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 undertake
removal or remedial action with respect to a release of petroleum at
a petroleum facility.
(b) If the commissioner determines that the removal or remedial
action will be done properly and promptly by the owner, operator, or
responsible person, the commissioner may enter into an agreed order
with the owner, operator, or responsible person to implement
necessary removal or remedial action.
(c) If the commissioner and the owner or operator or the
responsible party fail to agree on the appropriate and necessary
removal or remedial action to be taken, the dispute shall be resolved
under 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 commissioner
may undertake removal or remedial action with respect to a release
of petroleum at a petroleum facility if:
(1) the action is necessary, in the judgment of the
commissioner, to protect human health and the environment;
and
(2) a person cannot be found not later than ninety (90) days
after the suspected or confirmed release is identified who is:
(A) an owner or operator of the petroleum facility or a
responsible person; and
(B) capable of properly carrying out removal or remedial
action with respect to the release.
(b) In undertaking removal or remedial action under subsection
(a), the commissioner shall give priority to releases of petroleum
from a petroleum facility that pose the greatest threat to human
health and the environment.
(c) The commissioner may undertake or require removal or
remedial action with respect to a release of petroleum into the
environment if it is determined that an emergency exists under
IC 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 section
1 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 under
section 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 from
other responsible persons of costs paid to state; deposit of funds
recovered; removal or remedial action costs; administrative costs
Sec. 4. (a) Except where an owner or operator can prove that a
release 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 state
government, or the federal government;
(4) except as provided in subsection (b), an act or omission of
a 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 of
any response or remedial action taken under section 2 of this chapter
involving the petroleum facility. A responsible person is liable to the
state for the reasonable costs of any response or remedial action
taken under section 2 of this chapter involving the petroleum facility.
(b) The owner, operator, or responsible person is entitled to all
rights of the state to recover from another responsible person all or
a part of the costs described in subsection (a) incurred or paid to the
state by the owner, operator, or responsible person in an action
brought in a circuit or superior court with jurisdiction in the county
in which the release occurred.
(c) Money recovered by the state under this section in connection
with a removal or remedial action undertaken with respect to a
release of petroleum shall be deposited in the hazardous substances
response trust fund.
(d) The state may recover removal or remedial action costs under
this 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 which
the removal or the remedial action was undertaken.
(e) In an administrative action brought under this chapter, an
environmental law judge shall apportion the costs of a response or a
remedial action in proportion to each party's responsibility for a
release.
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 harmless
agreement, or similar agreement or conveyance is not effective to
transfer 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 threatened
release under this chapter;
to another person. However, this subsection does not bar an
agreement to insure, hold harmless, or indemnify a party to an
agreement 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, against
any 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 need
for removal or remedial action under section 1, 2, or 3 of this chapter
or to enforce this chapter, an owner, an operator, or a responsible
party of a facility, upon the request of an officer, an employee, or a
designated representative of the department, shall:
(1) furnish information relating to the facility or the facility's
associated equipment or contents;
(2) conduct testing of the facility or the facility's associated
equipment 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 are
similar to but do not exceed federal standards, confirms a
release of petroleum, or if other evidence exists that gives cause
for reasonable suspicion that a release has occurred;
(4) allow, at reasonable times, the officer, employee, or
designated representative to have access to and to copy records
that relate to the release at the facility; and
(5) allow the officer, employee, or designated representative to
have access for response, removal, or remedial action under
section 2 of this chapter.
(b) For the reasons described under subsection (a), an officer, an
employee, or a designated representative of the department may
enter, at reasonable times, a site where a facility is located or where
petroleum may be present because of a release from a facility to do
the following:
(1) Inspect and obtain samples of petroleum contained in the
facility 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 this
chapter.
(c) An action authorized under this section shall be commenced
and 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 hazardous
substances response trust fund to pay the following expenses
associated with petroleum facilities:
(1) Expenses incurred by the state for:
(A) a removal or remedial action that is ordered or
undertaken under section 2 of this chapter; and
(B) enforcement of this chapter.
(2) Expenses incurred by the state under section 4 of this
chapter in recovering the costs of a removal or remedial action.
(3) Administrative expenses and personnel expenses incurred
by 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, and
appeal 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 of
ownership primarily to protect a security interest in a petroleum
facility may be considered to participate in the management (as
defined in IC 13-11-2-151.3) of the petroleum at the petroleum
facility only if, while the borrower is still in possession of the
petroleum facility encumbered by the security interest, the person:
(1) exercises decision making control over the environmental
compliance related to the petroleum facility such that the person
has undertaken responsibility for the petroleum handling or
disposal practices related to the petroleum facility; or
(2) exercises control at a level comparable to that of a manager
of the petroleum facility such that the person has assumed or
manifested responsibility:
(A) for the overall management of the petroleum facility
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 petroleum facility other than the function of
environmental 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 the
release or threatened release of petroleum at, from, or in connection
with a petroleum facility 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:
(1) the person's ownership of the petroleum facility as a
fiduciary; or
(2) actions taken in a fiduciary capacity.
(c) Subsections (a) and (d) do not limit the liability pertaining to
a release or threatened release of petroleum 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 petroleum facility.
(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
petroleum facility.
(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, a vessel or facility 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.23.