112 N.E.3d 1123
Ind. Ct. App.2018Background
- Site at 318 S. Elkhart Ave.: former iron foundry operated until 2004; City purchased site in 2010 after discovering contamination and performed remediation.
- City (Appellee) filed suit in Feb 2016 against Elkhart Foundry (Appellant) alleging: an Environmental Legal Action (ELA) under Ind. Code § 13-30-9-2, mini-CERCLA claims (Ind. Code ch. 13-25-4), and nuisance.
- Foundry moved for summary judgment on all claims; trial court granted summary judgment for Foundry on mini-CERCLA and nuisance claims, but denied summary judgment on the ELA.
- Central legal dispute on appeal: whether Ind. Code § 34-11-2-11.5 (enacted 2011) functions as a statute of limitations (10-year look-back for recoverable costs) for ELAs, or merely a damages cap, leaving a six-year limitations period under Ind. Code § 34-11-2-7(3).
- Additional procedural facts relevant to mini-CERCLA: Indiana’s mini-CERCLA statutes authorize actions by IDEM; the City relied on the private-attorney-general statute (Ind. Code § 13-30-1-1) to pursue those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether I.C. § 34-11-2-11.5 is a statute of limitations for ELAs | § 34-11-2-11.5 provides a 10-year period tied to incurrence of cleanup costs; City’s 2016 ELA is timely | § 34-11-2-11.5 is only a damages look-back cap; the six-year statute for property injuries (I.C. § 34-11-2-7(3)) controls, so City’s claim is time-barred | Court holds § 34-11-2-11.5 is a statute of limitation: each cleanup cost starts a 10-year window; City’s ELA timely; Foundry’s summary judgment denied on ELA |
| Whether City can sue under mini-CERCLA using the private-attorney-general statute | City says § 13-30-1-1 lets it "stand in IDEM’s shoes" to bring mini-CERCLA claims | Mini-CERCLA authorizes IDEM-only actions; City cannot recover state-liable costs or avoid deposit of awards into State trust fund; notice/prior-opportunity-to-act requirement not satisfied for compelled cleanup claim | Court affirms summary judgment for Foundry on mini-CERCLA claims: City cannot proceed under the private-attorney-general statute as pled |
| Whether the nuisance claim survives statute of limitations as a continuing nuisance | City: persistent contamination is a continuing nuisance that restarts limitations each day | Foundry: activity causing contamination ended >6 years before suit; nuisance claim is time-barred under I.C. § 34-11-2-7(3) | Court holds nuisance claim barred by six-year limitation; persistence of contamination alone does not create a continuing nuisance when causative activity ceased |
Key Cases Cited
- Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind. 2009) (explains legislative purpose of ELA to promote brownfields cleanup and shift costs to responsible parties)
- Schuchman/Samberg Invs., Inc. v. Hoosier Penn Oil Co., 58 N.E.3d 241 (Ind. Ct. App. 2016) (held ELA subject to six-year limitation; contained dicta suggesting § 34-11-2-11.5 is a damages cap)
- KB Home Indiana Inc. v. Rockville TBD Corp., 928 N.E.2d 297 (Ind. Ct. App. 2010) (addresses abatable nuisance requirement where offending activity has ceased)
- Stickdorn v. Zook, 957 N.E.2d 1014 (Ind. Ct. App. 2011) (describes continuing/recurring nuisance doctrine where ongoing wrongful conduct restarts limitations)
- Lilly Indus., Inc. v. Health-Chem Corp., 974 F. Supp. 702 (S.D. Ind. 1997) (federal district court holding that buyer cannot sue prior owner for nuisance based on activities on same property that harmed that property)