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Reversal: Neighbors may intervene in environmental cleanup case

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Businesses neighboring an Indianapolis industrial property that was forced to clean up hazardous chemicals were improperly shut out of litigation involving the city and state, the Indiana Court of Appeals ruled Monday.

In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., 49A02-1305-MI-432, the panel ruled Moran and Threaded Rod have an immediate and direct interest in the proceedings and that Marion Superior Judge Michael Keele erred in determining the court didn’t have subject matter jurisdiction. The panel remanded the matter for further proceedings.

The lawsuit involves environmental cleanup ordered for the Ertel property and litigation dating to 2008, when Indianapolis sued Ertel to recoup the environmental cleanup costs. The former industrial property in the Martindale-Brightwood neighborhood was contaminated with lead, petroleum, asbestos, PCBs and other toxins.

As the cleanup proceeded along administrative and court tracks, Ertel, the city and state settled, and the court approved. Insurance ultimately provided $1 million. Of that, $140,000 reimbursed Indiana Department of Environmental Management for its cleanup fees, and $860,000 was placed in escrow for contingencies. IDEM in 2012 released $846,000 to the city for future cleanup costs.

Moran and Threaded Rod claimed IDEM’s settlement with Ertel required the agency to address contaminants that flowed from the Ertel site onto their properties, but the court denied their motions to intervene.

“The heart of the issue is whether the trial court properly ordered the remaining $846,000 in funds distributed to the City, which is dependent upon whether IDEM properly issued a (No Further Action) Letter regarding the Ertel property,” Judge Michael Barnes wrote for the panel.

“The current parties of the two civil actions are IDEM, the City, Ertel, and various insurance companies. Ertel, having been released from liability, has no incentive to represent Appellants’ interests. IDEM’s and the City’s interests in issuing the NFA Letter and distributing the remaining escrowed funds to the City, also appear to conflict with Appellants’ interests in using the remaining escrowed funds to remediate Appellants’ properties,” Barnes wrote.

“Consequently, we conclude that the representation of Appellants' interests by the existing parties is inadequate. In sum, we conclude that the trial court abused its discretion by denying Appellants’ motions to intervene.”


 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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