CHAPTER 5. VOLUNTARY REMEDIATION OF HAZARDOUS SUBSTANCES AND PETROLEUM
IC 13-25-5
Chapter 5. Voluntary Remediation of Hazardous Substances and
Petroleum
IC 13-25-5-1
Intent of chapter
Sec. 1. (a) This chapter is intended to provide an alternative
procedure to assure compliance with the law and to encourage the
voluntary remediation of hazardous substances and petroleum.
(b) This section does not affect a person's legal obligations set
forth in 42 U.S.C. 6901 et seq. regardless of a person's participation
in 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 voluntary
remediation program under this chapter must submit an application
and a fee to the department as described under subsection (c).
(b) Except as provided under section 5(c) of this chapter, any
information submitted to the division of the department responsible
for reviewing and making determinations on applications under this
chapter is confidential between the applicant and the department
until the applicant and the commissioner sign a voluntary
remediation agreement.
(c) An application submitted under this section must meet the
following 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 threatened
release of the hazardous substance or petroleum at the site.
(3) Be accompanied by an application fee of one thousand
dollars ($1,000). However, a political subdivision is not
required to submit an application fee under this section.
(d) A fee collected under this section shall be deposited in the
voluntary 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 section
2(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 concerning
the 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 the
applicant is eligible to participate in the voluntary remediation
program under this chapter.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-5
Rejection of application; reasons; completeness; list of
information; department duties
Sec. 5. (a) The department may reject an application submitted
under section 2 of this chapter only for one (1) or more of the
following reasons:
(1) A state or federal enforcement action that concerns the
remediation of the hazardous substance or petroleum described
in the application is pending.
(2) A federal grant requires an enforcement action at the site.
(3) The condition of the hazardous substance or petroleum
described in the application constitutes an imminent and
substantial threat to human health or the environment.
(4) The application is not complete.
(b) If an application is rejected under subsection (a)(4), the
department, not more than forty-five (45) days after the department
receives the application, shall provide the applicant with a list of all
information needed to make the application complete. If the
department fails to comply with this subsection, the application shall
be considered completed for the purposes of this chapter.
(c) If the department rejects an application, the department shall
do 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 completed
application; 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 not
complete, submit a completed application without submitting an
additional 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's
application fee.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-7
Voluntary remediation investigation plan; voluntary remediation
work plan; contents
Sec. 7. (a) If the department determines an application is eligible
under section 4 of this chapter, the applicant may submit:
(1) a proposed voluntary remediation investigation plan to the
department;
(2) a proposed voluntary remediation work plan to the
department; or
(3) a voluntary remediation work plan for a completed
remediation project to the department.
(b) A proposed voluntary remediation work plan must include the
following:
(1) Detailed documentation of the investigation conducted by
the applicant in preparing the proposed voluntary remediation
work plan and a description of the work to be performed by the
applicant to determine the nature and extent of the actual or
threatened release.
(2) A proposed statement of work to accomplish the
remediation in accordance with guidelines established by the
department.
(3) Plans concerning the following:
(A) Quality assurance for the implementation of the
proposed remediation project.
(B) Descriptions of sampling and analysis.
(C) Health and safety considerations.
(D) Community relations and community comment in
planning, cleanup objectives, and implementation processes.
(E) Data management and record keeping.
(F) A proposed schedule concerning the implementation of
all tasks set forth in the proposed statement of work.
(c) A voluntary remediation work plan for a completed
remediation project must include the following:
(1) Detailed documentation of the investigation conducted by
the applicant in preparing the proposed voluntary remediation
work plan and a description of the work performed by the
applicant to determine the nature and extent of the actual or
threatened release.
(2) A statement of work performed to accomplish the
remediation in accordance with rules or guidelines established
by the department.
(3) Plans concerning the following:
(A) Quality assurance for the implementation of and, if
appropriate, plans for future oversight of the remediation
project.
(B) Descriptions of sampling and analysis conducted before
and 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 and
remediation methodology.
(4) Other information the department determines is necessary
to evaluate the work plan and determine if the remediation
objectives 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 reach
accord within reasonable time after good faith negotiations
Sec. 8. (a) Before the department evaluates a proposed voluntary
remediation work plan, the applicant who submitted the work plan
and the commissioner must enter into a voluntary remediation
agreement that sets forth the terms and conditions of the evaluation
and the implementation of the work plan. A voluntary remediation
agreement must include the following:
(1) Provisions for the following:
(A) A requirement that the department provide the applicant
with an itemized list of estimated costs the department may
incur under this chapter.
(B) The recovery of all reasonable costs that:
(i) are incurred by the department in the review and
oversight of the work plan;
(ii) are attributable to the voluntary remediation
agreement; and
(iii) exceed the fee submitted by the applicant under
section 2 of this chapter.
(C) A schedule of payments to be made by the applicant to
the department to recover the costs to the department.
(2) A mechanism to resolve disputes arising from the
evaluation, analysis, and oversight of the implementation of the
work plan, including any of the following:
(A) Arbitration.
