Last week, the Indiana Supreme Court accepted transfer and agreed to review the April 11, 2007 decision of the Indiana Court of Appeals in Cooper Industries, LLC v. The City of South Bend. The Court of Appeals in Cooper Industries, LLC v. The City of South Bend applied the six-year statute of limitations for injury to real property (pursuant to Ind. Code § 34-11-2-7) to causes of action brought under the Environmental Legal Action statute ("ELA"), Ind. Code § 13-30-9-1 et seq. The Court of Appeals, citing the general purpose of a statute of limitations, applied the discovery rule and found that the discovery of an injury, not the development of a new statute (in this case the ELA which was enacted on February 28, 1998), commenced the running of the statute of limitations. The Court found that because the City began to acquire portions of the property and to assess the environmental condition of the site as early as 1986, that the City's March 19, 2003 ELA claim was time-barred.

The Court likewise concluded that in addition to the statutory claim under the ELA, the City's claims under the common law tort theories of negligence, trespass, public and private nuisance were also barred by the six-year statute of limitations. The Court of Appeals' decision in Cooper Industries, LLC v. The City of South Bend had far-reaching consequences for parties interested in bringing a cost-recovery action under the ELA. Under the Court of Appeals decision, the statute of limitations for an action under the ELA could be triggered as soon as party knew or should have known about environmental contamination – even if the party did not own the property at the time it learned of the contamination and despite the fact that the ELA was not enacted until 1998. By the Supreme Court agreeing to accept transfer, the Court of Appeals' decision is vacated. The Supreme Court's decision will have a significant impact on resolving the issue of the ELA's statute of limitations.

Update: Appendix to Chemical Facility Anti-Terrorism Standards; Final Rule was published in the Federal Register on Tuesday, November 20, 2007.