CHAPTER 5. VOLUNTARY REMEDIATION OF HAZARDOUS SUBSTANCES AND PETROLEUM
IC 13-25-5
Chapter 5. Voluntary Remediation of Hazardous Substances andPetroleum
IC 13-25-5-1
Intent of chapter
Sec. 1. (a) This chapter is intended to provide an alternativeprocedure to assure compliance with the law and to encourage thevoluntary remediation of hazardous substances and petroleum.
(b) This section does not affect a person's legal obligations setforth in 42 U.S.C. 6901 et seq. regardless of a person's participationin this chapter.
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.16.
IC 13-25-5-2
Application; confidentiality; conditions; fee
Sec. 2. (a) A person who desires to participate in the voluntaryremediation program under this chapter must submit an applicationand a fee to the department as described under subsection (c).
(b) Except as provided under section 5(c) of this chapter, anyinformation submitted to the division of the department responsiblefor reviewing and making determinations on applications under thischapter is confidential between the applicant and the departmentuntil the applicant and the commissioner sign a voluntaryremediation agreement.
(c) An application submitted under this section must meet thefollowing conditions:
(1) Be on a form provided by the department.
(2) Contain the following:
(A) General information concerning:
(i) the person;
(ii) the site; and
(iii) other background information;
as requested by the department.
(B) An environmental assessment of the actual or threatenedrelease of the hazardous substance or petroleum at the site.
(3) Be accompanied by an application fee of one thousanddollars ($1,000). However, a political subdivision is notrequired to submit an application fee under this section.
(d) A fee collected under this section shall be deposited in thevoluntary remediation fund established by section 21 of this chapter.
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.17.
IC 13-25-5-3
Environmental assessment; contents
Sec. 3. An environmental assessment described under section2(c)(2)(B) of this chapter must include the following:
(1) A legal description of the site.
(2) The physical characteristics of the site.
(3) The operational history of the site to the extent the history
is known by the applicant.
(4) Information that the applicant is aware of concerning:
(A) the nature and extent of any relevant contamination; and
(B) relevant releases;
at the site and immediately contiguous to the site.
(5) Relevant information the applicant is aware of concerningthe potential for human exposure to contamination at the site.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-4
Determination of applicant eligibility
Sec. 4. Not more than thirty (30) days after receiving:
(1) an application; and
(2) an application fee;
under section 2 of this chapter, the department shall determine if theapplicant is eligible to participate in the voluntary remediationprogram under this chapter.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-5
Rejection of application; reasons; completeness; list ofinformation; department duties
Sec. 5. (a) The department may reject an application submittedunder section 2 of this chapter only for one (1) or more of thefollowing reasons:
(1) A state or federal enforcement action that concerns theremediation of the hazardous substance or petroleum describedin the application is pending.
(2) A federal grant requires an enforcement action at the site.
(3) The condition of the hazardous substance or petroleumdescribed in the application constitutes an imminent andsubstantial threat to human health or the environment.
(4) The application is not complete.
(b) If an application is rejected under subsection (a)(4), thedepartment, not more than forty-five (45) days after the departmentreceives the application, shall provide the applicant with a list of allinformation needed to make the application complete. If thedepartment fails to comply with this subsection, the application shallbe considered completed for the purposes of this chapter.
(c) If the department rejects an application, the department shalldo the following:
(1) As described under IC 4-21.5-3-4(b) and IC 4-21.5-3-4(c),notify the applicant that the department rejected the application.
(2) Explain the reason the department rejected the application.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-6
Rejection of application; appeal; submission of completedapplication; refund
Sec. 6. (a) If an applicant's application is rejected under section 5
of this chapter, the applicant may do the following:
(1) Appeal the department's decision under IC 4-21.5.
(2) If the application is rejected because the application is notcomplete, submit a completed application without submitting anadditional application fee.
(b) If an applicant's application is rejected and the applicant:
(1) does not appeal the rejection; or
(2) loses an appeal concerning the rejection;
the department shall refund the unexpended part of the applicant'sapplication fee.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-7
Voluntary remediation investigation plan; voluntary remediationwork plan; contents
Sec. 7. (a) If the department determines an application is eligibleunder section 4 of this chapter, the applicant may submit:
(1) a proposed voluntary remediation investigation plan to thedepartment;
(2) a proposed voluntary remediation work plan to thedepartment; or
(3) a voluntary remediation work plan for a completedremediation project to the department.
