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Moran Electric Service, Inc. v. Commissioner, Indiana Dept. of Environmental Management

Court of Appeals of Indiana

April 21, 2014

MORAN ELECTRIC SERVICE, INC., and THREADED ROD COMPANY, INC., Appellants-Proposed Intervenors,
v.
COMMISSIONER, INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellee-Plaintiff, CITY OF INDIANAPOLIS, Appellee-Intervenor, ERTEL MANUFACTURING CORP., Defendant

Page 699

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1002-MI-6915.

ATTORNEYS FOR APPELLANT, Threaded Rod Company, Inc.: DAVID A. TEMPLE, SEAN T. DEVENNEY, SCOTT P. FISHER, Carmel, Indiana.

ATTORNEYS FOR APPELLANT, Moran Electric Company, Inc.: GLENN D. BOWMAN, NICHOLAS K. GAHL, MARC A. MENKVELD, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE, Indiana Department of Environmental Management: GREGORY F. ZOELLER, Attorney General of Indiana; ANDREW R. FALK, TIMOTHY J. JUNK, Deputy Attorney General, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE, City of Indianapolis: CAMERON GREGORY STARNES, Office of Corporation Counsel, Indianapolis, Indiana.

BARNES, Judge. ROBB, J., and BROWN, J., concur.

OPINION

Page 700

BARNES, Judge

Case Summary

Threaded Rod Company, Inc., (" Threaded Rod" ) and Moran Electric Service, Inc., (" Moran" ) (collectively, " Appellants" ) appeal the trial court's denial of their motions to intervene and motions for preliminary injunction in litigation between the Indiana Department of Environmental Management (" IDEM" ), the City of Indianapolis (" the City" ), and Ertel Manufacturing Corporation (" Ertel" ). We reverse and remand.

Issues

Appellants raise two issues, which we restate as:

I. whether the trial court properly found that it did not have subject matter jurisdiction over Appellants' claims; and
II. whether the trial court properly denied Appellants' motions to intervene.

Facts

Ertel and Appellants are the former or current owners of adjacent properties located in Indianapolis. The properties are contaminated with hazardous chemicals. There is some dispute as to whether the contaminants on the Appellants' sites originated on those sites or flowed from the Ertel site. IDEM has demanded that the properties be remediated.

In 2008, the City brought a civil action against Ertel to compel Ertel to reimburse the City for its clean-up costs. In 2009, the trial court entered summary judgment for the City and found that Ertel was liable to the City for cleanup costs.

In 2010, IDEM brought a civil action against Ertel asserting claims under Indiana Code Chapter 13-25-4 and seeking a declaration that Ertel would be responsible to IDEM for past and future costs associated with the cleanup of the hazardous substances at or flowing from

Page 701

the site. In July 2011, IDEM, the City, Ertel, and various insurance companies entered into an Administrative Agreed Order (" Administrative Order" ) and a Settlement and Release Agreement (" Ertel Settlement Agreement" ).

The Administrative Order provided that the parties desired " to settle and compromise this matter without hearing or adjudication of any issue of fact and law . . . ." Appellants' App. p. 147. One of the remedial goals of the Administrative Order was " reducing Contaminants of concern flowing off-site . . . ." Id. at 155. IDEM estimated that it would cost $860,000 to bring " the Site conditions and any associated off-Site areas to [No Further Action] status." Id.

One purpose of the Ertel Settlement Agreement was " for IDEM to conduct and complete future Response Actions at or in connection with the Site and close the Site, including any off-Site areas of Contamination . . . ." Id. at 151. IDEM's remedial goals included in the Ertel Settlement Agreement were " reducing the on-site Contaminants of concern to industrial default RISC cleanup levels" and " reducing Contaminants of concern flowing off-site in the groundwater to at or below MCLs or to a site specific risk level . . . ." Id. at 155. IDEM ...


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