First Regular Session 110th General Assembly (1997)


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SENATE ENROLLED ACT No. 360



    AN ACT to amend the Indiana Code concerning the environment and to make an appropriation.

Be it enacted by the General Assembly of the State of Indiana:


SOURCE: IC 6-1.1-42; (97)SE0360.1.1. -->     SECTION 1. IC 6-1.1-42 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]:
    Chapter 42. Brownfield Revitalization Zone Tax Abatement
    Sec. 1. As used in this chapter, "brownfield" has the meaning set forth in IC 13-11-2-19.3.
    Sec. 2. As used in this chapter, "designating body" means the following:
        (1) For an area located in an unincorporated area in a county that does not contain a consolidated city, the county fiscal body.
        (2) For an area located in a city or town in a county that does not contain a consolidated city, the city or town fiscal body.
        (3) For an area located in a county containing a consolidated city, the metropolitan development commission.     Sec. 3. As used in this chapter, "remediation" has the meaning set forth in IC 13-11-2-186.
    Sec. 4. As used in this chapter, "zone" means a brownfield revitalization zone established under this chapter.
    Sec. 5. (a) A person may apply to a designating body to designate an area as a brownfield revitalization zone.
    (b) An application under this section must:
        (1) be submitted to the designating body before the initiation of a voluntary remediation under IC 13-25-5 ;
        (2) include sufficient information for the designating body to declare the area a zone; and
        (3) be in the form prescribed by the state board of tax commissioners.
    Sec. 6. Not later than the date that the designating body adopts a resolution under section 9 of this chapter, the applicant shall submit a statement of public benefits to the designating body. The statement of benefits must include the following information:
        (1) A description of the proposed remediation and redevelopment.
        (2) An estimate of the number of individuals who will be employed or whose employment will be retained by the person as a result of the remediation and redevelopment and an estimate of the annual salaries of these individuals.
        (3) An estimate of the value of the remediation and redevelopment.
The statement of benefits may be incorporated in a designation application. A statement of benefits is a public record that may be inspected and copied under IC 5-14-3-3.
    Sec. 7. A designating body may do the following:
        (1) Impose a fee for filing an application to designate an area as a zone or to approve a deduction. The fee may be sufficient to defray actual processing and administrative costs associated with the application.
        (2) Establish general written standards for declaring an area as a zone or granting a deduction under this chapter. The written standards must be reasonably related to accomplishing the purposes of this chapter.
    Sec. 8. If a designating body proposes to designate a zone, the designating body shall either:
        (1) prepare maps and plats that identify the proposed brownfield revitalization zone; or         (2) prepare a simplified description of the boundaries of the brownfield revitalization zone by describing its location in relation to public ways, streams, or otherwise.
    Sec. 9. After the submission of a statement of benefits under section 6 of this chapter and the compilation of the materials described in section 8 of this chapter, the designating body may adopt a resolution to declare the area a brownfield revitalization zone.
    Sec. 10. A designating body that adopts a resolution under section 9 of this chapter, shall do the following:
        (1) Publish notice of the adoption and substance of the resolution in accordance with IC 5-3-1.
        (2) File the following information with each taxing unit that has authority to levy property taxes in the geographic area where the zone is located:
            (A) A copy of the notice required by subdivision (1).
            (B) A statement containing substantially the same information as a statement of benefits filed with the designating body under section 6 of this chapter.
The notice must state that a description of the affected area is available and can be inspected in the county assessor's office. The notice must also name a date when the designating body will receive and hear all remonstrances and objections from interested persons. The designating body shall file the information required by subdivision (2) with the officers of the taxing unit who are authorized to fix budgets, tax rates, and tax levies under IC 6-1.1-17-5 at least ten (10) days before the date of the public hearing.
    Sec. 11. The designating body must review the statement of benefits required under section 6 of this chapter and conduct a public hearing on the creation of the zone.
    Sec. 12. (a) The designating body shall determine whether an area should be designated a brownfield revitalization zone.
    (b) A designating body may designate an area as a brownfield revitalization zone only if the following findings are made in the affirmative:
        (1) The applicant:
            (A) has never had an ownership interest in an entity that contributed; and
            (B) has not contributed;
        to contamination (as defined in IC 13-11-2-43 ) that is the subject of the voluntary remediation, as determined under the written standards adopted by the department of environmental management.
