The Indiana General Assembly enacted Indiana’s Environmental Legal Action Statute (the “ELA”), Ind. Code § 13-30-9-2, in 1997 to allow people who incur environmental remediation costs to recover those costs from those who caused or contributed to the contamination. From that time until now, there has been a raging debate over which statute of limitations applies to an ELA action. In the face of conflicting case law applying competing limitations periods,1 the General Assembly enacted Indiana Code § 34-11-2-11.5 which allows the ELA plaintiff to recover “costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought.”
Enactment of the statute did not actually solve the issue it was meant to solve. Although the statute feels like a statute of limitations and likely was intended to operate as a statute of limitations, it was not written like a statute of limitations. Rather than ending the debate over which statute of limitations applies to the ELA, the new statute spawned additional litigation on the subject.
The Indiana Court of Appeals resolved the issue late last year when it decided Elkhart Foundry & Machine Co., Inc. v. City of Elkhart, __ N.E.3d ___, No. 20A03-1709-CT-2136, 2018 WL 4762756 (Ind. Ct. App. Oct. 3, 2018), which held that the ELA is subject to a ten-year statute of limitations. As was noted in our prior article on that case, the appellant filed a petition to transfer the case to the Indiana Supreme Court. The Supreme Court held oral argument on the petition on Feb. 21, 2019. The argument was spirited and the meaning of the statute vigorously debated by the parties.
In a surprise move after argument, the Indiana Supreme Court denied transfer on March 4, 2019 with Justice David and Justice Slaughter dissenting from that decision. The Court of Appels opinion in Elkhart Foundry now stands as the final resolution to the question of what statute of limitations applies to the ELA.
1See Peniel Group, Inc. v. Bannon, 973 N.E.2d 575, 582 (Ind. Ct. App. 2012) (applying six-year statute of limitations); Bernstein v. Bankert, 733 F.3d 190, 220–21 (7th Cir. 2013) (applying ten-year statute of limitations).