If you are the owner of environmentally contaminated property in Indiana, how long do you have to bring a claim in order to compel those that caused or contributed to the contamination to pay for the costs of cleanup? The answer, says the Indiana Court of Appeals, is ten years from the incurrence of each new dollar of cleanup costs. Elkhart Foundry & Mach. Co. v. City of Elkhart Redevelopment Comm'n for City of Elkhart, 112 N.E.3d 1123 (Ind. Ct. App. 2018). 

Not only does a plaintiff have ten years to recover that first dollar of cleanup costs, but a new ten-year period starts to run with the incurrence of each additional dollar of costs. Thus, if a property owner incurred a cleanup cost in 2022, it has until year 2032 to recover those costs. What if I don't bring my claim in 2032, but rather 2033? Though a property owner would lose the opportunity to recover 2022 costs, it would still be able to recover costs incurred in 2023, 2024, 2025, and beyond. Environmental cleanups take a long time, and knowledge of contamination is not relevant to the analysis. In the case, the Court rejected the defendant's claim that a plaintiff is barred if it, or anyone in the historic chain of title, was previously aware of the contamination. Since an Environmental Legal Action (an "ELA") under Indiana law is an action for the recovery of cleanup costs, and not one for damage to real property, the Court stated that "it would be counterintuitive for the limitation period to start running when the plaintiff merely learns of the contamination, as opposed to when the plaintiff actually incurs a cleanup cost."

If you are the owner of environmentally contaminated property, you have rights to recover cleanup costs from those that caused or contributed to the contamination--in some cases many years after the events in question--and you should seek counsel to be advised of your options.   

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.