CHAPTER 1. PETROLEUM RELEASES
IC 13-24
ARTICLE 24. PETROLEUM
IC 13-24-1
Chapter 1. Petroleum Releases
IC 13-24-1-1
Removal or remedial actions; resolution of disputes
Sec. 1. (a) The commissioner may issue an order under:
(1) IC 13-14-2-7;
(2) IC 4-21.5-4; or
(3) IC 4-21.5-3-6;
to require an owner or operator or a responsible person to undertakeremoval or remedial action with respect to a release of petroleum ata petroleum facility.
(b) If the commissioner determines that the removal or remedialaction will be done properly and promptly by the owner, operator, orresponsible person, the commissioner may enter into an agreed orderwith the owner, operator, or responsible person to implementnecessary removal or remedial action.
(c) If the commissioner and the owner or operator or theresponsible party fail to agree on the appropriate and necessaryremoval or remedial action to be taken, the dispute shall be resolvedunder IC 4-21.5.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-2
Conditions for actions; priorities; emergencies
Sec. 2. (a) Except as provided in subsection (c), the commissionermay undertake removal or remedial action with respect to a releaseof petroleum at a petroleum facility if:
(1) the action is necessary, in the judgment of thecommissioner, to protect human health and the environment;and
(2) a person cannot be found not later than ninety (90) daysafter the suspected or confirmed release is identified who is:
(A) an owner or operator of the petroleum facility or aresponsible person; and
(B) capable of properly carrying out removal or remedialaction with respect to the release.
(b) In undertaking removal or remedial action under subsection(a), the commissioner shall give priority to releases of petroleumfrom a petroleum facility that pose the greatest threat to humanhealth and the environment.
(c) The commissioner may undertake or require removal orremedial action with respect to a release of petroleum into theenvironment if it is determined that an emergency exists underIC 4-21.5-4.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-3
Exposure assessments
Sec. 3. (a) Remedial action undertaken or required under section1 or 2 of this chapter may include an exposure assessment.
(b) The cost of:
(1) an exposure assessment;
(2) a removal; or
(3) a remedial action;
undertaken under section 2 of this chapter may be recovered undersection 4 of this chapter.
As added by P.L.1-1996, SEC.14. Amended by P.L.2-1998, SEC.58.
IC 13-24-1-4
Liability for response or remedial action costs; recovery fromother responsible persons of costs paid to state; deposit of fundsrecovered; removal or remedial action costs; administrative costs
Sec. 4. (a) Except where an owner or operator can prove that arelease from a petroleum facility was caused by:
(1) an act of God;
(2) an act of war;
(3) negligence on the part of a local government, the stategovernment, or the federal government;
(4) except as provided in subsection (b), an act or omission ofa responsible person; or
(5) a combination of the causes set forth in subdivisions (1)through (4);
the owner or operator is liable to the state for the reasonable costs ofany response or remedial action taken under section 2 of this chapterinvolving the petroleum facility. A responsible person is liable to thestate for the reasonable costs of any response or remedial actiontaken under section 2 of this chapter involving the petroleum facility.
(b) The owner, operator, or responsible person is entitled to allrights of the state to recover from another responsible person all ora part of the costs described in subsection (a) incurred or paid to thestate by the owner, operator, or responsible person in an actionbrought in a circuit or superior court with jurisdiction in the countyin which the release occurred.
(c) Money recovered by the state under this section in connectionwith a removal or remedial action undertaken with respect to arelease of petroleum shall be deposited in the hazardous substancesresponse trust fund.
(d) The state may recover removal or remedial action costs underthis section as follows:
(1) Commence an action under IC 13-14-2-6 or IC 13-14-2-7.
(2) Impose a lien under IC 13-25-4-11 on the property on whichthe removal or the remedial action was undertaken.
(e) In an administrative action brought under this chapter, anenvironmental law judge shall apportion the costs of a response or aremedial action in proportion to each party's responsibility for arelease.As added by P.L.1-1996, SEC.14. Amended by P.L.25-1997, SEC.17.
IC 13-24-1-5
Agreements to indemnify, hold harmless, or insure; subrogation
Sec. 5. (a) An indemnification agreement, hold harmlessagreement, or similar agreement or conveyance is not effective totransfer the liability imposed under section 4 of this chapter from:
(1) the owner or operator of a petroleum facility; or
(2) a person who may be liable for a release or threatenedrelease under this chapter;
to another person. However, this subsection does not bar anagreement to insure, hold harmless, or indemnify a party to anagreement for any liability under this chapter.
