CHAPTER 13. CORRECTIVE ACTIONS
IC 13-23-13
Chapter 13. Corrective Actions
IC 13-23-13-1
Issuance of orders or corrective actions
Sec. 1. (a) The commissioner may, under rules adopted underIC 13-23-1-2:
(1) issue an order under IC 13-14-2-7 or IC 4-21.5-4; or
(2) proceed under IC 13-14-2-6;
to require the owner or operator of an underground storage tank toundertake corrective action with respect to any release of a regulatedsubstance.
(b) If the commissioner determines that the corrective action willbe done properly and promptly by the owner or operator of theunderground storage tank from which the release occurs, thecommissioner may enter into an agreed order with the owner oroperator to implement necessary corrective action.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-2
Action by commissioner
Sec. 2. The commissioner, under rules adopted underIC 13-23-1-2, may undertake corrective action with respect to anyrelease of a regulated substance into the environment from anunderground storage tank if:
(1) that action is necessary, in the judgment of thecommissioner, to protect human health and the environment;and
(2) at least one (1) of the following conditions exists:
(A) A person cannot be found not later than ninety (90) daysafter a suspected or confirmed release is identified (or ashorter time necessary to protect human health and theenvironment) who is:
(i) an owner or operator of the underground storage tank;
(ii) subject to the rules concerning corrective action; and
(iii) capable of properly carrying out corrective action withrespect to the release.
(B) An existing situation requires prompt action by thecommissioner under this section to protect human health andthe environment.
(C) The cost of corrective action at the site of anunderground storage tank exceeds the amount of financialresponsibility required under IC 13-23-1-2(c)(6),IC 13-23-4-4, and IC 13-23-4-5 and, considering the class orcategory of underground storage tank from which the releaseoccurred, expenditures by the state are necessary to ensurean effective corrective action.
(D) The owner or operator of the underground storage tankhas failed or refused to comply with an order of thecommissioner or a judgment of a court of competent
jurisdiction under section 1 of this chapter to take correctiveaction with respect to the release.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-3
Exposure assessment
Sec. 3. A corrective action undertaken or required under thischapter may include an exposure assessment. The cost of anyexposure assessment undertaken under this chapter may be recoveredunder section 8 of this chapter as part of the costs of correctiveaction.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-4
Priority of orders and corrective actions
Sec. 4. In:
(1) issuing orders requiring corrective action under section 1 ofthis chapter; or
(2) undertaking corrective action under section 2 of thischapter;
the commissioner shall give priority to releases of regulatedsubstances from underground storage tanks that pose the greatestthreat to human health and the environment.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-5
Limited corrective actions; streamlined administrative procedures
Sec. 5. In issuing orders requiring corrective action under section1 of this chapter or undertaking corrective action under section 2 ofthis chapter the commissioner may:
(1) require only a limited form of corrective action; and
(2) implement streamlined administrative procedures;
with respect to a release of a regulated substance from anunderground storage tank that, in the judgment of the commissioner,poses little or no immediate threat to human health or to theenvironment.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-5.5
Intentional surface spill or overfill; contribution to correctiveaction costs claim
Sec. 5.5. (a) Notwithstanding any other provision of this chapter,a person who is not an owner or operator of an underground storagetank is liable to the state only for corrective action to address asurface spill or overfill of a regulated substance from theunderground storage tank that is intentionally caused by the personduring the delivery of the regulated substance into the undergroundstorage tank.
(b) A person who is liable for corrective action under subsection(a) is subject to a claim for contribution to corrective action costs
arising solely from the surface spill or overfill by a person describedin section 8(b)(1) or 8(b)(2) of this chapter. Except as otherwiseprovided in subsection (c) and (d), an action for contribution underthis section may be brought in the same manner and is subject to thesame provisions as an action brought under section 8(b) of thischapter.
(c) Before a person brings a contribution action under this section,the person must provide written notice of intent to bring the actionby certified mail to:
(1) the department; and
(2) each person allegedly responsible for the surface spill oroverfill that occurred during the delivery of a regulatedsubstance into the underground storage tank.
