IC 13-23-13-1 Issuance of orders or corrective actions
Sec. 1. (a) The commissioner may, under rules adopted under
IC 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 to
undertake corrective action with respect to any release of a regulated
substance.
(b) If the commissioner determines that the corrective action will
be done properly and promptly by the owner or operator of the
underground storage tank from which the release occurs, the
commissioner may enter into an agreed order with the owner or
operator 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 under
IC 13-23-1-2, may undertake corrective action with respect to any
release of a regulated substance into the environment from an
underground storage tank if:
(1) that action is necessary, in the judgment of the
commissioner, 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) days
after a suspected or confirmed release is identified (or a
shorter time necessary to protect human health and the
environment) 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 with
respect to the release.
(B) An existing situation requires prompt action by the
commissioner under this section to protect human health and
the environment.
(C) The cost of corrective action at the site of an
underground storage tank exceeds the amount of financial
responsibility required under IC 13-23-1-2(c)(6),
IC 13-23-4-4, and IC 13-23-4-5 and, considering the class or
category of underground storage tank from which the release
occurred, expenditures by the state are necessary to ensure
an effective corrective action.
(D) The owner or operator of the underground storage tank
has failed or refused to comply with an order of the
commissioner or a judgment of a court of competent
jurisdiction under section 1 of this chapter to take corrective
action 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 this
chapter may include an exposure assessment. The cost of any
exposure assessment undertaken under this chapter may be recovered
under section 8 of this chapter as part of the costs of corrective
action. 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 of
this chapter; or
(2) undertaking corrective action under section 2 of this
chapter;
the commissioner shall give priority to releases of regulated
substances from underground storage tanks that pose the greatest
threat 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 section
1 of this chapter or undertaking corrective action under section 2 of
this 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 an
underground storage tank that, in the judgment of the commissioner,
poses little or no immediate threat to human health or to the
environment. As added by P.L.1-1996, SEC.13.
IC 13-23-13-5.5 Intentional surface spill or overfill; contribution to corrective
action 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 storage
tank is liable to the state only for corrective action to address a
surface spill or overfill of a regulated substance from the
underground storage tank that is intentionally caused by the person
during the delivery of the regulated substance into the underground
storage 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 described
in section 8(b)(1) or 8(b)(2) of this chapter. Except as otherwise
provided in subsection (c) and (d), an action for contribution under
this section may be brought in the same manner and is subject to the
same provisions as an action brought under section 8(b) of this
chapter.
(c) Before a person brings a contribution action under this section,
the person must provide written notice of intent to bring the action
by certified mail to:
(1) the department; and
(2) each person allegedly responsible for the surface spill or
overfill that occurred during the delivery of a regulated
substance into the underground storage tank.
(d) A person that provides notice under subsection (c) may not
bring a contribution action if:
(1) the department commences an administrative proceeding or
a civil action concerning the alleged surface spill or overfill not
later than ninety (90) days after receiving notice under
subsection (c)(1); or
(2) the person who receives the notice under subsection (c)(2)
agrees in writing, within ninety (90) days after receipt of the
notice, to remediate the surface spill or overfill in accordance
with 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 petroleum
storage tanks
Sec. 6. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the petroleum trust fund to pay the
following costs and expenses associated with underground petroleum
storage tanks:
(1) Costs incurred for corrective action conducted under
cooperative agreements entered into between the state and the
Administrator of the United States Environmental Protection
Agency under Section 9003(h)(7) of the federal Solid Waste
Disposal Act (42 U.S.C. 6991b(h)(7)), in accordance with the
provisions of the cooperative agreements.
(2) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(3) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions undertaken
under section 2 of this chapter.
(4) Administrative expenses and personnel expenses incurred
by 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 underground
storage tanks
Sec. 7. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the hazardous substances response
trust fund to pay the following expenses associated with underground
storage tanks used to contain regulated substances other than
petroleum:
(1) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(2) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions.