(b) This section does not bar a cause of action that:
(1) an owner or operator;
(2) a responsible party; or
(3) another person subject to liability under this chapter;
has or would have, by reason of subrogation or otherwise, againstany person.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-6
Enforcement; testing; facility site right of entry; inspection;reasonable promptness
Sec. 6. (a) To allow the commissioner to take or to assess the needfor removal or remedial action under section 1, 2, or 3 of this chapteror to enforce this chapter, an owner, an operator, or a responsibleparty of a facility, upon the request of an officer, an employee, or adesignated representative of the department, shall:
(1) furnish information relating to the facility or the facility'sassociated equipment or contents;
(2) conduct testing of the facility or the facility's associatedequipment or contents;
(3) conduct testing of:
(A) soils;
(B) air;
(C) surface water; or
(D) ground water;
surrounding the facility if the testing, using methods that aresimilar to but do not exceed federal standards, confirms arelease of petroleum, or if other evidence exists that gives causefor reasonable suspicion that a release has occurred;
(4) allow, at reasonable times, the officer, employee, ordesignated representative to have access to and to copy recordsthat relate to the release at the facility; and
(5) allow the officer, employee, or designated representative tohave access for response, removal, or remedial action undersection 2 of this chapter.
(b) For the reasons described under subsection (a), an officer, anemployee, or a designated representative of the department may
enter, at reasonable times, a site where a facility is located or wherepetroleum may be present because of a release from a facility to dothe following:
(1) Inspect and obtain samples of petroleum contained in thefacility from any person.
(2) Conduct testing of:
(A) the facility;
(B) the facility's associated equipment or contents; or
(C) surrounding:
(i) soils;
(ii) air;
(iii) surface water; or
(iv) ground water.
(3) Take removal or remedial action under section 2 of thischapter.
(c) An action authorized under this section shall be commencedand completed with reasonable promptness.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-7
Use of funds; petroleum facility expenses
Sec. 7. The commissioner may use money in the hazardoussubstances response trust fund to pay the following expensesassociated with petroleum facilities:
(1) Expenses incurred by the state for:
(A) a removal or remedial action that is ordered orundertaken under section 2 of this chapter; and
(B) enforcement of this chapter.
(2) Expenses incurred by the state under section 4 of thischapter in recovering the costs of a removal or remedial action.
(3) Administrative expenses and personnel expenses incurredby the state in carrying out this chapter.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-8
Application of IC 4-21.5 to determinations, notices, hearing, andappeal determinations
Sec. 8. IC 4-21.5 applies to:
(1) determinations;
(2) notices;
(3) hearings; and
(4) appeal determinations;
under this chapter.
As added by P.L.1-1996, SEC.14.
IC 13-24-1-9
Repealed
(Repealed by P.L.90-1998, SEC.27.)
IC 13-24-1-10 Lenders considered to participate in management
Sec. 10. A person that is a lender and that holds evidence ofownership primarily to protect a security interest in a petroleumfacility may be considered to participate in the management (asdefined in IC 13-11-2-151.3) of the petroleum at the petroleumfacility only if, while the borrower is still in possession of thepetroleum facility encumbered by the security interest, the person:
(1) exercises decision making control over the environmentalcompliance related to the petroleum facility such that the personhas undertaken responsibility for the petroleum handling ordisposal practices related to the petroleum facility; or
(2) exercises control at a level comparable to that of a managerof the petroleum facility such that the person has assumed ormanifested responsibility:
(A) for the overall management of the petroleum facilityencompassing day to day decision making with respect toenvironmental compliance; or
(B) over all or substantially all of the operational functions(as distinguished from financial or administrative functions)of the petroleum facility other than the function ofenvironmental compliance.
As added by P.L.90-1998, SEC.22.
IC 13-24-1-11
Limits on liability of fiduciaries
Sec. 11. (a) The liability of a fiduciary under this title for therelease or threatened release of petroleum at, from, or in connectionwith a petroleum facility held in a fiduciary capacity shall not exceedthe assets held in the fiduciary capacity.
(b) Subsection (a) does not apply to the extent that a person isliable under this title independently of:
(1) the person's ownership of the petroleum facility as afiduciary; or
(2) actions taken in a fiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining toa release or threatened release of petroleum if negligence of afiduciary causes or contributes to the release or threatened release.
(d) A fiduciary is not liable in its personal capacity under this titlefor 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 petroleum facility.
(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 thepetroleum facility.
(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, a vessel or facility that wascontaminated 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.23.