Indiana’s Environmental Legal Action statute (the “ELA”) allows plaintiffs to bring an environmental legal action against a person that caused or contributed to the release of a hazardous substance or petroleum to recover reasonable costs of cleaning up the contamination. IND. CODE § 13-30-9-2. The ELA is often alleged (along with numerous other claims) in cases involving environmental contamination because it can provide for the recovery of attorney fees. Ind. Code § 13-30-9-3(a)(6). Recently, there have been numerous state and federal cases examining the purpose and extent of liability under the ELA. See City of Gary v. Shafer, 683 F. Supp. 2d 836 (N.D. Ind. 2010); 1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2008 WL 621378 (S.D. Ind. 2008); City of Martinsville v. Cure, 2006 WL 2710628 (S.D.Ind. 2006); Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind. 2009); Neal v. Cure, 937 N.E.2d 1227 (Ind. Ct. App. 2010); City of Indianapolis v. Ertel Manuf. Corp., Cause No. 49F12-0807-PL-033638, slip op. (Marion Sup. Ct., Aug. 20, 2009).

In each of these cases, the ELA plaintiffs argued that ELA liability is broad and ensnares anyone connected with the contamination. For instance, in Cure, the plaintiff argued that defendant property owner could be liable for leasing his property to a dry-cleaner who then released solvents there in its day-to-day operations. According, to the plaintiffs, the landlord could be liable even though he had no involvement with or knowledge of his tenant’s releases. On the other hand, ELA defendants counter that the scope of the ELA statute is narrow and extends only to those parties who actively contaminate. To date, the ELA defendants’ arguments have been most persuasive to both state and federal judges.

A case recently decided by the Marion County Superior Court has again analyzed the ELA’s “caused or contributed” language. Horner Development, LLC v. MBJ Properties, LLP, et al., Cause No. 49F12-0808-PL-037920, slip op. (Marion Sup. Ct., Jan. 10, 2011). In Horner, in addition to analyzing the above-cited case law, the court looked to the legislative history of the strict liability scheme imposed by the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (known as “CERCLA” or “Superfund”) and compared it to the ELA. It noted that Congress had initially drafted CERCLA using the “caused or contributed” language found in the ELA, but removed the causation language from the final bill fearing it would require proof of a “nexus” between the acts of the defendant and the contamination. Because Indiana’s General Assembly included this language when it wrote the ELA in 1997 (seventeen years after Congress enacted CERCLA), it was evident to the court that Indiana’s General Assembly intended ELA liability to extend only to those parties whose acts had caused contamination.

Horner and the numerous cases cited above demonstrate that liability under the ELA only extends to those parties responsible for causing the contamination. Thus, if you are bringing or defending an action for remediating contaminated property under the ELA, it is necessary to carefully analyze which parties are responsible for causing the contamination .