(3) Administrative expenses and personnel expenses incurred
by 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 a
release 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 States
government; 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 the
state for the actual costs of any corrective action taken under section
2 of this chapter or IC 13-7-20-19(b) (before its repeal) involving the
underground storage tank and is responsible for undertaking any
corrective action, including undertaking an exposure assessment,
ordered under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its
repeal), or IC 13-7-20-26 (before its repeal), or required by this title
or 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 an
underground storage tank, regardless of whether the corrective
action is undertaken voluntarily or under an order issued under
this 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 or
operated the underground storage tank at the time the release
occurred. A person who brings a successful action to receive a
contribution from an owner or operator is also entitled to receive
reasonable attorney's fees and court costs from the owner or operator.
An action brought under this subsection may be brought in a circuit
or superior court. In resolving a contribution claim, a court may
allocate the cost of a corrective action among the parties to the action
using equitable factors that the court determines are appropriate.
(c) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of
petroleum shall be deposited in the petroleum trust fund.
(d) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of a
regulated substance other than petroleum shall be deposited in the
hazardous substances response trust fund.
(e) The state may recover corrective action costs under this
section 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). An
action to recover corrective action costs under this section may be
combined, as appropriate, with an action to enforce an order issued
under section 1 of this chapter or IC 13-7-20-19(a) (before its repeal)
to require corrective action not already undertaken by the
commissioner. 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 of
costs under section 8 of this chapter, the commissioner may consider
the following:
(1) The amount of financial responsibility required to be
maintained under IC 13-23-1-2(c)(6).
(2) The factors considered in establishing that amount for
underground storage tanks containing petroleum under
IC 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 harmless
agreement, or other similar agreement or conveyance is not effective
to 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 of
release 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, against
any 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 take
or to assess the need for corrective action under this chapter or to
enforce this article, an owner or operator of an underground storage
tank, upon the request of an officer, an employee, or a designated
representative of the department, shall do the following:
(1) Furnish information relating to the underground storage tank
or associated equipment or contents.
(2) Conduct monitoring or testing of the underground storage
tank, including associated equipment or contents.
(3) Conduct monitoring or testing of soils, air, surface water, or
ground water surrounding the underground storage tank if:
(A) tank testing, using methods that are applicable to but not
in excess of federal standards, confirms a release of
regulated substance; or
(B) other evidence exists that gives cause for reasonable
suspicion that a release has occurred.
(4) Permit, at all reasonable times, the officer, employee, or
designated representative to have access to and to copy all
records relating to the underground storage tank.
(5) Permit the officer, employee, or designated representative
to have access for corrective action.
(b) For the purposes set forth in subsection (a), an officer, an
employee, or a designated representative of the department may enter
at reasonable times any establishment or other place where an
underground storage tank is located or where a regulated substance
may be present due to a release from an underground storage tank to
do the following:
(1) Inspect and obtain samples from any person of any regulated
substances 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 commenced
and 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 using
any emergency procurement powers existing under law.
(b) This article does not bar the commissioner from taking any
actions authorized under Section 9003(h)(7) of the federal Solid
Waste 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) and
IC 13-11-2-150(b), a person that is a lender and that holds evidence
of ownership primarily to protect a security interest in an
underground storage tank shall be considered to participate in
management (as defined in IC 13-11-2-151.2) of the underground
storage tank only if, while the borrower is still in possession of the
underground storage tank encumbered by the security interest, the
person:
(1) exercises decision making control over the environmental
compliance related to the underground storage tank such that
the person has undertaken responsibility for the hazardous
substance handling or disposal practices related to the
underground storage tank; or
(2) exercises control at a level comparable to that of a manager
of the underground storage tank such that the person has
assumed or manifested responsibility:
(A) for the overall management of the underground storage
tank encompassing day to day decision making with respect
to 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 of
environmental 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 the
release or threatened release of a hazardous substance at, from, or in
connection with an underground storage tank held in a fiduciary
capacity shall not exceed the assets held in the fiduciary capacity.
(b) Subsection (a) does not apply to the extent that a person is
liable under this title independently of the person's ownership of an
underground storage tank as a fiduciary or actions taken in a
fiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining to
a release or threatened release of a hazardous substance if negligence
of a fiduciary causes or contributes to the release or threatened
release.
