CHAPTER 5. ENVIRONMENTAL REMEDIATION REVOLVING LOAN PROGRAM
IC 13-19-5
Chapter 5. Environmental Remediation Revolving Loan Program
IC 13-19-5-1
Program establishment and purpose
Sec. 1. The environmental remediation revolving loan program isestablished to assist in the remediation of brownfields to encouragethe rehabilitation, redevelopment, and reuse of real property byproviding grants, loans, forgivable loans, or other financial assistanceto political subdivisions to conduct any of the following activities:
(1) Identification and acquisition of brownfields within apolitical subdivision as suitable candidates for redevelopmentfollowing the completion of remediation activities.
(2) Environmental assessment of identified brownfields,including assessment of petroleum contamination, and otheractivities necessary or convenient to complete theenvironmental assessments.
(3) Remediation activities conducted on brownfields, including:
(A) remediation of petroleum contamination; and
(B) other activities necessary or convenient to completeremediation activities conducted on brownfields, includingclearance of real property.
(4) Other activities in conjunction with assessment andremediation activities necessary or convenient to prepare abrownfield for redevelopment.
As added by P.L.59-1997, SEC.13. Amended by P.L.119-1999,SEC.11; P.L.235-2005, SEC.171; P.L.221-2007, SEC.7.
IC 13-19-5-2
Establishment of fund; sources of revenue; investments
Sec. 2. (a) The environmental remediation revolving loan fund isestablished for the purpose of providing money for loans and otherfinancial assistance, including grants, to or for the benefit of politicalsubdivisions under this chapter. The authority shall administer, hold,and manage the fund.
(b) Expenses of administering the fund shall be paid from moneyin the fund.
(c) The fund consists of the following:
(1) Appropriations made by the general assembly.
(2) Grants and gifts intended for deposit in the fund.
(3) Repayments of loans and other financial assistance,including premiums, interest, and penalties.
(4) Proceeds from the sale of loans and other financialassistance under section 9 of this chapter.
(5) Interest, premiums, gains, or other earnings on the fund.
(6) Money transferred from the hazardous substances responsetrust fund under IC 13-25-4-1(a)(9).
(7) Fees collected under section 7 of this chapter.
(d) The authority shall invest the money in the fund not currentlyneeded to meet the obligations of the fund in accordance with an
investment policy adopted by the authority. Interest, premiums,gains, or other earnings from these investments shall be credited tothe fund.
(e) As an alternative to subsection (d), the authority may invest orcause to be invested all or a part of the fund in a fiduciary accountwith a trustee that is a financial institution. Notwithstanding anyother law, any investment may be made by the trustee in accordancewith at least one (1) trust agreement or indenture. A trust agreementor indenture may allow disbursements by the trustee to:
(1) the authority;
(2) a political subdivision;
(3) the Indiana bond bank; or
(4) any person to which the authority, the Indiana bond bank, ora political subdivision is obligated, including a trustee that is afinancial institution for a grantor trust;
as provided in the trust agreement or indenture. The budget agencymust approve any trust agreement or indenture before its execution.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.172; P.L.221-2007, SEC.8.
IC 13-19-5-3
Duties of authority; immunity of authority
Sec. 3. (a) The authority shall do the following under this chapter:
(1) Be responsible for the management of all aspects of theprogram.
(2) Prepare and provide program information.
(3) Negotiate the negotiable aspects of each financial assistanceagreement and submit the agreement to the budget agency forapproval.
(4) Sign each financial assistance agreement.
(5) Review each proposed project and financial assistanceagreement to determine if the project meets the credit,economic, or fiscal criteria established by guidelines of theauthority.
(6) Periodically inspect or cause to be inspected projects todetermine compliance with this chapter.
(7) Conduct or cause to be conducted an evaluation concerningthe financial ability of a political subdivision to:
(A) pay a loan or other financial assistance and otherobligations evidencing loans or other financial assistance, ifrequired to be paid; and
(B) otherwise comply with terms of the financial assistanceagreement.
