The Problem: Contaminated property harms cities and their citizens.

Contaminated property is a major problem for Indiana cities and their citizens. A 2022 report lists Indiana as the state “with the most dirty waterways,” including “24,395 total miles of rivers and streams listed as impaired for swimming and recreation.” This means the waters “have so much fecal bacteria and other contaminants that they are not safe for swimming, tubing, or other water contact activities.” Similarly, U.S. News lists Indiana as the second worst state for pollution health risk and the fourth worst state for toxic chemical pollution generated.

Unsurprisingly, people do not want to live in contaminated cities. Recent Gallup polling confirms that people care deeply about this issue:

Environmental ProblemPercent of people who personally worry a “great deal” or a “fair amount” (%)
Quality of the environment73
Pollution of rivers, lakes, and reservoirs81
Air pollution70
Pollution of drinking water80
Contamination of soil and water by toxic waste77

 

In addition, cities with contaminated property, which often is abandoned, are missing potential tax revenue. A recent study found that cleaning up contaminated property can result in millions of dollars of increased residential property tax revenue that exceeds the costs of the cleanup. Thus, cleaning up contaminated property benefits cities and their citizens.

A Solution: Indiana’s ELA statute.

An Indiana law, the Environmental Legal Action (ELA) statute, can be used to solve cities’ contaminated property woes. Under the ELA, a city (or any owner of contaminated property) can sue “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.” Ind. Code § 13-30-9-2. Additionally, a city can recover its attorney’s fees if it is successful in the litigation. Ind. Code § 13-30-9-3. Thus, the ELA, which may be used in conjunction with Indiana’s Declaratory Judgment Act, Indiana Code § 34-14-1, can be a potent tool to recover past and future costs of cleaning up contaminated property.

Implementing the Solution: Hiring a qualified environmental attorney.

To use the ELA to recover the costs of cleaning up contaminated property, a city or owner of property will want to hire a qualified environmental attorney who can navigate the complexities inherent to environmental litigation. There are certain steps a city will want to take pre-suit and during litigation to maximize the likelihood of success. Further, depending on the city’s desired outcome, a qualified environmental lawyer will best position the matter for a potential settlement pre-suit, settlement during litigation or trial.

Jackson Schroeder is an associate at Bose McKinney & Evans who focuses his practice on environmental and insurance litigation. If you are an owner of contaminated property, please contact Jackson at jschroeder@boselaw.com or 317-684-5159.

You also can contact Brad Sugarman, partner and chair of the Bose McKinney & Evans Environmental Group, at bsugarman@boselaw.com.