(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 a
response action under 42 U.S.C. 9607(d)(1) or under the
direction of an on-scene coordinator designated under the
National Contingency Plan.
(2) Undertaking or directing another person to undertake other
lawful means of addressing a hazardous substance in connection
with the underground storage tank.
(3) Terminating the fiduciary relationship.
(4) Including in the terms of the fiduciary agreement a
covenant, warranty, or other term or condition that relates to
compliance with an environmental law, or monitoring,
modifying, or enforcing the term or condition.
(5) Monitoring or undertaking at least one (1) inspection of the
underground storage tank.
(6) Providing financial advice or other advice or counseling to
other parties to the fiduciary relationship, including the settlor
or beneficiary.
(7) Restructuring, renegotiating, or otherwise altering the terms
and conditions of the fiduciary relationship.
(8) Administering, as a fiduciary, an underground storage tank
that was contaminated before the fiduciary relationship began.
(9) Declining to take any of the actions referred to in
subdivisions (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 trust
or fiduciary relationship; or
(2) is a beneficiary and a fiduciary with respect to the same
fiduciary estate and, as a fiduciary, receives benefits that exceed
customary or reasonable compensation and incidental benefits
permitted under other applicable law.
(f) This section does not preclude a claim against the assets of the
estate or trust administered by:
(1) the fiduciary; or
(2) a nonemployee agent or independent contractor retained by
a fiduciary.
(g) This section does not:
(1) affect the rights, immunities, or other defenses that are
available under:
(A) this title; or
(B) other law that is applicable to a person subject to this
chapter; or
(2) create:
(A) any liability for a person; or
(B) a private right of action against a fiduciary or any other
person. As added by P.L.90-1998, SEC.21. IC 13-23-13-16 Presumptions concerning a governmental unit's tank activity on a
brownfield
Sec. 16. (a) A political subdivision or unit of federal or state
government that acquired ownership or control of an underground
storage tank on a brownfield by any of the means listed in
IC 13-11-2-150(c) and IC 13-11-2-151(b) may undertake any activity
in conjunction with:
(1) investigation or remediation of hazardous substances,
petroleum, and other pollutants associated with a brownfield,
including complying with land use restrictions and institutional
controls; or
(2) monitoring or closure of an underground storage tank;
without being considered as contributing to the existing release or
threatened release of a regulated substance on, in, or at the
brownfield unless existing contamination on the brownfield is
exacerbated due to gross negligence or intentional misconduct by the
political subdivision or unit of federal or state government.
(b) For purposes of subsection (a), reckless, willful, or wanton
misconduct constitutes gross negligence. As added by P.L.221-2007, SEC.15.
IC 13-23-13-1 Issuance of orders or corrective actions
Sec. 1. (a) The commissioner may, under rules adopted under
IC 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 to
undertake corrective action with respect to any release of a regulated
substance.
(b) If the commissioner determines that the corrective action will
be done properly and promptly by the owner or operator of the
underground storage tank from which the release occurs, the
commissioner may enter into an agreed order with the owner or
operator 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 under
IC 13-23-1-2, may undertake corrective action with respect to any
release of a regulated substance into the environment from an
underground storage tank if:
(1) that action is necessary, in the judgment of the
commissioner, 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) days
after a suspected or confirmed release is identified (or a
shorter time necessary to protect human health and the
environment) 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 with
respect to the release.
(B) An existing situation requires prompt action by the
commissioner under this section to protect human health and
the environment.
(C) The cost of corrective action at the site of an
underground storage tank exceeds the amount of financial
responsibility required under IC 13-23-1-2(c)(6),
IC 13-23-4-4, and IC 13-23-4-5 and, considering the class or
category of underground storage tank from which the release
occurred, expenditures by the state are necessary to ensure
an effective corrective action.