(B) Adjudication under IC 4-21.5.
(C) A dispute resolution procedure provided under the
Indiana 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 the
work plan.
(B) Make a determination concerning the approval or
rejection of the work plan.
(6) A provision concerning applicable interagency coordination.
(7) A provision specifying the proposed remediation objectives
to be achieved on the site, as described in section 8.5 of this
chapter.
(8) The requirement that the applicant submit to the department
a proposed voluntary remediation work plan:
(A) not later than one hundred eighty (180) days after the
date the voluntary remediation agreement is signed; or
(B) after a longer period if the extension is agreed to by the
department and the applicant.
(9) Any other conditions considered necessary by the
commissioner or the applicant concerning the effective and
efficient implementation of this chapter.
(b) If an agreement is not reached between an applicant and the
commissioner within a reasonable time after good faith negotiations
have begun between the applicant and the commissioner:
(1) the applicant or the commissioner may withdraw from the
negotiations; and
(2) the department shall refund the unexpended part of the
applicant'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 to
protect human health and the environment not necessary under
certain circumstances; risk based remediation objectives and
proposals
Sec. 8.5. (a) A voluntary remediation work plan must specify the
remediation objectives for the site. Subsections (b) through (e) apply
to a site regardless of whether the site was entered into the voluntary
remediation program before July 1, 2009, or after June 30, 2009.
(b) The remediation objectives for each hazardous substance and
any petroleum on the site shall be based on:
(1) background levels of hazardous substances and petroleum
that occur naturally on the site; or
(2) an assessment of the risks pursuant to subsection (d) posed
by the hazardous substance or petroleum presently found on the
site taking into consideration the following:
(A) Expected future use of the site.
(B) Measurable risks to human health, natural resources, or
the 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 petroleum
is adequately characterized under the voluntary remediation
work plan, considering the remediation objectives developed
under this section; and
(2) the level of the hazardous substance or petroleum is
demonstrated to be below:
(A) background levels of the hazardous substances and
petroleum 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 the
environment.
(d) Risk based remediation objectives shall be based on one (1) of
the following:
(1) Levels of hazardous substances and petroleum calculated by
the department using standard equations and default values for
particular hazardous substances or petroleum.
(2) Levels of hazardous substances and petroleum calculated
using site specific data for the default values in the department's
standard equations.
(3) Levels of hazardous substances and petroleum developed
based on site specific risk assessments that take into account
site specific factors, including remedial measures, restrictive
covenants, 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 restrictive
covenants and environmental restrictive ordinances in evaluating risk
based 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 signed
a voluntary remediation agreement described under section 8 of this
chapter, the department or a person under contract with the
department shall do the following:
(1) Review and evaluate the site and the affected area
surrounding the site.
(2) Review and evaluate the documentation of the investigation
and feasibility study conducted by the applicant or the
applicant's representative for accuracy and thoroughness.
(3) Review and evaluate the proposed voluntary remediation
work plan for quality, efficiency, and safety based on guidelines
established by the department.
(4) Make a recommendation to the commissioner concerning
whether 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 voluntary
remediation work plan, the commissioner or the department may
request that an applicant submit additional or corrected information
to the department. An applicant may:
(1) comply with the request; or
(2) withdraw the applicant's proposed voluntary remediation
work plan from consideration.
As added by P.L.1-1996, SEC.15.
IC 13-25-5-10
Voluntary remediation work plan; approval, modification, or
rejection
Sec. 10. Subject to section 11 of this chapter, after receiving a
recommendation under section 9 of this chapter, the commissioner
shall:
(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 a
proposed voluntary remediation work plan under section 10 of this
chapter, the commissioner must:
(1) notify local government units located in a county affected by
the proposed voluntary remediation work plan of the work plan;
(2) provide that a copy of the proposed voluntary remediation
work plan be placed in at least one (1) public library in a county
affected by the work plan; and
(3) publish a notice requesting comments concerning the
proposed voluntary remediation work plan.
(b) A comment period of at least thirty (30) days must follow
publication of a notice under this section. During a comment period,
interested persons may do the following:
(1) Submit written comments to the commissioner concerning
the proposed voluntary remediation work plan.
(2) Request a public hearing concerning the proposed voluntary
remediation work plan.
(c) If the commissioner receives at least one (1) written request,
the commissioner may hold a public hearing in the geographical area
affected by the proposed voluntary remediation work plan on the
question of whether to approve or reject the work plan. The
commissioner shall consider all written comments and public
testimony.