(b) A proposed voluntary remediation work plan must include thefollowing:
(1) Detailed documentation of the investigation conducted bythe applicant in preparing the proposed voluntary remediationwork plan and a description of the work to be performed by theapplicant to determine the nature and extent of the actual orthreatened release.
(2) A proposed statement of work to accomplish theremediation in accordance with guidelines established by thedepartment.
(3) Plans concerning the following:
(A) Quality assurance for the implementation of theproposed remediation project.
(B) Descriptions of sampling and analysis.
(C) Health and safety considerations.
(D) Community relations and community comment inplanning, cleanup objectives, and implementation processes.
(E) Data management and record keeping.
(F) A proposed schedule concerning the implementation ofall tasks set forth in the proposed statement of work.
(c) A voluntary remediation work plan for a completedremediation project must include the following:
(1) Detailed documentation of the investigation conducted bythe applicant in preparing the proposed voluntary remediationwork plan and a description of the work performed by theapplicant to determine the nature and extent of the actual orthreatened release. (2) A statement of work performed to accomplish theremediation in accordance with rules or guidelines establishedby the department.
(3) Plans concerning the following:
(A) Quality assurance for the implementation of and, ifappropriate, plans for future oversight of the remediationproject.
(B) Descriptions of sampling and analysis conducted beforeand after the remediation is performed.
(C) Health and safety considerations.
(D) Community comment.
(E) Data management and record keeping.
(F) Criteria used to determine remediation levels andremediation methodology.
(4) Other information the department determines is necessaryto evaluate the work plan and determine if the remediationobjectives have been achieved.
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.18.
IC 13-25-5-8
Voluntary remediation agreement; contents; failure to reachaccord within reasonable time after good faith negotiations
Sec. 8. (a) Before the department evaluates a proposed voluntaryremediation work plan, the applicant who submitted the work planand the commissioner must enter into a voluntary remediationagreement that sets forth the terms and conditions of the evaluationand the implementation of the work plan. A voluntary remediationagreement must include the following:
(1) Provisions for the following:
(A) A requirement that the department provide the applicantwith an itemized list of estimated costs the department mayincur under this chapter.
(B) The recovery of all reasonable costs that:
(i) are incurred by the department in the review andoversight of the work plan;
(ii) are attributable to the voluntary remediationagreement; and
(iii) exceed the fee submitted by the applicant undersection 2 of this chapter.
(C) A schedule of payments to be made by the applicant tothe department to recover the costs to the department.
(2) A mechanism to resolve disputes arising from theevaluation, analysis, and oversight of the implementation of thework plan, including any of the following:
(A) Arbitration.
(B) Adjudication under IC 4-21.5.
(C) A dispute resolution procedure provided under theIndiana Rules of Court.
(3) A provision concerning the indemnification of the parties.
(4) A provision concerning retention of records. (5) A timetable for the department to do the following:
(A) Reasonably review and evaluate the adequacy of thework plan.
(B) Make a determination concerning the approval orrejection of the work plan.
(6) A provision concerning applicable interagency coordination.
(7) A provision specifying the proposed remediation objectivesto be achieved on the site, as described in section 8.5 of thischapter.
(8) The requirement that the applicant submit to the departmenta proposed voluntary remediation work plan:
(A) not later than one hundred eighty (180) days after thedate the voluntary remediation agreement is signed; or
(B) after a longer period if the extension is agreed to by thedepartment and the applicant.
(9) Any other conditions considered necessary by thecommissioner or the applicant concerning the effective andefficient implementation of this chapter.
(b) If an agreement is not reached between an applicant and thecommissioner within a reasonable time after good faith negotiationshave begun between the applicant and the commissioner:
(1) the applicant or the commissioner may withdraw from thenegotiations; and
(2) the department shall refund the unexpended part of theapplicant's application fee.
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.19.