(D) The owner or operator of the underground storage tank
has failed or refused to comply with an order of the
commissioner or a judgment of a court of competent
jurisdiction under section 1 of this chapter to take corrective
action 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 this
chapter may include an exposure assessment. The cost of any
exposure assessment undertaken under this chapter may be recovered
under section 8 of this chapter as part of the costs of corrective
action. 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 of
this chapter; or
(2) undertaking corrective action under section 2 of this
chapter;
the commissioner shall give priority to releases of regulated
substances from underground storage tanks that pose the greatest
threat 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 section
1 of this chapter or undertaking corrective action under section 2 of
this 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 an
underground storage tank that, in the judgment of the commissioner,
poses little or no immediate threat to human health or to the
environment. As added by P.L.1-1996, SEC.13.
IC 13-23-13-5.5 Intentional surface spill or overfill; contribution to corrective
action 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 storage
tank is liable to the state only for corrective action to address a
surface spill or overfill of a regulated substance from the
underground storage tank that is intentionally caused by the person
during the delivery of the regulated substance into the underground
storage 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 described
in section 8(b)(1) or 8(b)(2) of this chapter. Except as otherwise
provided in subsection (c) and (d), an action for contribution under
this section may be brought in the same manner and is subject to the
same provisions as an action brought under section 8(b) of this
chapter.
(c) Before a person brings a contribution action under this section,
the person must provide written notice of intent to bring the action
by certified mail to:
(1) the department; and
(2) each person allegedly responsible for the surface spill or
overfill that occurred during the delivery of a regulated
substance into the underground storage tank.
(d) A person that provides notice under subsection (c) may not
bring a contribution action if:
(1) the department commences an administrative proceeding or
a civil action concerning the alleged surface spill or overfill not
later than ninety (90) days after receiving notice under
subsection (c)(1); or
(2) the person who receives the notice under subsection (c)(2)
agrees in writing, within ninety (90) days after receipt of the
notice, to remediate the surface spill or overfill in accordance
with 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 petroleum
storage tanks
Sec. 6. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the petroleum trust fund to pay the
following costs and expenses associated with underground petroleum
storage tanks:
(1) Costs incurred for corrective action conducted under
cooperative agreements entered into between the state and the
Administrator of the United States Environmental Protection
Agency under Section 9003(h)(7) of the federal Solid Waste
Disposal Act (42 U.S.C. 6991b(h)(7)), in accordance with the
provisions of the cooperative agreements.
(2) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(3) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions undertaken
under section 2 of this chapter.
(4) Administrative expenses and personnel expenses incurred
by 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 underground
storage tanks
Sec. 7. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the hazardous substances response
trust fund to pay the following expenses associated with underground
storage tanks used to contain regulated substances other than
petroleum:
(1) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(2) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions.
(3) Administrative expenses and personnel expenses incurred
by 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 a
release 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 States
government; 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 the
state for the actual costs of any corrective action taken under section
2 of this chapter or IC 13-7-20-19(b) (before its repeal) involving the
underground storage tank and is responsible for undertaking any
corrective action, including undertaking an exposure assessment,
ordered under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its
repeal), or IC 13-7-20-26 (before its repeal), or required by this title
or 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 an
underground storage tank, regardless of whether the corrective
action is undertaken voluntarily or under an order issued under
this 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 or
operated the underground storage tank at the time the release
occurred. A person who brings a successful action to receive a
contribution from an owner or operator is also entitled to receive
reasonable attorney's fees and court costs from the owner or operator.
An action brought under this subsection may be brought in a circuit
or superior court. In resolving a contribution claim, a court may
allocate the cost of a corrective action among the parties to the action
using equitable factors that the court determines are appropriate.
(c) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of
petroleum shall be deposited in the petroleum trust fund.
(d) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of a
regulated substance other than petroleum shall be deposited in the
hazardous substances response trust fund.
(e) The state may recover corrective action costs under this
section 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). An
action to recover corrective action costs under this section may be
combined, as appropriate, with an action to enforce an order issued
under section 1 of this chapter or IC 13-7-20-19(a) (before its repeal)
to require corrective action not already undertaken by the
commissioner. 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 of
costs under section 8 of this chapter, the commissioner may consider
the following:
(1) The amount of financial responsibility required to be
maintained under IC 13-23-1-2(c)(6).
