Vaidik, C.J.
Case Summary
This case concerns the efforts of the City of Elkhart and its Redevelopment Commission (“the City”) to rehabilitate a former industrial site situated along the Elkhart River in the city’s downtown. The City has sued Elkhart Foundry & Machine Co. (“the Foundry”), which operated on the site until 2004. One of the statutes relied upon by the City is Indiana Code section 13-30-9-2, which took effect in 1998 and which, generally stated, provides that a person who cleans up a contaminated site can bring an “environmental legal action” (ELA) for the recovery of cleanup costs against a person who contributed to the contamination.
At issue in this appeal is the meaning of a related statute, Indiana Code section 34-11-2-11.5, which took effect in 2011 and provides that the plaintiff in an ELA can seek to recover “[t]he costs incurred not more than ten (10) years before the date the action is brought, even if the person or any other person also incurred costs more than ten (10) years before the date the action is brought.” The City contends that this is a statute of limitation requiring that an ELA be filed within ten years of the incurrence of the cost(s) sought to be recovered and that its ELA was timely under this provision. The Foundry, on the other hand, argues that Section 34-11-2-11.5 is merely a cap on the damages recoverable in an ELA. According to the Foundry, an ELA is subject to the six-year limitation period established by Indiana Code section 34-11-2-7(3) for “[a]ctions for injuries to property other than personal property,” and the City’s ELA is untimely under this provision. The trial court, in an excellent, 23-page order, agreed with the City that Section 34-11-2-11.5 is a statute of limitation and that its ELA was timely filed. We affirm the trial court in this and all other respects.
….
By stating that an ELA plaintiff can recover only “costs incurred not more than ten (10) years before the date the action is brought,” I.C. § 34-11-2-11.5(b), the statute plainly says something about “the time frame within which an ELA claim must be brought” and “the events that trigger the running of that period,” see Schuchman/Samberg Invs., 58 N.E.3d at 246 n.5. Specifically, the statute means that if a person wants to recover a particular cleanup cost, they must bring an ELA within ten years of incurring the cost. Stated differently, as soon as a person incurs a cleanup cost, the ten-year period starts to run with respect to that cost. Therefore, while it is true that Section 34-11-2-11.5 does not include typical “statute of limitation” language stating when an action “must be brought” (see, e.g., Ind. Code § 34-11-2-1) or “must be commenced” (see, e.g., Ind. Code § 34-11-2-5), it has the same effect.
If the language of Section 34-11-2-11.5 left any doubt about whether the legislature intended to create a statute of limitation for ELAs, it was resolved by the legislature’s decision to house the provision in Chapter 2 of Article 34-11 of the Indiana Code. When the legislature created Article 34-11 in 1998, it gave it the heading “Limitation of Actions.” See P.L. 1-1998, § 6. In turn, it gave Chapter 34-11-2 the heading “Specific Statutes of Limitation,” and it filled the chapter with statutes of limitation. Id. We are aware that these headings “are not part of the law and may be altered by the lawful compilers,” Ind. Code § 1- 1-1-5(f), but we are also aware that the legislature often omits headings altogether, so its inclusion of headings here is worth noting. In any event, even if we disregard the headings the legislature gave to Article 34-11 and Chapter 34-11-2, the fact that Section 34-11-2-11.5 was placed in Chapter 34-11-2, alongside numerous statutes of limitation, tells us that the legislature intended Section 34-11-2-11.5 to be read as a statute of limitation.
The Foundry argues that if Section 34-11-2-11.5 is treated as a statute of limitation, “[a] plaintiff could get a new ten-year limitations period, stretching indefinitely into time, just by spending another dollar on alleged response costs.” Appellant’s Reply Br. p. 20. This is true, but it is also consistent with the language of the statute. Specifically, subsection (b)(1) contemplates not only the incurrence of cleanup costs during the ten years immediately preceding the filing of the ELA but also the possibility that the plaintiff “incurred costs more than ten (10) years before the date the action is brought.” Ind. Code § 34- 11-2-11.5(b)(1). In other words, the legislature did not intend for the ten-year limitation period to start running, once and for all, when the plaintiff incurs its “first” cleanup cost. Rather, a new ten-year period starts to run with the incurrence of each additional cleanup cost. Of course, if the plaintiff waits more than ten years from the incurrence of certain cleanup costs to file its ELA, those costs will not be recoverable. By creating this ten-year cutoff, the legislature gave plaintiffs a significant incentive to (1) expedite cleanups and (2) file suit within ten years of the incurrence of the first cost. This scheme is also consistent with the purpose of allowing ELAs in the first place: to encourage cleanup (which leads to redevelopment and economic renewal) by shifting the financial burden to the parties responsible for creating contamination. Cooper Indus., 899 N.E.2d at 1284. The longer a contaminated site sits vacant, the more important it becomes to allow a suit for the recovery of cleanup costs.
….In short, a cause of action for the recovery of cleanup costs does not accrue until a cleanup cost has been incurred. Second, if we were to agree with the Foundry, a plaintiff would recover ten years’ worth of cleanup costs (as contemplated by Section 34-11-2-11.5) only in certain limited circumstances. The Foundry offers the hypothetical of a plaintiff who learns of contamination and begins incurring cleanup costs but does not learn until four or more years later that a particular defendant contributed to the contamination. The Foundry does not give us any reason to believe that the legislature had this scenario in mind when it enacted Section 34-11-2-11.5.
For these reasons, we conclude that the trial court correctly concluded that Section 34-11-2-11.5 is the ELA statute of limitation and correctly denied the Foundry’s motion for summary judgment as to the City’s ELA.
….
…As far as we can tell, no Indiana court has ever been asked to decide whether a plaintiff can use the private-attorney-general statute to bring a claim under any part of mini-CERCLA. We do not reach that broad issue either—we hold only that the specific claims brought by the City in this case cannot proceed.
….
…Here, on the other hand, it is undisputed that the activity that allegedly caused the contamination ceased more than six years before the City filed suit. Therefore, the mere persistence of contamination at the site does not amount to a “continuing nuisance” under Stickdorn, and the trial court did not err by granting summary judgment in favor of the Foundry on the City’s nuisance claim.
Affirmed.
Pyle, J., and Barnes, Sr. J., concur.