(d) A person that provides notice under subsection (c) may notbring a contribution action if:
(1) the department commences an administrative proceeding ora civil action concerning the alleged surface spill or overfill notlater than ninety (90) days after receiving notice undersubsection (c)(1); or
(2) the person who receives the notice under subsection (c)(2)agrees in writing, within ninety (90) days after receipt of thenotice, to remediate the surface spill or overfill in accordancewith the state's rules governing spills and overfills.
As added by P.L.212-1999, SEC.6.
IC 13-23-13-6
Use of funds for corrective actions; underground petroleumstorage tanks
Sec. 6. The commissioner, under rules adopted underIC 13-23-1-2, may use money in the petroleum trust fund to pay thefollowing costs and expenses associated with underground petroleumstorage tanks:
(1) Costs incurred for corrective action conducted undercooperative agreements entered into between the state and theAdministrator of the United States Environmental ProtectionAgency under Section 9003(h)(7) of the federal Solid WasteDisposal Act (42 U.S.C. 6991b(h)(7)), in accordance with theprovisions of the cooperative agreements.
(2) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken underthis chapter.
(B) Enforcement of this article.
(3) Expenses incurred by the state under section 8 of thischapter in recovering the costs of corrective actions undertakenunder section 2 of this chapter.
(4) Administrative expenses and personnel expenses incurredby the state in carrying out this article.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-7 Use of funds for corrective actions; nonpetroleum undergroundstorage tanks
Sec. 7. The commissioner, under rules adopted underIC 13-23-1-2, may use money in the hazardous substances responsetrust fund to pay the following expenses associated with undergroundstorage tanks used to contain regulated substances other thanpetroleum:
(1) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken underthis chapter.
(B) Enforcement of this article.
(2) Expenses incurred by the state under section 8 of thischapter in recovering the costs of corrective actions.
(3) Administrative expenses and personnel expenses incurredby the state in carrying out this article.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-8
Liability of owner or operator for costs of corrective action;subrogation; actions to recover costs
Sec. 8. (a) Except where an owner or operator can prove that arelease from an underground storage tank was caused solely by:
(1) an act of God;
(2) an act of war;
(3) negligence on the part of the state or the United Statesgovernment; or
(4) any combination of the causes set forth in subdivisions (1)through (3);
the owner or operator of an underground storage tank is liable to thestate for the actual costs of any corrective action taken under section2 of this chapter or IC 13-7-20-19(b) (before its repeal) involving theunderground storage tank and is responsible for undertaking anycorrective action, including undertaking an exposure assessment,ordered under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before itsrepeal), or IC 13-7-20-26 (before its repeal), or required by this titleor a rule adopted under this title.
(b) A person who:
(1) pays to the state the costs described under subsection (a); or
(2) undertakes corrective action resulting from a release from anunderground storage tank, regardless of whether the correctiveaction is undertaken voluntarily or under an order issued underthis chapter, IC 13-23-14-1, IC 13-7-20-19 (before its repeal),or IC 13-7-20-26 (before its repeal);
is entitled to receive a contribution from a person who owned oroperated the underground storage tank at the time the releaseoccurred. A person who brings a successful action to receive acontribution from an owner or operator is also entitled to receivereasonable attorney's fees and court costs from the owner or operator.An action brought under this subsection may be brought in a circuitor superior court. In resolving a contribution claim, a court may
allocate the cost of a corrective action among the parties to the actionusing equitable factors that the court determines are appropriate.
(c) Money recovered by the state under this section in connectionwith any corrective action undertaken with respect to a release ofpetroleum shall be deposited in the petroleum trust fund.
(d) Money recovered by the state under this section in connectionwith any corrective action undertaken with respect to a release of aregulated substance other than petroleum shall be deposited in thehazardous substances response trust fund.