(2) The factors considered in establishing that amount for
underground storage tanks containing petroleum under
IC 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 harmless
agreement, or other similar agreement or conveyance is not effective
to 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 of
release 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, against
any 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 take
or to assess the need for corrective action under this chapter or to
enforce this article, an owner or operator of an underground storage
tank, upon the request of an officer, an employee, or a designated
representative of the department, shall do the following:
(1) Furnish information relating to the underground storage tank
or associated equipment or contents.
(2) Conduct monitoring or testing of the underground storage
tank, including associated equipment or contents.
(3) Conduct monitoring or testing of soils, air, surface water, or
ground water surrounding the underground storage tank if:
(A) tank testing, using methods that are applicable to but not
in excess of federal standards, confirms a release of
regulated substance; or
(B) other evidence exists that gives cause for reasonable
suspicion that a release has occurred.
(4) Permit, at all reasonable times, the officer, employee, or
designated representative to have access to and to copy all
records relating to the underground storage tank.
(5) Permit the officer, employee, or designated representative
to have access for corrective action.
(b) For the purposes set forth in subsection (a), an officer, an
employee, or a designated representative of the department may enter
at reasonable times any establishment or other place where an
underground storage tank is located or where a regulated substance
may be present due to a release from an underground storage tank to
do the following:
(1) Inspect and obtain samples from any person of any regulated
substances 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 commenced
and 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 using
any emergency procurement powers existing under law.
(b) This article does not bar the commissioner from taking any
actions authorized under Section 9003(h)(7) of the federal Solid
Waste 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) and
IC 13-11-2-150(b), a person that is a lender and that holds evidence
of ownership primarily to protect a security interest in an
underground storage tank shall be considered to participate in
management (as defined in IC 13-11-2-151.2) of the underground
storage tank only if, while the borrower is still in possession of the
underground storage tank encumbered by the security interest, the
person:
(1) exercises decision making control over the environmental
compliance related to the underground storage tank such that
the person has undertaken responsibility for the hazardous
substance handling or disposal practices related to the
underground storage tank; or
(2) exercises control at a level comparable to that of a manager
of the underground storage tank such that the person has
assumed or manifested responsibility:
(A) for the overall management of the underground storage
tank encompassing day to day decision making with respect
to 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 of
environmental 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 the
release or threatened release of a hazardous substance at, from, or in
connection with an underground storage tank held in a fiduciary
capacity shall not exceed the assets held in the fiduciary capacity.
(b) Subsection (a) does not apply to the extent that a person is
liable under this title independently of the person's ownership of an
underground storage tank as a fiduciary or actions taken in a
fiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining to
a release or threatened release of a hazardous substance if negligence
of a fiduciary causes or contributes to the release or threatened
release.
(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 a
response action under 42 U.S.C. 9607(d)(1) or under the
direction of an on-scene coordinator designated under the
National Contingency Plan.
(2) Undertaking or directing another person to undertake other
lawful means of addressing a hazardous substance in connection
with the underground storage tank.
(3) Terminating the fiduciary relationship.
(4) Including in the terms of the fiduciary agreement a
covenant, warranty, or other term or condition that relates to
compliance with an environmental law, or monitoring,
modifying, or enforcing the term or condition.
(5) Monitoring or undertaking at least one (1) inspection of the
underground storage tank.
(6) Providing financial advice or other advice or counseling to
other parties to the fiduciary relationship, including the settlor
or beneficiary.
(7) Restructuring, renegotiating, or otherwise altering the terms
and conditions of the fiduciary relationship.
(8) Administering, as a fiduciary, an underground storage tank
that was contaminated before the fiduciary relationship began.
(9) Declining to take any of the actions referred to in
subdivisions (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 trust
or fiduciary relationship; or
(2) is a beneficiary and a fiduciary with respect to the same
fiduciary estate and, as a fiduciary, receives benefits that exceed
customary or reasonable compensation and incidental benefits
permitted under other applicable law.
(f) This section does not preclude a claim against the assets of the
estate or trust administered by:
(1) the fiduciary; or
(2) a nonemployee agent or independent contractor retained by
a fiduciary.
