By Judge James Joven, Marion Superior Court
In Bullock Oil Company, Inc. v. IDEM, cause no. 49D13-2012-PL-043922 (September 21, 2021), Judge James A. Joven of Marion Superior Court, Civil Division 13, issued an opinion resolving claims made by Bullock Oil under Indiana’s Excess Liability Trust Fund (ELTF) statute and regulations. In that case, Bullock Oil submitted a claim for $145,345.48 in expenses incurred by its consultant, Golars LLC. IDEM denied $40,607.38 of the claim on the grounds that some of the time spent by the consultant was not reasonable and cost effective. The denial was appealed to the Indiana Office of Environmental Adjudication, which ordered IDEM to reimburse $3,601.25 in costs but denied all remaining claims. OEA agreed with IDEM’s conclusion that the hours spent by Golars clearly seemed excessive.
On judicial review, Bullock Oil argued that IDEM’s denial was based on an unpromulgated rule. Judge Joven found that “reasonable” and “cost effective” are defined under promulgated rules, and that IDEM’s decision to enforce those rules more stringently is not equivalent to the improper creation of a new standard. Further, the Judge found that Bullock Oil failed to carry its burden to prove that OEA’s decision was not based on substantial evidence, noting that Golars had spent almost 350 hours writing four reports, that some portions of those reports were duplicative of previous reports, and that the activities of Golars’ project managers were not attributed to any specific activities. Finally, Judge Joven rejected Bullock Oil’s argument that the law related to ELTF claims is not ascertainable.
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