(e) The state may recover corrective action costs under thissection in an action commenced under IC 13-14-2-6, IC 13-14-2-7,IC 13-7-5-7 (before its repeal), or IC 13-7-5-8 (before its repeal). Anaction to recover corrective action costs under this section may becombined, as appropriate, with an action to enforce an order issuedunder section 1 of this chapter or IC 13-7-20-19(a) (before its repeal)to require corrective action not already undertaken by thecommissioner.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-9
Equities for recovery of costs
Sec. 9. In determining the equities for seeking the recovery ofcosts under section 8 of this chapter, the commissioner may considerthe following:
(1) The amount of financial responsibility required to bemaintained under IC 13-23-1-2(c)(6).
(2) The factors considered in establishing that amount forunderground storage tanks containing petroleum underIC 13-23-4-4.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-10
Agreements to indemnify, hold harmless, or insure
Sec. 10. (a) An indemnification agreement, a hold harmlessagreement, or other similar agreement or conveyance is not effectiveto transfer the liability imposed under section 8 of this chapter from:
(1) the owner or operator of an underground storage tank; or
(2) any person who may be liable for a release or threat ofrelease under this article;
to any other person.
(b) This section does not bar an agreement to:
(1) insure;
(2) hold harmless; or
(3) indemnify;
a party to an agreement for any liability under this article.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-11
Subrogation
Sec. 11. This chapter does not bar a cause of action that: (1) an owner or operator;
(2) a guarantor; or
(3) any other person subject to liability under this article;
has or would have, by reason of subrogation or otherwise, againstany person.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-12
Duty of owner or operator to furnish information, conduct testing,or permit access; right of entry
Sec. 12. (a) For the purpose of enabling the commissioner to takeor to assess the need for corrective action under this chapter or toenforce this article, an owner or operator of an underground storagetank, upon the request of an officer, an employee, or a designatedrepresentative of the department, shall do the following:
(1) Furnish information relating to the underground storage tankor associated equipment or contents.
(2) Conduct monitoring or testing of the underground storagetank, including associated equipment or contents.
(3) Conduct monitoring or testing of soils, air, surface water, orground water surrounding the underground storage tank if:
(A) tank testing, using methods that are applicable to but notin excess of federal standards, confirms a release ofregulated substance; or
(B) other evidence exists that gives cause for reasonablesuspicion that a release has occurred.
(4) Permit, at all reasonable times, the officer, employee, ordesignated representative to have access to and to copy allrecords relating to the underground storage tank.
(5) Permit the officer, employee, or designated representativeto have access for corrective action.
(b) For the purposes set forth in subsection (a), an officer, anemployee, or a designated representative of the department may enterat reasonable times any establishment or other place where anunderground storage tank is located or where a regulated substancemay be present due to a release from an underground storage tank todo the following:
(1) Inspect and obtain samples from any person of any regulatedsubstances contained in the underground storage tank.
(2) Conduct monitoring or testing of:
(A) the underground storage tank;
(B) associated equipment or contents; or
(C) surrounding soils, air, surface water, or ground water.
(3) Take corrective action under section 2 of this chapter.
(c) Every action authorized by this section shall be commencedand completed with reasonable promptness.
As added by P.L.1-1996, SEC.13.
IC 13-23-13-13
Emergency procurement powers; actions authorized under federal
law
Sec. 13. (a) This article does not bar the commissioner from usingany emergency procurement powers existing under law.
(b) This article does not bar the commissioner from taking anyactions authorized under Section 9003(h)(7) of the federal SolidWaste Disposal Act (42 U.S.C. 6991b(h)(7)).
As added by P.L.1-1996, SEC.13.
IC 13-23-13-14
Lenders considered to participate in management
Sec. 14. For purposes of IC 13-11-2-148(e) andIC 13-11-2-150(b), a person that is a lender and that holds evidenceof ownership primarily to protect a security interest in anunderground storage tank shall be considered to participate inmanagement (as defined in IC 13-11-2-151.2) of the undergroundstorage tank only if, while the borrower is still in possession of theunderground storage tank encumbered by the security interest, theperson:
(1) exercises decision making control over the environmentalcompliance related to the underground storage tank such thatthe person has undertaken responsibility for the hazardoussubstance handling or disposal practices related to theunderground storage tank; or
(2) exercises control at a level comparable to that of a managerof the underground storage tank such that the person hasassumed or manifested responsibility:
(A) for the overall management of the underground storagetank encompassing day to day decision making with respectto environmental compliance; or
(B) over all or substantially all of the operational functions(as distinguished from financial or administrative functions)of the underground storage tank other than the function ofenvironmental compliance.
