timing of events as they pertain to

       interpretation of the Agreed Order. At the time the Agreed Order was entered,

       RISC was the technical guidance document followed by IDEM. In the time

       between the Agreed Order and issuance of the NFA Letter, IDEM replaced

       RISC with the RCG, which provided technical guidance for site closure that

       was consistent with the new statutory requirements. The RCG became


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 30 of 32
       effective after the Agreed Order was entered and was the technical guidance

       document being utilized by IDEM for site closure when the City asked IDEM

       to evaluate the Ertel Site for no further action status. In light of the evolving

       environmental policies of this State, the OEA determined that IDEM properly

       considered risk-based objectives and its reliance on the RCG was proper as such

       was consistent with the statutory mandate. Moran has not established that

       application of the RCG and risk-based objectives was arbitrary and capricious.

       We therefore find no error in the OEA’s review of IDEM’s issuance of the NFA

       Letter.


[46]   Moran has also not established that the OEA’s refusal to set aside the NFA

       Letter based on the new sampling data Moran submitted was arbitrary and

       capricious. The OEA acknowledged Moran’s data, but found that such was

       unreliable, did not undermine the City’s data from the time of closure, and did

       not establish a completed exposure pathway for soil or groundwater

       contamination or vapor intrusion. 20 Moran does not challenge these factual

       findings and we will not substitute our judgment for that of the administrative

       agency.


[47]   In sum, we conclude that the determination as to the proper remediation

       standards to be applied in deciding whether the Ertel Site qualified for no




       20
         IDEM and the City also argue that Moran is not an aggrieved or adversely affected party for purposes of
       seeking review under AOPA. Given our conclusion that IDEM properly issued the NFA Letter, we need not
       address the parties’ arguments in this regard.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020               Page 31 of 32
       further action status was not arbitrary and capricious and was in accordance

       with the law in effect when the NFA Letter was issued. IDEM’s issuance of the

       NFA Letter was not in error. We therefore reverse the trial court’s order

       remanding the matter to IDEM.


[48]   Judgment reversed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-3055 | March 4, 2020   Page 32 of 32