IC 13-25-5-8.5
Voluntary remediation work plan objectives; additional action toprotect human health and the environment not necessary undercertain circumstances; risk based remediation objectives andproposals
Sec. 8.5. (a) A voluntary remediation work plan must specify theremediation objectives for the site. Subsections (b) through (e) applyto a site regardless of whether the site was entered into the voluntaryremediation program before July 1, 2009, or after June 30, 2009.
(b) The remediation objectives for each hazardous substance andany petroleum on the site shall be based on:
(1) background levels of hazardous substances and petroleumthat occur naturally on the site; or
(2) an assessment of the risks pursuant to subsection (d) posedby the hazardous substance or petroleum presently found on thesite taking into consideration the following:
(A) Expected future use of the site.
(B) Measurable risks to human health, natural resources, orthe environment based on the:
(i) activities that take place; and
(ii) environmental impact;
on the site.
(c) If the: (1) nature and extent of the hazardous substance or petroleumis adequately characterized under the voluntary remediationwork plan, considering the remediation objectives developedunder this section; and
(2) the level of the hazardous substance or petroleum isdemonstrated to be below:
(A) background levels of the hazardous substances andpetroleum that occur naturally on the site; or
(B) the risk based levels developed under subsection (d);
additional action is not necessary to protect human health or theenvironment.
(d) Risk based remediation objectives shall be based on one (1) ofthe following:
(1) Levels of hazardous substances and petroleum calculated bythe department using standard equations and default values forparticular hazardous substances or petroleum.
(2) Levels of hazardous substances and petroleum calculatedusing site specific data for the default values in the department'sstandard equations.
(3) Levels of hazardous substances and petroleum developedbased on site specific risk assessments that take into accountsite specific factors, including remedial measures, restrictivecovenants, and environmental restrictive ordinances that:
(A) manage risk; and
(B) control completed or potential exposure pathways.
(e) The department shall consider and give effect to restrictivecovenants and environmental restrictive ordinances in evaluating riskbased remediation proposals.
As added by P.L.59-1997, SEC.20. Amended by P.L.78-2009,SEC.18.
IC 13-25-5-9
Review and evaluation; additional or corrected information
Sec. 9. (a) After the commissioner and an applicant have signeda voluntary remediation agreement described under section 8 of thischapter, the department or a person under contract with thedepartment shall do the following:
(1) Review and evaluate the site and the affected areasurrounding the site.
(2) Review and evaluate the documentation of the investigationand feasibility study conducted by the applicant or theapplicant's representative for accuracy and thoroughness.
(3) Review and evaluate the proposed voluntary remediationwork plan for quality, efficiency, and safety based on guidelinesestablished by the department.
(4) Make a recommendation to the commissioner concerningwhether the commissioner should:
(A) approve;
(B) modify and approve; or
(C) reject; the proposed voluntary remediation work plan.
(b) At any time during the evaluation of a proposed voluntaryremediation work plan, the commissioner or the department mayrequest that an applicant submit additional or corrected informationto the department. An applicant may:
(1) comply with the request; or
(2) withdraw the applicant's proposed voluntary remediationwork plan from consideration.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-10
Voluntary remediation work plan; approval, modification, orrejection
Sec. 10. Subject to section 11 of this chapter, after receiving arecommendation under section 9 of this chapter, the commissionershall:
(1) approve;
(2) modify and approve; or
(3) reject;
the proposed voluntary remediation work plan.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-11
Voluntary remediation work plan; placement in public library;notice; comment period; hearing
Sec. 11. (a) Before the commissioner approves or rejects aproposed voluntary remediation work plan under section 10 of thischapter, the commissioner must:
(1) notify local government units located in a county affected bythe proposed voluntary remediation work plan of the work plan;
(2) provide that a copy of the proposed voluntary remediationwork plan be placed in at least one (1) public library in a countyaffected by the work plan; and
(3) publish a notice requesting comments concerning theproposed voluntary remediation work plan.
(b) A comment period of at least thirty (30) days must followpublication of a notice under this section. During a comment period,interested persons may do the following:
(1) Submit written comments to the commissioner concerningthe proposed voluntary remediation work plan.