(8) Evaluate or cause to be evaluated the technical aspects ofthe political subdivision's:
(A) environmental assessment of potential brownfieldproperties;
(B) proposed remediation; and
(C) remediation activities conducted on brownfieldproperties. (9) Inspect or cause to be inspected remediation activitiesconducted under this chapter.
(10) Act as a liaison to the United States EnvironmentalProtection Agency regarding the program.
(11) Be a point of contact for political subdivisions concerningquestions about the program.
(12) Enter into memoranda of understanding, as necessary, withthe department and the budget agency concerning theadministration and management of the fund and the program.
(b) The authority may do the following under this chapter:
(1) Undertake activities to make private environmentalinsurance products available to encourage and facilitate thecleanup and redevelopment of brownfield properties.
(2) Enter into agreements with political subdivisions to manageany of the following conducted on brownfield properties:
(A) Environmental assessment activities.
(B) Environmental remediation activities.
(c) The authority may:
(1) negotiate with;
(2) select; and
(3) contract with;
one (1) or more insurers to provide insurance products as describedin subsection (b)(1).
(d) Notwithstanding IC 13-23, IC 13-24-1, and IC 13-25-4, theauthority is not liable for any contamination addressed by theauthority under an agreement under subsection (b)(2) unless existingcontamination on the brownfield is exacerbated due to grossnegligence or intentional misconduct by the authority.
(e) For purposes of subsection (d), reckless, willful, or wantonmisconduct constitutes gross negligence.
(f) The authority is entitled to the same governmental immunityafforded a political subdivision under IC 34-13-3-3(22) for any acttaken to investigate or remediate hazardous substances, petroleum,or other pollutants associated with a brownfield under an agreementunder subsection (b)(2).
As added by P.L.59-1997, SEC.13. Amended by P.L.28-2004,SEC.121; P.L.235-2005, SEC.173; P.L.221-2007, SEC.9;P.L.121-2009, SEC.3.
IC 13-19-5-4
Repealed
(Repealed by P.L.235-2005, SEC.212.)
IC 13-19-5-5
Repealed
(Repealed by P.L.235-2005, SEC.212.)
IC 13-19-5-6
Employment; compensation; immunity
Sec. 6. (a) The authority may do the following: (1) Employ:
(A) fiscal consultants;
(B) engineers;
(C) bond counsel;
(D) other special counsel;
(E) accountants; and
(F) any other consultants, employees, and agents;
that the authority considers necessary to carry out the purposesof this chapter.
(2) Fix and pay the compensation of persons employed undersubdivision (1) from money available in the fund or otherwisemade available for the program.
(3) Provide services to a political subdivision in connectionwith a loan or other financial assistance, including advisory andother services.
(b) Notwithstanding any other law, the authority, program, orfund, or any person or agent acting on behalf of the authority orprogram, is not liable in damages or otherwise to any politicalsubdivision for any act or omission in connection with a loan or otherfinancial assistance, or any application, service, or other undertaking,allowed by or taken under this chapter.
(c) No direction given by or service or other undertaking allowedor taken under this chapter by the authority is a defense for orotherwise excuses any act or omission of a political subdivisionotherwise required or imposed by law upon a political subdivision.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.174.
IC 13-19-5-7
Services to persons; fees
Sec. 7. (a) The authority may provide services to a person (asdefined in IC 13-11-2-158(a)) in connection with financialassistance, technical assistance, and liability clarification, and mayassess and collect a fee for:
(1) services provided to offset the costs of providing theservices; and
(2) costs and services incurred in the review or consideration ofan application for a proposed loan or other financial assistanceto or for the benefit of a political subdivision under this chapter,regardless of whether the application is approved or rejected.
(b) A political subdivision may pay fees charged under thissection.
(c) The authority shall adopt guidelines for the assessment andcollection of fees under this section.
(d) Fees collected under this section shall be deposited in thefund.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.175; P.L.221-2007, SEC.10.
IC 13-19-5-8 Priority ranking system for loans and financial assistance
Sec. 8. The authority may use a priority ranking system in makingloans and providing other financial assistance under this chapterbased on the following:
(1) Socioeconomic distress in an area, as determined by thepoverty level and unemployment rate in the area.
(2) The technical evaluation under section 3(8)(A) and 3(8)(B)of this chapter.