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 voluntary
remediation work plan under section 10 of this chapter:
(1) the commissioner shall, under applicable provisions set forth
in IC 4-21.5-3-5(b) and IC 4-21.5-3-5(c), notify the applicant
and specify the reasons for rejecting the work plan; and
(2) the applicant may appeal the commissioner's decision under
IC 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 approves
a proposed voluntary remediation work plan under this chapter, the
commissioner shall notify the applicant in writing, under the
applicable provisions set forth in IC 4-21.5-3-5(b) and
IC 4-21.5-3-5(c), of the following:
(1) That the voluntary remediation work plan has been
approved 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 decision
under 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 voluntary
remediation work plan desires to proceed with the implementation of
the work plan, the applicant must notify the commissioner in writing
not more than sixty (60) days after the work plan is approved that the
applicant:
(1) intends to proceed with the implementation of the work
plan; and
(2) agrees to the starting and completion dates set forth by the
commissioner 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 voluntary
remediation work plan proceeds with the work plan, the department
or a person under contract with the department shall do the
following:
(1) Oversee and review the implementation of the voluntary
remediation work plan.
(2) Make regular reports to the commissioner concerning the
remediation.
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 has
successfully completed a voluntary remediation work plan approved
under this chapter, the commissioner shall certify that the work plan
has been completed by issuing the applicant a certificate of
completion.
(b) The issuance of a certificate of completion under this section
is a final agency action for purposes of IC 4-21.5.
(c) A person who receives a certificate under this section shall
attach a copy of the certificate to the recorded deed that concerns the
property 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 not
successfully completed a voluntary remediation work plan approved
under this chapter, the commissioner shall notify the applicant of this
determination 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 and
certificates of completion; immunity from actions; exceptions
Sec. 18. (a) If the commissioner issues a certificate to a person
under section 16 of this chapter, the governor shall also provide the
person with a covenant not to sue for any liability, including future
liability, or a claim resulting from or based upon the release or
threatened release of a hazardous substance or petroleum that is
addressed by an approved voluntary remediation work plan under
this chapter.
(b) A covenant not to sue issued under this section bars suit
against:
(1) a person who received the certificate of completion under
section 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 of
completion applies;
from all public or private claims arising under this title or rules
adopted under this title in connection with the release or threatened
release of a hazardous substance or petroleum that was the subject of
the approved voluntary remediation work plan, except as provided in
subsection (c).
(c) A covenant not to sue issued under this section may not apply
to future liability for a condition or the extent of a condition that:
(1) was present:
(A) on property that was involved in an approved and
completed voluntary remediation work plan; and
(B) at the time the commissioner issued the certificate of
completion under section 16 of this chapter; and
(2) was not known to the commissioner at the time the
commissioner issued the certificate of completion under section
16 of this chapter.
(d) A certificate of completion issued under section 16 of this
chapter may include conditions that must be performed or maintained
after issuance of the certificate.
(e) A covenant not to sue issued under this section may include
conditions that must be performed or maintained after issuance of the
covenant.
(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 a
person from liability to the federal government for claims based on
federal law.
(g) After an applicant and the department have signed a voluntary
remediation agreement, a person may not bring an action, including
an administrative action, against the applicant or any other person
proceeding under this chapter on behalf of the applicant for any
cause of action arising under this title or rules adopted under this title
and relating to the release or threatened release of a hazardous
substance 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 remediation
work plan within the time period established in section 8(a)(8)
of this chapter;
(2) the commissioner rejects a proposed voluntary remediation
work plan submitted in good faith and the rejection is upheld in
any appeal brought under section 12 of this chapter;
(3) the applicant or another person proceeding under this
chapter on behalf of the applicant fails to complete a voluntary
remediation in accordance with an approved voluntary
remediation work plan; or
(4) the commissioner withdraws the commissioner's approval of
the voluntary remediation work plan and the withdrawal is
upheld in any appeal under section 19 of this chapter.
However, if the commissioner withdraws approval of the plan under
section 19(a)(2) of this chapter, the commissioner may bring an
action, including an administrative action, against the applicant.
(h) A person who purchases property that is the subject of a
voluntary remediation agreement at the time the property is
purchased may not be subject to an enforcement action to the same
extent 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 remediation
work plan; appeal
Sec. 19. (a) This chapter does not prohibit or limit the
commissioner from withdrawing the commissioner's approval of a
voluntary remediation work plan at any time during the
implementation of the work plan if:
(1) the person implementing the work plan fails substantially to
comply 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 imminent
and substantial threat to human health or the environment.
(b) The withdrawal of the approval of a voluntary remediation
work 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 or
completes an approved voluntary remediation work plan has or may
have against a third party.
(b) A person who implements or completes an approved voluntary
remediation work plan under this chapter is not liable for claims for
contribution concerning matters addressed in:
(1) the work plan; or
(2) a certificate of completion issued to the person under section
16 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 to
provide a source of money for the department to implement this
chapter.
(b) The expenses of administering the fund shall be paid from the
money in the fund.
(c) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. Interest that accrues
from these investments shall be deposited in the fund.
(d) Money in the fund at the end of a state fiscal year does not
revert 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 the
environmental management special fund established by
IC 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 and
IC 13-14-8 to implement this chapter. The rules may include interim
or final remediation standards or provisions limiting the liability of
lenders associated with persons involved in voluntary remediation
projects under this chapter.
As added by P.L.1-1996, SEC.15.