(2) Request a public hearing concerning the proposed voluntaryremediation work plan.
(c) If the commissioner receives at least one (1) written request,the commissioner may hold a public hearing in the geographical areaaffected by the proposed voluntary remediation work plan on thequestion of whether to approve or reject the work plan. Thecommissioner shall consider all written comments and publictestimony.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-12
Voluntary remediation work plan; rejection; notice; appeal
Sec. 12. If the commissioner rejects a proposed voluntaryremediation work plan under section 10 of this chapter:
(1) the commissioner shall, under applicable provisions set forthin IC 4-21.5-3-5(b) and IC 4-21.5-3-5(c), notify the applicantand specify the reasons for rejecting the work plan; and
(2) the applicant may appeal the commissioner's decision underIC 4-21.5.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-13
Voluntary remediation work plan; approval or modification;notice
Sec. 13. If the commissioner approves or modifies and approvesa proposed voluntary remediation work plan under this chapter, thecommissioner shall notify the applicant in writing, under theapplicable provisions set forth in IC 4-21.5-3-5(b) andIC 4-21.5-3-5(c), of the following:
(1) That the voluntary remediation work plan has beenapproved or modified and approved.
(2) The date:
(A) the applicant may begin implementing the work plan;and
(B) by which the work plan must be completed.
(3) The applicant's right to appeal the commissioner's decisionunder IC 4-21.5.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-14
Voluntary remediation work plan; implementation; notice
Sec. 14. If an applicant who submitted an approved voluntaryremediation work plan desires to proceed with the implementation ofthe work plan, the applicant must notify the commissioner in writingnot more than sixty (60) days after the work plan is approved that theapplicant:
(1) intends to proceed with the implementation of the workplan; and
(2) agrees to the starting and completion dates set forth by thecommissioner under section 13(2) of this chapter.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-15
Voluntary remediation work plan; implementation; reports
Sec. 15. If an applicant who submitted an approved voluntaryremediation work plan proceeds with the work plan, the departmentor a person under contract with the department shall do thefollowing:
(1) Oversee and review the implementation of the voluntaryremediation work plan. (2) Make regular reports to the commissioner concerning theremediation.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-16
Certificate of completion
Sec. 16. (a) If the commissioner determines that an applicant hassuccessfully completed a voluntary remediation work plan approvedunder this chapter, the commissioner shall certify that the work planhas been completed by issuing the applicant a certificate ofcompletion.
(b) The issuance of a certificate of completion under this sectionis a final agency action for purposes of IC 4-21.5.
(c) A person who receives a certificate under this section shallattach a copy of the certificate to the recorded deed that concerns theproperty on which the remediation took place.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-17
Notice of unsuccessful completion
Sec. 17. If the commissioner determines that an applicant has notsuccessfully completed a voluntary remediation work plan approvedunder this chapter, the commissioner shall notify the applicant of thisdetermination under IC 4-21.5.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-18
Covenant not to sue; conditions in covenants not to sue andcertificates of completion; immunity from actions; exceptions
Sec. 18. (a) If the commissioner issues a certificate to a personunder section 16 of this chapter, the governor shall also provide theperson with a covenant not to sue for any liability, including futureliability, or a claim resulting from or based upon the release orthreatened release of a hazardous substance or petroleum that isaddressed by an approved voluntary remediation work plan underthis chapter.
(b) A covenant not to sue issued under this section bars suitagainst:
(1) a person who received the certificate of completion undersection 16 of this chapter; or
(2) any other person who receives the certificate of completion:
(A) through a legal transfer of the certificate of completion;or
(B) by acquiring property to which the certificate ofcompletion applies;
from all public or private claims arising under this title or rulesadopted under this title in connection with the release or threatenedrelease of a hazardous substance or petroleum that was the subject ofthe approved voluntary remediation work plan, except as provided insubsection (c). (c) A covenant not to sue issued under this section may not applyto future liability for a condition or the extent of a condition that:
(1) was present:
(A) on property that was involved in an approved andcompleted voluntary remediation work plan; and
(B) at the time the commissioner issued the certificate ofcompletion under section 16 of this chapter; and
(2) was not known to the commissioner at the time thecommissioner issued the certificate of completion under section16 of this chapter.