(3) Other factors determined by the authority, including thefollowing:
(A) The number and quality of jobs that would be generatedby a project.
(B) Housing, recreational, and educational needs ofcommunities.
(C) Any other factors the authority determines will assist inthe implementation of this chapter.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.176; P.L.221-2007, SEC.11.
IC 13-19-5-9
Loans and financial assistance; interest; sale of loans; pledges ofloans
Sec. 9. (a) A loan or other financial assistance must be used for atleast one (1) of the purposes under section 1 of this chapter and maybe used for any of the following purposes:
(1) To:
(A) establish guaranties, reserves, or sinking funds,including guaranties, reserves, or sinking funds to secure andpay, in whole or in part, loans or other financial assistancemade from sources other than the fund (including financialinstitutions) for a purpose permitted by this chapter; or
(B) provide interest subsidies.
(2) To pay financing charges, including interest on the loan orother financial assistance during remediation and for areasonable period after the completion of remediation.
(3) To pay consultant, advisory, and legal fees, and any othercosts or expenses resulting from:
(A) the assessment, planning, or remediation of abrownfield; or
(B) the loan or other financial assistance.
(b) The authority shall establish the interest rate or parameters forestablishing the interest rate on each loan made under this chapter,including parameters for establishing the amount of interestsubsidies.
(c) The authority, in setting the interest rate or parameters forestablishing the interest rate on each loan, may take into account thefollowing:
(1) Credit risk.
(2) Environmental enforcement and protection.
(3) Affordability. (4) Other fiscal factors the authority considers relevant,including the program's cost of funds and whether the financialassistance provided to a particular political subdivision istaxable or tax exempt under federal law.
Based on the factors set forth in subdivisions (1) through (4), morethan one (1) interest rate may be established and used for loans orother financial assistance to different political subdivisions or fordifferent loans or other financial assistance to the same politicalsubdivision.
(d) Not more than fifty percent (50%) of the money available inthe fund during a state fiscal year may be loaned or otherwiseprovided to any one (1) political subdivision during that fiscal year.
(e) Before a political subdivision may receive a loan or otherfinancial assistance, including grants, from the fund, a politicalsubdivision must submit the following:
(1) Documentation of community and neighborhood commentconcerning the use of a brownfield on which remediationactivities will be undertaken after remediation activities arecompleted.
(2) A plan for repayment of the loan or other financialassistance, if applicable.
(3) An approving opinion of a nationally recognized bondcounsel if required by the authority.
(4) A summary of the environmental objectives of the proposedproject.
(f) A political subdivision that receives a loan or other financialassistance from the fund shall enter into a financial assistanceagreement. A financial assistance agreement is a valid, binding, andenforceable agreement of the political subdivision.
(g) The authority may sell or assign:
(1) loans or evidence of other financial assistance; and
(2) other obligations of political subdivisions evidencing theloans or other financial assistance from the fund;
at any price and on terms acceptable to the authority. Proceeds ofsales or assignments under this subsection shall be deposited in thefund. A sale or an assignment under this subsection does not createa liability or an indebtedness of the state or the authority except, inthe case of the authority, strictly in accordance with the sale orassignment terms.
(h) The authority may pledge loans or evidences of other financialassistance and other obligations of political subdivisions evidencingthe loans or other financial assistance from the fund to secure otherloans or financial assistance from the fund to or for the benefit ofpolitical subdivisions. The terms of a pledge under this subsectionmust be approved by the budget agency. Notwithstanding any otherlaw, a pledge of property made by the authority and approved by thebudget agency under this subsection is binding from the time thepledge is made. Revenues, other money, or other property pledgedand then received are immediately subject to the lien of the pledgewithout any further act. The lien of a pledge is binding against all
parties having claims of any kind in tort, contract, or otherwiseagainst the authority, a trustee, or the fund, regardless of whether theparties have notice of a lien. A resolution, an indenture, or otherinstrument by which a pledge is created is not required to be filed orrecorded, except in the records of the authority. An action taken toenforce a pledge under this subsection and to realize the benefits ofthe pledge is limited to the property pledged. A pledge under thissubsection does not create a liability or an indebtedness of the stateor the authority except, in the case of the authority, strictly inaccordance with the pledge terms.
