Agreed order for environmental cleanup with IDEM is agency action governed by AOPA

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Boehm, Justice.
We hold that an agreed order for environmental cleanup with the Indiana Department of Environmental Management (“IDEM”) is an agency action governed by the Indiana Administrative Orders and Procedures Act, not a contract that will support a claim for damages from IDEM. We also hold that IDEM has authority to approve risk-based cleanups, and IDEM’s communications with the federal Environmental Protection Agency did not violate its Agreed Order with Raybestos.

(slip op. at 11):  Because the Agreed Order does not support a claim for damages and was not violated by IDEM’s actions, the trial court’s orders denying IDEM’s motions to dismiss and for summary judgment are reversed. This case is remanded with instructions to vacate the judgments in favor of Raybestos and dismiss the complaint for lack of subject matter jurisdiction.

Key Analysis
(slip op. at 8, 10):  Presumably because a contract for the purchase of goods or services will support a claim for damages, it is exempted from the exclusive jurisdiction provision of AOPA. Raybestos concedes the Agreed Order is not such a contract. It therefore is not exempted from AOPA . . . In short, IDEM did not and could not waive its authority to communicate with EPA, and did not commit to do more than suspend its own enforcement efforts.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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