By Jamie B. Dameron, Farmer Scott Ozete Robinson & Schmitt LLP
State and federal environmental laws are the common drivers behind multi-million dollar environmental cleanups. A recent Indiana case, however, serves a reminder to also consider the powerful requirements of the mighty local ordinances’ impacts on environmental liabilities for property owners.
In FLM, LLC v. Metropolitan Development Commission of Marion County, Indiana, the appellate court confirmed that an ordinance violation requires a property owner to remove Black Mountain. Black Mountain is a huge pile of foundry sand accumulated by a former tenant that is more than fifty feet high, covering two acres and “leaching multiple toxic chemicals into the ground beneath it.” The cost of Black Mountain’s removal ranges between $2.3 million or over $3.5 million, depending on the approach.
It was undisputed that the City ordinances violated by the former tenant involved failing to get a drainage permit and address erosion control, and storing materials more than twenty feet in height. The property owner did not actually deposit any part of Black Mountain or commit these violations.
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