As added by P.L.59-1997, SEC.13. Amended by P.L.119-1999,SEC.12; P.L.235-2005, SEC.177; P.L.221-2007, SEC.12.
IC 13-19-5-10
Political subdivision in default on loan or financial assistance
Sec. 10. Notwithstanding any other law and if provided in afinancial assistance agreement, any state department or state agency,including the treasurer of state, that is the custodian of moneypayable to a political subdivision, other than money in payment forgoods or services provided by the political subdivision, after writtennotice from the budget director that the political subdivision is indefault on the payment of principal or interest on a loan or evidenceof other financial assistance, may:
(1) withhold payment of money from that political subdivision;and
(2) pay over the money to the authority, a trustee that is afinancial institution for a grantor trust, or the Indiana bondbank, as directed by the chairman of the authority, for thepurpose of curing the default.
However, the withholding of payment from the political subdivisionand payment to the authority, a trustee, or the Indiana bond bank maynot adversely affect the validity of the defaulted loan or otherfinancial assistance.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.178.
IC 13-19-5-11
Adoption of guidelines
Sec. 11. The authority may adopt guidelines without complyingwith IC 4-22-2 to govern the administration of this chapter.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.179.
IC 13-19-5-12
Negotiation of loans and financial assistance; issuance and sale ofnotes
Sec. 12. (a) Notwithstanding any other law, a political subdivisionmay borrow money from the authority by negotiating a loan or otherfinancial assistance directly and without complying withrequirements for the competitive sale of bonds, notes, or other
obligations or evidences of indebtedness. A political subdivisionmust observe any existing contractual commitments to bondholdersor other persons when entering into a financial assistance agreement.
(b) Notwithstanding any other law, a political subdivision mayissue and sell its notes, the principal and accrued interest on whichshall be paid with proceeds from the issuance of its bonds or otheravailable money at the time the notes are due. The:
(1) notes must be issued in accordance with a resolution or anordinance; and
(2) proceeds must be used to carry out this chapter.
(c) A political subdivision that issues notes under subsection (b)may renew or extend the notes on terms agreed to with the authority.The authority may purchase and sell the renewed or extended notes.Accrued interest on the date of renewal or extension may be paid oradded to the principal amount of the note being renewed or extended.
(d) The notes issued by a political subdivision under subsection(b), including renewals or extensions, mature in the amounts and atthe times, not exceeding four (4) years from the date of originalissuance, that are agreed to by the political subdivision and theauthority.
(e) Compliance with subsection (b) constitutes full authority fora political subdivision to issue notes and sell the notes to theauthority. The political subdivision is not required to comply withany other law applicable to the authorization, approval, issuance, andsale of its notes. The notes are valid and binding obligations of thepolitical subdivision and are enforceable in accordance with theterms of the notes and payable solely from the sources specified inthe resolution or ordinance authorizing the issuance of the notes. Ifthe political subdivision issues bonds, all or part of the proceeds ofwhich will be used to pay the notes issued under subsection (b),neither this section nor the actual issuance by a political subdivisionof its notes under subsection (b) relieves the political subdivision ofits obligation to comply with the statutory requirements for theissuance of its bonds.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.180.
IC 13-19-5-13
Leveraged loan program and financial assistance programs;agreements
Sec. 13. (a) As an alternative to making loans or providing otherfinancial assistance to political subdivisions, the authority may usethe money in the fund to provide a leveraged loan program and otherfinancial assistance programs to or for the benefit of politicalsubdivisions, including using money in the fund to enhance apolitical subdivision's obligations under this chapter by:
(1) granting money to:
(A) be deposited in:
(i) a capital or reserve fund established under IC 4-4-11 oranother law, including this chapter; or (ii) any account established within the fund; or
(B) provide interest subsidies;
(2) paying bond insurance premiums, reserve insurancepremiums, or credit enhancement, liquidity support,remarketing, or conversion fees, or other similar fees or costsfor obligations of a political subdivision or for bonds or otherobligations issued by a trustee that is a financial institution fora grantor trust, the authority, or the Indiana bond bank if creditmarket access is improved or interest rates are reduced; or
(3) guaranteeing all or a part of obligations issued by politicalsubdivisions or of bonds or other obligations issued by a trusteethat is a financial institution for a grantor trust, the authority, orthe Indiana bond bank.
