SSI argues that their ELA claim is one for contribution rather than property damage and, therefore, the ten-year catch-all statute of limitation set forth in I.C. § 34–11–1–2 applies. Finding this court's decision in Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind.Ct.App.2012), trans. denied, controlling, the trial court concluded that the six-year statute of limitation applies to SSI's ELA claim. On appeal, SSI argues that Peniel is distinguishable and therefore not controlling and that Bernstein v. Bankert, 733 F.3d 190 (7th Cir.2012), in which the Seventh Circuit distinguished Peniel and applied the general, ten-year statute of limitation to an ELA claim, is analogous and persuasive.

(4) Actions for relief against frauds. Pflanz v. Foster, 888 N.E.2d 756 (Ind.2008), explains the application of the ten-year catch-all statute of limitations, and Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind.Ct.App.2012), explains the application of the six-year property damage statute of limitations. In combination, they provide the framework for the resolution of this case.

(4) Actions for relief against frauds. Pflanz v. Foster, 888 N.E.2d 756 (Ind.2008), explains the application of the ten-year catch-all statute of limitations, and Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind.Ct.App.2012), explains the application of the six-year property damage statute of limitations. In combination, they provide the framework for the resolution of this case.

Contribution involves the right of one party, who has paid more than his or her proportionate share and discharged a common liability, to recover proportionately from each of the other parties. See Contribution, BLACK'S LAW DICTIONARY (10th ed. 2014); see also Peniel Grp., Inc. v. Bannon, 973 N.E.2d 575, 581 (Ind. Ct. App. 2012) ("[c]ontribution involves the partial reimbursement of one who has discharged a common liability") (citations omitted). The term "discharge" is defined as "[a]ny method by which a legal duty is extinguished; esp[ecially], the payment of a debt or satisfaction of some other obligation."

The difficulty there is the operation of recently enacted Ind. Code § 34-11-2-11.5, which provides that "a person may seek to recover . . . in an [ELA] . . . to recover costs incurred for . . . a remedial action . . . : [t]he costs incurred not more than ten . . . years before the date the action is brought[.]" Id. § 34-11-2-11.5(b). The question is whether this provision sets a ten-year limit on damages recoverable in an ELA, with the timeliness of the ELA itself governed by other statutes of limitations as set forth in Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008), and Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012), or, instead, supplants those other statutes of limitations and establishes as timely any ELA brought at any time for any portion of response costs incurred within ten years of filing. Bernstein and Peniel, without addressing the question directly, appear to assume the latter reading. 733 F.3d at 216 n.16; 973 N.E.2d at 580 n.4.

If the claim was based on damage to real property, then the court applied the six-year statute of limitations for property damage claims, which begins to run when a claimant (or the claimant's predecessor in interest) knows, or in the exercise of due diligence should have known, of the contamination. Id. at 218-19 (discussing Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012)). On the other hand, if the claim was not based on property damage and instead sought contribution or recovery of environmental cleanup costs, then it was subject to a ten-year "catch-all" statute of limitations contained in Ind. Code § 34-11-1-2. Bernstein, 733 F.3d at 219 (citing Pflanz v. Foster, 888 N.E.2d 756, 758 (Ind. 2008)).

However, the term is also sometimes used more broadly, referring to the completion of corrective action or other remedial activities. See Peniel Grp., Inc. v. Bannon, 973 N.E.2d 575, 577 n.2 (Ind. Ct. App. 2012) ("'Closure' is IDEM's written recognition that a party has demonstrated attainment of specific investigative o[r] remediation objectives for contaminants in a particular area."). The portion of the performance standard on which the Plaintiffs rely states that a facility must be closed in a manner that "[c]ontrols, minimizes, or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste . . . to the ground or surface waters or to the atmosphere[.]"

The Millers' notice of claim was not filed within the period required by the ITCA and thus their claim is barred. See Peniel Grp., Inc. v. Bannon, 973 N.E.2d 575, 583 (Ind. Ct. App. 2012) (holding the appellants' predecessor-in-interest became aware of soil contamination as early as 1997 and certainly no later than 2000, eight years before the action was commenced, and thus that the appellants were barred from bringing their claim), trans. denied.

This is not to say that Farm Tech could not also be liable under the ELA as a party causing or contributing to the pollution. See Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind.Ct.App.2012) (addressing ELA lawsuit brought by landlord against tenant who allegedly contaminated property), trans. denied.