Three independent gas station owners, an environmental engineering firm, and the United States Small Business Owners Association (USSBOA), which represents approximately 900 independent gasoline and convenience stores in Indiana, filed a class-action lawsuit this afternoon against the Indiana Department of Environmental Management (IDEM) and Deputy Assistant Commissioner Douglas R. Louks. The Complaint seeks injunctive relief and damages for actions by IDEM, its refusal to properly process claims submitted to the Excess Liability Trust Fund (ELTF) and IDEM’s attempts to close sites while leaving in place high concentrations of hazardous substances, such as benzene, a known human carcinogen.
The litigation follows a Notice of Tort Claim filed on May 14, 2019 that outlined the claims and damages to the Plaintiffs resulting from IDEM’s unlawful interpretation of ELTF statutes, which did not follow the legal requirements needed for such changes. It also follows a ruling by the Chief Administrative Law Judge for the Office of Environmental Adjudication (OEA), which serves as the ultimate authority for IDEM, that IDEM’s policy was unlawful.
“IDEM’s unilateral changes to the ELTF claims process, made without notice or due process, created significant harm that continues to this day,” said William Wagner of Taft Law, who represents the plaintiffs. “The lawsuit seeks to require IDEM to formally rescind what OEA determined to be an unlawful ‘Reimbursement Suspension Policy’ that attempted to shift liability to current owners for environmental contamination that occurred under previous ownership as a condition to being reimbursed from ELTF for the cleanup of the contamination.”
“The property rights of these independent owners and operators of gas stations with convenience stores, that the Governor has rightly listed as essential businesses providing gasoline and food, have suffered damage that must be corrected,” said Brian Burdick of Barnes & Thornburg, who represents USSBOA, the association of these independent owners, before the Indiana legislature.
The formal Class Action Complaint for Injunctive Relief and Damages is attached and contains greater detail regarding the Plaintiffs and the relief sought. Included as a plaintiff is Golars Environmental and Remediation Services, LLC (Golars) represented by its General Counsel, Greg Zoeller, who said, “It’s unfortunate to have to bring this action to resolve the mistakes of IDEM. But after exhausting all administrative remedies and succeeding on the merits before the appropriate legal authorities, the agency has left us no choice.”
“IDEM took unlawful actions that exceeded their statutory authority, imperiling both the environment and public health, as well as harming the small businesses directly involved. They must now be held to account,” Zoeller concluded.