In a ruling dated Wed., Nov. 10, 2004 U.S. District Judge Sarah Evans Barker has ruled that the Indiana Environmental Legal Actions statute, IC 13-30 9, is retroactive.
The case is Commercial Logistics Corp. V. ACF Industries, Inc. From the opinion:
Section 13-30-9-2 of the ELA, Ind. Code § 13-30-9-1 et. seq, provides:Posted by Marcia Oddi at November 12, 2004 02:05 PM“A person may bring an environmental legal action against a person who caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.”* * *[After reviewing The Pantry, Inc. v. Stop-N-Go Foods, Inc., 777 F. Supp. 713, 720 (S. D. Ind.1991)] We can think of no principled reason not to apply the same analysis which allows the retroactive application of UST - analogy to federal environmental law - not to be similarly applicable to the complementary environmental cause of action authorized by the ELA, adopted one year later. * * *[After quoting from Comm’r, Ind. Dep’t of Env’t Mgmt v. Bourbon Mini-Mart, Inc., 741 N.E.2d 361, 370 (Ind. App. 2000)] We agree there are differences [between the ELA and CERCLA], but they are mostly in the details. The liability schemes differ - liability under CERCLA is strict, joint and several, whereas it is fault-based under the ELA - and the scope of the ELA is broader because it includes petroleum releases in addition to hazardous substance releases. Yet, we are drawn to the strong judicial recognition expressed in other cases that the Indiana environmental statutes closely resemble CERCLA in language, spirit and purpose. This view causes us to conclude here that the ELA applies to the litigants in this case. Indeed, the lack of an express retroactivity clause in the ELA has not prevented retroactive applications of that law to redress and remedy pre-enactment pollution, as has been true with CERCLA actions. We believe the Indiana Supreme Court would conclude that the ELA, like the rest of Indiana environmental statutes that were enacted at about the same time, may be applied retroactively without violating the intent of the Indiana General Assembly, despite the absence of an express provision that the statute apply to conduct predating its enactment. Thus, Defendant’s Motion to Dismiss must be denied.
Conclusion. For the reasons outlined above, Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted is hereby DENIED.