(b) The authority may enter into any agreements with:
(1) a trustee that is a financial institution for a grantor trust;
(2) the Indiana bond bank; or
(3) political subdivisions;
to carry out this chapter.
(c) A guarantee of obligations or bonds under subsection (a)(3)must be limited to money in the fund. A guarantee under subsection(a)(3) does not create a liability or an indebtedness of the state or ofthe authority except, in the case of the authority, strictly inaccordance with the guarantee terms.
(d) Notwithstanding any other law, the authority is considered aqualified entity for purposes of IC 5-1.5.
As added by P.L.59-1997, SEC.13. Amended by P.L.235-2005,SEC.181.
IC 13-19-5-14
Issuance and sale of revenue bonds, notes, and obligations
Sec. 14. (a) Notwithstanding any other law and in addition to anyother law, including IC 4-4, the authority may issue, guarantee, andsell its revenue bonds, notes, and other obligations and guaranteeloans and other financial assistance in connection with the programand the fund. The revenue bonds, notes, and other obligations mustbe issued in accordance with a resolution of the authority on termsor within parameters established by the authority, and proceeds mustbe used to carry out one (1) or more of the purposes of this chapter.
(b) Compliance with this section constitutes full authority for theauthority to issue and guarantee its revenue bonds, notes, and otherobligations, to guarantee loans and other financial assistance, and tosell the revenue bonds, notes, and other obligations at public orprivate negotiated sale on terms or within parameters established bythe authority. The authority is not required to comply with any otherlaw applicable to the authorization, approval, issuance, guarantee,and sale of its revenue bonds, notes, and other obligations andguarantee loans and other financial assistance. The revenue bonds,notes, and other obligations, including guarantees, issued by theauthority in connection with the program and the fund are valid andbinding obligations of the authority and are enforceable in
accordance with their terms and payable solely from the sourcesspecified in the resolution authorizing their issuance, guarantee, andsale. The authority's revenue bonds, notes, and other obligations,including guarantees, do not create a liability or debt of the state.
As added by P.L.59-1997, SEC.13.
IC 13-19-5-15
Forgivable loans to political subdivisions
Sec. 15. (a) The authority may deposit appropriations or othermoney received under this chapter after June 30, 1999, into anaccount of the fund. The authority may use money deposited in theaccount to award forgivable loans to political subdivisions forremediation or other brownfield redevelopment activities. Theauthority shall, in the manner provided by section 11 of this chapter,adopt guidelines to establish a political subdivision's eligibility fora forgivable loan. The guidelines may provide priority for projectsthat:
(1) involve abandoned gas stations or underground storage tankissues; or
(2) are located within one-half (0.5) mile of any of thefollowing:
(A) A child care center (as defined by IC 12-7-2-28.4).
(B) A child care home (as defined by IC 12-7-2-28.6).
(C) A child caring institution (as defined by IC 12-7-2-29).
(D) A school age child care program (as defined byIC 12-17-12-5).
(E) An elementary or a secondary school attended bystudents in kindergarten or grades 1 through 12.
(b) Not more than twenty percent (20%) of the total amount ofloans provided for a project under this chapter may be in the form ofa forgivable loan.
(c) The financial assistance agreement for a project to be financedwith a forgivable loan must specify economic development orredevelopment goals for the project that must be achieved before thepolitical subdivision will be released from its obligation to repay theforgivable loan.
As added by P.L.119-1999, SEC.13. Amended by P.L.109-2001,SEC.2; P.L.235-2005, SEC.182.
IC 13-19-5-16
Repealed
(Repealed by P.L.235-2005, SEC.212.)
IC 13-19-5-17
Criminal penalty for application misstatement
Sec. 17. A person who, with intent to defraud, knowingly orintentionally makes a material misstatement in connection with anapplication for a loan or other financial assistance from the fundcommits a Class D felony.
As added by P.L.137-2007, SEC.16.