As added by P.L.90-1998, SEC.20.
IC 13-23-13-15
Limits on liability of fiduciaries
Sec. 15. (a) The liability of a fiduciary under this title for therelease or threatened release of a hazardous substance at, from, or inconnection with an underground storage tank held in a fiduciarycapacity shall not exceed the assets held in the fiduciary capacity.
(b) Subsection (a) does not apply to the extent that a person isliable under this title independently of the person's ownership of anunderground storage tank as a fiduciary or actions taken in afiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining toa release or threatened release of a hazardous substance if negligenceof a fiduciary causes or contributes to the release or threatenedrelease.
(d) A fiduciary is not liable in its personal capacity under this title
for any of the following:
(1) Undertaking or directing another person to undertake aresponse action under 42 U.S.C. 9607(d)(1) or under thedirection of an on-scene coordinator designated under theNational Contingency Plan.
(2) Undertaking or directing another person to undertake otherlawful means of addressing a hazardous substance in connectionwith the underground storage tank.
(3) Terminating the fiduciary relationship.
(4) Including in the terms of the fiduciary agreement acovenant, warranty, or other term or condition that relates tocompliance with an environmental law, or monitoring,modifying, or enforcing the term or condition.
(5) Monitoring or undertaking at least one (1) inspection of theunderground storage tank.
(6) Providing financial advice or other advice or counseling toother parties to the fiduciary relationship, including the settloror beneficiary.
(7) Restructuring, renegotiating, or otherwise altering the termsand conditions of the fiduciary relationship.
(8) Administering, as a fiduciary, an underground storage tankthat was contaminated before the fiduciary relationship began.
(9) Declining to take any of the actions referred to insubdivisions (2) through (8).
(e) This section does not apply to a person if the person:
(1) acts in a capacity other than:
(A) a fiduciary capacity; or
(B) a beneficiary capacity;
and, in that capacity, directly or indirectly benefits from a trustor fiduciary relationship; or
(2) is a beneficiary and a fiduciary with respect to the samefiduciary estate and, as a fiduciary, receives benefits that exceedcustomary or reasonable compensation and incidental benefitspermitted under other applicable law.
(f) This section does not preclude a claim against the assets of theestate or trust administered by:
(1) the fiduciary; or
(2) a nonemployee agent or independent contractor retained bya fiduciary.
(g) This section does not:
(1) affect the rights, immunities, or other defenses that areavailable under:
(A) this title; or
(B) other law that is applicable to a person subject to thischapter; or
(2) create:
(A) any liability for a person; or
(B) a private right of action against a fiduciary or any otherperson.
As added by P.L.90-1998, SEC.21.
IC 13-23-13-16
Presumptions concerning a governmental unit's tank activity on abrownfield
Sec. 16. (a) A political subdivision or unit of federal or stategovernment that acquired ownership or control of an undergroundstorage tank on a brownfield by any of the means listed inIC 13-11-2-150(c) and IC 13-11-2-151(b) may undertake any activityin conjunction with:
(1) investigation or remediation of hazardous substances,petroleum, and other pollutants associated with a brownfield,including complying with land use restrictions and institutionalcontrols; or
(2) monitoring or closure of an underground storage tank;
without being considered as contributing to the existing release orthreatened release of a regulated substance on, in, or at thebrownfield unless existing contamination on the brownfield isexacerbated due to gross negligence or intentional misconduct by thepolitical subdivision or unit of federal or state government.
(b) For purposes of subsection (a), reckless, willful, or wantonmisconduct constitutes gross negligence.
As added by P.L.221-2007, SEC.15.