58 N.E.3d 241
Ind. Ct. App.2016Background
- Contaminated industrial site at 850 S. Keystone Ave. historically used for bulk petroleum storage; multiple investigations over time revealed soil and groundwater contamination.
- Ownership/operation history: Standard Oil → Union Oil → Hulen (leased to Hoosier Penn) → Wilcher → SSI (lessee then purchaser in 1998); various environmental reports and a recorded Disclosure Document referenced prior contamination.
- Keramida (1994) prepared a Corrective Action Plan identifying significant contamination; no remediation performed then. Marion County Health inspector observed "highly contaminated soil" in May 1996 and told SSI principal Hoosier Penn would remediate — it did not.
- IDEM later ordered investigation (2006) and approved SSI’s remediation plan (2011); SSI incurred remediation costs and is implementing the plan.
- SSI sued former operators (2009) under Indiana’s Environmental Legal Actions Act (ELA) and Petroleum Releases Statute (PRS) seeking recovery of investigation/remediation costs; trial court granted partial summary judgment for defendants, finding the ELA claim time-barred and the PRS did not permit SSI’s recovery; interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which statute of limitations governs an ELA claim? | Ten-year catch-all (I.C. § 34-11-1-2) because the ELA is a cost-recovery/contribution-type statute. | Six-year property-damage period (I.C. § 34-11-2-7) because SSI seeks remediation of its own real property. | Six-year property-damage statute applies; ELA claim is in substance a property-damage claim. |
| When did the ELA claim accrue? | Accrual not triggered until later events; SSI lacked full knowledge until IDEM directives. | Accrual triggered earlier—by July 1998—because inspector reports, visible staining, and Phase I reports put SSI on inquiry notice. | Accrued by July 1998 at the latest under the discovery rule; claim filed in 2009 is time-barred. |
| Does the PRS (I.C. § 13-24-1) allow SSI to recover remediation costs it paid when IDEM did not itself perform the remedial action under §2? | PRS should be read to allow a private party who performs remediation after other responsible parties fail to act within 90 days to recover under §4(b). | PRS limits private recovery to costs the State actually incurred under §2 and passed on under §4(a); here IDEM did not perform §2 action or incur costs. | PRS does not permit SSI to recover because IDEM did not undertake/remit costs under §2; §4(b) applies only where State incurred costs under §2. |
| Whether equitable/absurdity arguments require broader PRS construction | SSI: Narrow reading is absurd and would unfairly force owners to refuse IDEM directives to preserve recovery rights. | Defendants: Statute is clear; other remedies (e.g., ELA) exist for cost recovery; courts may not judicially rewrite clear statutes. | Court rejects SSI’s policy/absurdity argument and enforces the statute’s plain language. |
Key Cases Cited
- Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012) (applied six-year property-damage limitation to an ELA claim by property owners)
- Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2012) (applied ten-year catch-all where trustees without proprietary interest sued under ELA)
- Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2009) (discussed limitations period triggering under USTA context)
- Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind. 2009) (characterized ELA as overlapping with other remediation statutes and addressed recovery of remediation costs)
- Taylor Farm Ltd. Liab. Co. v. Viacom, Inc., 234 F. Supp. 2d 950 (S.D. Ind. 2002) (federal district decision construing ELA as not a classic contribution scheme)
- Martin Oil Mktg. Ltd. v. Katzioris, 908 N.E.2d 1183 (Ind. Ct. App. 2009) (applied objective accrual/notice standard under discovery rule)