(g) This section does not:
(1) affect the rights, immunities, or other defenses that are
available under:
(A) this title; or
(B) other law that is applicable to a person subject to this
chapter; or
(2) create:
(A) any liability for a person; or
(B) a private right of action against a fiduciary or any other
person. As added by P.L.90-1998, SEC.21. IC 13-23-13-16 Presumptions concerning a governmental unit's tank activity on a
brownfield
Sec. 16. (a) A political subdivision or unit of federal or state
government that acquired ownership or control of an underground
storage tank on a brownfield by any of the means listed in
IC 13-11-2-150(c) and IC 13-11-2-151(b) may undertake any activity
in conjunction with:
(1) investigation or remediation of hazardous substances,
petroleum, and other pollutants associated with a brownfield,
including complying with land use restrictions and institutional
controls; or
(2) monitoring or closure of an underground storage tank;
without being considered as contributing to the existing release or
threatened release of a regulated substance on, in, or at the
brownfield unless existing contamination on the brownfield is
exacerbated due to gross negligence or intentional misconduct by the
political subdivision or unit of federal or state government.
(b) For purposes of subsection (a), reckless, willful, or wanton
misconduct constitutes gross negligence. As added by P.L.221-2007, SEC.15.
IC 13-23-13-1 Issuance of orders or corrective actions
Sec. 1. (a) The commissioner may, under rules adopted under
IC 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 to
undertake corrective action with respect to any release of a regulated
substance.
(b) If the commissioner determines that the corrective action will
be done properly and promptly by the owner or operator of the
underground storage tank from which the release occurs, the
commissioner may enter into an agreed order with the owner or
operator 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 under
IC 13-23-1-2, may undertake corrective action with respect to any
release of a regulated substance into the environment from an
underground storage tank if:
(1) that action is necessary, in the judgment of the
commissioner, 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) days
after a suspected or confirmed release is identified (or a
shorter time necessary to protect human health and the
environment) 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 with
respect to the release.
(B) An existing situation requires prompt action by the
commissioner under this section to protect human health and
the environment.
(C) The cost of corrective action at the site of an
underground storage tank exceeds the amount of financial
responsibility required under IC 13-23-1-2(c)(6),
IC 13-23-4-4, and IC 13-23-4-5 and, considering the class or
category of underground storage tank from which the release
occurred, expenditures by the state are necessary to ensure
an effective corrective action.
(D) The owner or operator of the underground storage tank
has failed or refused to comply with an order of the
commissioner or a judgment of a court of competent
jurisdiction under section 1 of this chapter to take corrective
action 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 this
chapter may include an exposure assessment. The cost of any
exposure assessment undertaken under this chapter may be recovered
under section 8 of this chapter as part of the costs of corrective
action. 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 of
this chapter; or
(2) undertaking corrective action under section 2 of this
chapter;
the commissioner shall give priority to releases of regulated
substances from underground storage tanks that pose the greatest
threat 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 section
1 of this chapter or undertaking corrective action under section 2 of
this 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 an
underground storage tank that, in the judgment of the commissioner,
poses little or no immediate threat to human health or to the
environment. As added by P.L.1-1996, SEC.13.
IC 13-23-13-5.5 Intentional surface spill or overfill; contribution to corrective
action 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 storage
tank is liable to the state only for corrective action to address a
surface spill or overfill of a regulated substance from the
underground storage tank that is intentionally caused by the person
during the delivery of the regulated substance into the underground
storage 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 described
in section 8(b)(1) or 8(b)(2) of this chapter. Except as otherwise
provided in subsection (c) and (d), an action for contribution under
this section may be brought in the same manner and is subject to the
same provisions as an action brought under section 8(b) of this
chapter.
(c) Before a person brings a contribution action under this section,
the person must provide written notice of intent to bring the action
by certified mail to:
(1) the department; and
(2) each person allegedly responsible for the surface spill or
overfill that occurred during the delivery of a regulated
substance into the underground storage tank.
