Indiana’s Environmental Legal Action (“ELA”) statute creates a cause of action to recover costs paid to remediate environmental contamination. We have previously written an article regarding who may be liable under its provisions. And, we will save the discussion of what costs may be recovered for another day. This article focuses on when an ELA claim must be brought.

In Indiana, it is black letter law that a cause of action must be brought within ten years after the cause of action accrues, unless another statute applies a different limitations period. Indiana Code § 34-11-1-2(a). One such statute, I.C. § 34-11-2-7(3), provides that actions for injuries to property must be brought within six years after the cause of action accrues. For purposes of an ELA claim, it is unclear whether the general 10-year or specific 6-year statute of limitations applies. Is an ELA claim one seeking to recover for an environmental injury to real property or one to recover costs associated with cleanup? A case can be made for either position.

Adding to the confusion, or perhaps continuing it, Indiana’s state and federal courts have both recently punted on the issue of whether the ELA statute of limitations should be 6 years or 10 years reasoning that such a ruling was not required to otherwise dispose of the cases. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1281 (Ind. 2009); Bernstein v. Bankert, 2011 WL 470430 (S.D. Ind. 2011).

Moreover, Indiana’s General Assembly has twice failed to pass bills that would have settled the matter. In 2007, Senator Gard offered Senate Bill 101 which would have required ELA claims to be filed within 10 years of discovering the presence of a hazardous substance or petroleum in soil or groundwater. While the bill passed unanimously in the Indiana Senate, it died in the House Judiciary Committee. Some of the bill’s language, however, did become law in the form of a House Bill. Senator Gard tried again this year with a different approach in Senate Bill 346. This bill proposes to limit the recovery of costs to those incurred within 10 years of the date the action was brought. For example, if you incurred costs over the course of the last 15 years and then filed your ELA claim, you could only recover the costs incurred in years 5 to 15. While the fate of this bill is unclear, it appears dead along with the rest this session’s legislation.

What is the lesson from this uncertainty? Always consult with experienced environmental counsel to determine whether a claim is potentially time-barred.