A recent Indiana Court of Appeals decision has made it a little tougher for a former land owner to escape liability under Indiana’s Environmental Legal Actions statute (ELA). On September 19, 2014, the Court of Appeals reversed a prior trial court’s grant of summary judgment in favor of a prior land owner, thus pulling them back into the lawsuit for further proceedings in the case of JDN Properties, LLC v. VanMeter Enterprises, Inc., No. 43A05-1312-PL-586.
The issue decided by the Court of Appeals in JDN Properties was whether there was evidence which would allow a judge or jury to find that VanMeter, the former owner of the contaminated JDN property, “caused or contributed” to the release of the hazardous substance.
The ELA holds that “[a] person may, regardless of whether the person 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, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.”
The evidence at the trial level established that the contaminated property contained two 250-gallon underground storage tanks of petroleum heating fuel. It was also established that VanMeter hired a contractor to move water lines because a well on the property was too contaminated with petroleum to be useable. VanMeter was also aware that the fuel level in the storage tanks was decreasing faster than should have been expected from normal usage.
Despite there being no evidence of direct knowledge of the contamination, the Court of Appeals held that VanMeter could still be held responsible under the ELA because of the inference of its knowledge and failure to show that the contamination came from a time other than when it held the property. Through this decision, the Court of Appeals has made it even more difficult for a prior landowner to escape an ELA claim.