(d) A person that provides notice under subsection (c) may not
bring a contribution action if:
(1) the department commences an administrative proceeding or
a civil action concerning the alleged surface spill or overfill not
later than ninety (90) days after receiving notice under
subsection (c)(1); or
(2) the person who receives the notice under subsection (c)(2)
agrees in writing, within ninety (90) days after receipt of the
notice, to remediate the surface spill or overfill in accordance
with 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 petroleum
storage tanks
Sec. 6. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the petroleum trust fund to pay the
following costs and expenses associated with underground petroleum
storage tanks:
(1) Costs incurred for corrective action conducted under
cooperative agreements entered into between the state and the
Administrator of the United States Environmental Protection
Agency under Section 9003(h)(7) of the federal Solid Waste
Disposal Act (42 U.S.C. 6991b(h)(7)), in accordance with the
provisions of the cooperative agreements.
(2) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(3) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions undertaken
under section 2 of this chapter.
(4) Administrative expenses and personnel expenses incurred
by 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 underground
storage tanks
Sec. 7. The commissioner, under rules adopted under
IC 13-23-1-2, may use money in the hazardous substances response
trust fund to pay the following expenses associated with underground
storage tanks used to contain regulated substances other than
petroleum:
(1) Expenses incurred by the state for the following:
(A) Corrective actions that are ordered or undertaken under
this chapter.
(B) Enforcement of this article.
(2) Expenses incurred by the state under section 8 of this
chapter in recovering the costs of corrective actions.
(3) Administrative expenses and personnel expenses incurred
by 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 a
release 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 States
government; 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 the
state for the actual costs of any corrective action taken under section
2 of this chapter or IC 13-7-20-19(b) (before its repeal) involving the
underground storage tank and is responsible for undertaking any
corrective action, including undertaking an exposure assessment,
ordered under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its
repeal), or IC 13-7-20-26 (before its repeal), or required by this title
or 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 an
underground storage tank, regardless of whether the corrective
action is undertaken voluntarily or under an order issued under
this 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 or
operated the underground storage tank at the time the release
occurred. A person who brings a successful action to receive a
contribution from an owner or operator is also entitled to receive
reasonable attorney's fees and court costs from the owner or operator.
An action brought under this subsection may be brought in a circuit
or superior court. In resolving a contribution claim, a court may
allocate the cost of a corrective action among the parties to the action
using equitable factors that the court determines are appropriate.
(c) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of
petroleum shall be deposited in the petroleum trust fund.
(d) Money recovered by the state under this section in connection
with any corrective action undertaken with respect to a release of a
regulated substance other than petroleum shall be deposited in the
hazardous substances response trust fund.
(e) The state may recover corrective action costs under this
section 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). An
action to recover corrective action costs under this section may be
combined, as appropriate, with an action to enforce an order issued
under section 1 of this chapter or IC 13-7-20-19(a) (before its repeal)
to require corrective action not already undertaken by the
commissioner. 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 of
costs under section 8 of this chapter, the commissioner may consider
the following:
(1) The amount of financial responsibility required to be
maintained under IC 13-23-1-2(c)(6).
(2) The factors considered in establishing that amount for
underground storage tanks containing petroleum under
IC 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 harmless
agreement, or other similar agreement or conveyance is not effective
to 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 of
release 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, against
any 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 take
or to assess the need for corrective action under this chapter or to
enforce this article, an owner or operator of an underground storage
tank, upon the request of an officer, an employee, or a designated
representative of the department, shall do the following:
(1) Furnish information relating to the underground storage tank
or associated equipment or contents.
(2) Conduct monitoring or testing of the underground storage
tank, including associated equipment or contents.
(3) Conduct monitoring or testing of soils, air, surface water, or
ground water surrounding the underground storage tank if:
(A) tank testing, using methods that are applicable to but not
in excess of federal standards, confirms a release of
regulated substance; or
(B) other evidence exists that gives cause for reasonable
suspicion that a release has occurred.
(4) Permit, at all reasonable times, the officer, employee, or
designated representative to have access to and to copy all
records relating to the underground storage tank.
(5) Permit the officer, employee, or designated representative
to have access for corrective action.
(b) For the purposes set forth in subsection (a), an officer, an
employee, or a designated representative of the department may enter
at reasonable times any establishment or other place where an
underground storage tank is located or where a regulated substance
may be present due to a release from an underground storage tank to
do the following:
(1) Inspect and obtain samples from any person of any regulated
substances 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 commenced
and 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 using
any emergency procurement powers existing under law.