(d) A certificate of completion issued under section 16 of thischapter may include conditions that must be performed or maintainedafter issuance of the certificate.
(e) A covenant not to sue issued under this section may includeconditions that must be performed or maintained after issuance of thecovenant.
(f) Except as:
(1) provided under federal law; or
(2) agreed to by a federal governmental entity;
a covenant not to sue issued under this section may not release aperson from liability to the federal government for claims based onfederal law.
(g) After an applicant and the department have signed a voluntaryremediation agreement, a person may not bring an action, includingan administrative action, against the applicant or any other personproceeding under this chapter on behalf of the applicant for anycause of action arising under this title or rules adopted under this titleand relating to the release or threatened release of a hazardoussubstance or petroleum that is the subject of the agreement.However, this section does not apply if:
(1) the applicant fails to file a proposed voluntary remediationwork plan within the time period established in section 8(a)(8)of this chapter;
(2) the commissioner rejects a proposed voluntary remediationwork plan submitted in good faith and the rejection is upheld inany appeal brought under section 12 of this chapter;
(3) the applicant or another person proceeding under thischapter on behalf of the applicant fails to complete a voluntaryremediation in accordance with an approved voluntaryremediation work plan; or
(4) the commissioner withdraws the commissioner's approval ofthe voluntary remediation work plan and the withdrawal isupheld in any appeal under section 19 of this chapter.
However, if the commissioner withdraws approval of the plan undersection 19(a)(2) of this chapter, the commissioner may bring anaction, including an administrative action, against the applicant.
(h) A person who purchases property that is the subject of avoluntary remediation agreement at the time the property ispurchased may not be subject to an enforcement action to the sameextent as an applicant under subsection (g).As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.21;P.L.78-2009, SEC.19.
IC 13-25-5-19
Withdrawing commissioner's approval of voluntary remediationwork plan; appeal
Sec. 19. (a) This chapter does not prohibit or limit thecommissioner from withdrawing the commissioner's approval of avoluntary remediation work plan at any time during theimplementation of the work plan if:
(1) the person implementing the work plan fails substantially tocomply with the terms and conditions of:
(A) the voluntary remediation work plan; or
(B) a voluntary remediation agreement; or
(2) a hazardous substance or petroleum becomes an imminentand substantial threat to human health or the environment.
(b) The withdrawal of the approval of a voluntary remediationwork plan may be appealed under IC 4-21.5.
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.22.
IC 13-25-5-20
Third party actions or claims; liability for claims for contribution
Sec. 20. (a) This chapter does not affect an action or a claim,including a claim for contribution, that a person who implements orcompletes an approved voluntary remediation work plan has or mayhave against a third party.
(b) A person who implements or completes an approved voluntaryremediation work plan under this chapter is not liable for claims forcontribution concerning matters addressed in:
(1) the work plan; or
(2) a certificate of completion issued to the person under section16 of this chapter.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-21
Voluntary remediation fund
Sec. 21. (a) The voluntary remediation fund is established toprovide a source of money for the department to implement thischapter.
(b) The expenses of administering the fund shall be paid from themoney in the fund.
(c) The treasurer of state shall invest the money in the fund notcurrently needed to meet the obligations of the fund in the samemanner as other public money may be invested. Interest that accruesfrom these investments shall be deposited in the fund.
(d) Money in the fund at the end of a state fiscal year does notrevert to the state general fund.
(e) The sources of money for the fund are as follows:
(1) Fees paid under section 2 of this chapter.
(2) Appropriations made by the general assembly. (3) Gifts and donations intended for deposit in the fund.
(4) Transfers under section 22 of this chapter from theenvironmental management special fund established byIC 13-14-12-1.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-22
Repealed
(Repealed by P.L.1-2001, SEC.51.)
IC 13-25-5-23
Rules
Sec. 23. The board may adopt rules under IC 4-22-2 andIC 13-14-8 to implement this chapter. The rules may include interimor final remediation standards or provisions limiting the liability oflenders associated with persons involved in voluntary remediationprojects under this chapter.
As added by P.L.1-1996, SEC.15.