EnviroNotes

By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On November 15, 2007, the Indiana Court of Appeals reversed a Marion Superior Court ruling that the IDEM had breached an Agreed Order and the trial court’s order that the IDEM pay over $16 million in damages and attorney’s fees.

The case began in 1997 when the IDEM and Raybestos Products Company ("Raybestos") entered into an Agreed Order requiring Raybestos to remediate PCB contamination near its plant in Crawfordsville, Indiana. The IDEM approved a risk assessment prepared by Raybestos. Raybestos then submitted a proposed cleanup plan based on the approved risk assessment that would require Raybestos to remediate the contaminated soil to a level of no more than 238 parts per million ("ppm"). The IDEM decided that this level of cleanup was not adequate and disapproved the cleanup plan, and then withdrew its approval of the risk assessment.

The disapproval of the cleanup plan and withdrawal of the risk assessment were challenged in 2001, and the court held that the IDEM could not withdraw its approval of the risk assessment and ordered the IDEM to reinstate the risk assessment and approve the proposed cleanup plan. Instead, the IDEM convinced the U.S. EPA to initiate its own cleanup order which required Raybestos to remediate the PCB contaminated soil to a level of no greater than 10 ppm. The U.S. EPA-ordered cleanup was much more costly to undertake than the court-ordered cleanup.

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