(b) This article does not bar the commissioner from taking any
actions authorized under Section 9003(h)(7) of the federal Solid
Waste 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) and
IC 13-11-2-150(b), a person that is a lender and that holds evidence
of ownership primarily to protect a security interest in an
underground storage tank shall be considered to participate in
management (as defined in IC 13-11-2-151.2) of the underground
storage tank only if, while the borrower is still in possession of the
underground storage tank encumbered by the security interest, the
person:
(1) exercises decision making control over the environmental
compliance related to the underground storage tank such that
the person has undertaken responsibility for the hazardous
substance handling or disposal practices related to the
underground storage tank; or
(2) exercises control at a level comparable to that of a manager
of the underground storage tank such that the person has
assumed or manifested responsibility:
(A) for the overall management of the underground storage
tank encompassing day to day decision making with respect
to 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 of
environmental 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 the
release or threatened release of a hazardous substance at, from, or in
connection with an underground storage tank held in a fiduciary
capacity shall not exceed the assets held in the fiduciary capacity.
(b) Subsection (a) does not apply to the extent that a person is
liable under this title independently of the person's ownership of an
underground storage tank as a fiduciary or actions taken in a
fiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining to
a release or threatened release of a hazardous substance if negligence
of a fiduciary causes or contributes to the release or threatened
release.
(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 a
response action under 42 U.S.C. 9607(d)(1) or under the
direction of an on-scene coordinator designated under the
National Contingency Plan.
(2) Undertaking or directing another person to undertake other
lawful means of addressing a hazardous substance in connection
with the underground storage tank.
(3) Terminating the fiduciary relationship.
(4) Including in the terms of the fiduciary agreement a
covenant, warranty, or other term or condition that relates to
compliance with an environmental law, or monitoring,
modifying, or enforcing the term or condition.
(5) Monitoring or undertaking at least one (1) inspection of the
underground storage tank.
(6) Providing financial advice or other advice or counseling to
other parties to the fiduciary relationship, including the settlor
or beneficiary.
(7) Restructuring, renegotiating, or otherwise altering the terms
and conditions of the fiduciary relationship.
(8) Administering, as a fiduciary, an underground storage tank
that was contaminated before the fiduciary relationship began.
(9) Declining to take any of the actions referred to in
subdivisions (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 trust
or fiduciary relationship; or
(2) is a beneficiary and a fiduciary with respect to the same
fiduciary estate and, as a fiduciary, receives benefits that exceed
customary or reasonable compensation and incidental benefits
permitted under other applicable law.
(f) This section does not preclude a claim against the assets of the
estate or trust administered by:
(1) the fiduciary; or
(2) a nonemployee agent or independent contractor retained by
a fiduciary.
(g) This section does not:
(1) affect the rights, immunities, or other defenses that are
available under:
(A) this title; or
(B) other law that is applicable to a person subject to this
chapter; or
(2) create:
(A) any liability for a person; or
(B) a private right of action against a fiduciary or any other
person. As added by P.L.90-1998, SEC.21. IC 13-23-13-16 Presumptions concerning a governmental unit's tank activity on a
brownfield
Sec. 16. (a) A political subdivision or unit of federal or state
government that acquired ownership or control of an underground
storage tank on a brownfield by any of the means listed in
IC 13-11-2-150(c) and IC 13-11-2-151(b) may undertake any activity
in conjunction with:
(1) investigation or remediation of hazardous substances,
petroleum, and other pollutants associated with a brownfield,
including complying with land use restrictions and institutional
controls; or
(2) monitoring or closure of an underground storage tank;
without being considered as contributing to the existing release or
threatened release of a regulated substance on, in, or at the
brownfield unless existing contamination on the brownfield is
exacerbated due to gross negligence or intentional misconduct by the
political subdivision or unit of federal or state government.
(b) For purposes of subsection (a), reckless, willful, or wanton
misconduct constitutes gross negligence. As added by P.L.221-2007, SEC.15.