        (2) The area described in section 8 of this chapter qualifies as a brownfield, as determined under the written standards adopted by the department of environmental management.
        (3) The area described in section 8 of this chapter is substantially under-utilized or nonproductive without remediation.
        (4) The applicant can successfully obtain a certificate of completion of a voluntary remediation for the area described in section 8 of this chapter under IC 13-25-5-16.
        (5) The estimate of the value of the remediation and redevelopment is reasonable for projects of that nature.
        (6) The estimate of the number of individuals who will be employed or whose employment will be retained can be reasonably expected to result from the proposed described remediation and redevelopment.
        (7) The estimate of the annual salaries of those individuals who will be employed or whose employment will be retained can be reasonably expected to result from the proposed described remediation and redevelopment.
        (8) Any other benefits about which information was requested are benefits that can be reasonably expected to result from the proposed described remediation and redevelopment.
        (9) The totality of benefits is sufficient to justify the establishment of a zone.
    Sec. 13. (a) After considering the evidence, the designating body shall take final action determining whether the qualifications for a brownfield revitalization zone have been met and confirming, modifying and confirming, or rescinding the resolution. This determination is final except that an appeal may be taken and heard as provided under sections 14 and 15 of this chapter.
    (b) The designation of an area as a brownfield revitalization zone expires on the earliest of the following:
        (1) The date that the designating body determines that the applicant has failed to comply with the statement of benefits under section 30 of this chapter.
        (2) The date that the designating body determines that the applicant has failed to make reasonable progress towards the completion of the remediation. A designating body may not make a determination under this subdivision before a date that is at least two (2) years after the date an area is designated as a brownfield revitalization zone.
        (3) December 31 of the last year that the applicant is eligible for a deduction granted under section 24 of this chapter.
    Sec. 14. A person who filed a written remonstrance with the designating body before the adjournment of the public hearing required under section 11 of this chapter and who is aggrieved by the final action taken may, within ten (10) days after that final action is taken under section 13 of this chapter, initiate an appeal of that action by filing in the office of the clerk of the circuit or superior court a copy of the order of the designating body and the person's remonstrance against that order, together with a bond conditioned to pay the costs of the appeal if the appeal is determined against the person. The only ground of appeal that the court may hear is whether the proposed project will meet the qualifications for granting an assessed valuation deduction for the property under this chapter. The burden of proof is on the appellant.
    Sec. 15. An appeal under section 14 of this chapter shall be promptly heard by the court without a jury. All remonstrances upon which an appeal has been taken shall be consolidated and heard and determined within thirty (30) days after the time of the filing of the appeal. The court shall hear evidence on the appeal, and may confirm the final action of the designating body or sustain the appeal. The judgment of the court is final and conclusive, unless an appeal is taken as in other civil actions.
    Sec. 16. The procedures described in sections 17 through 26 of this chapter may be combined with the procedures required under sections 4 through 15 of this chapter to designate an area as a zone.
    Sec. 17. (a) A person may apply for an assessed valuation deduction for:
        (1) real property; and
        (2) personal property, other than inventory (as defined in IC 6-1.1-3-11 );
located in an area designated as a brownfield revitalization zone.
    (b) An application for a deduction for an improvement to a brownfield revitalization zone or personal property located in a brownfield revitalization area must:
        (1) be submitted to the designating body before the date that the improvement is initiated or, if the deduction is for personal property, the property is brought into the area;
        (2) contain sufficient information for the designating body to approve the deduction; and
        (3) be submitted in the form prescribed by the state board of tax commissioners.
    Sec. 18. (a) A person that applies for an assessed valuation deduction shall submit a statement of benefits for the deduction to the designating body before the date specified in section 17 of this chapter.
    (b) The statement of benefits must:
        (1) describe the property that is the subject of the application;
        (2) estimate the value of the property that is the subject of the application; and
        (3) contain the information required for a statement of benefits described in section 6 of this chapter.
    Sec. 19. After the submission of a statement of benefits under section 19 of this chapter, the designating body may adopt a resolution to approve a deduction.
    Sec. 20. A designating body that adopts a resolution under section 20 of this chapter, shall do the following:
        (1) Publish notice of the adoption and substance of the resolution in accordance with IC 5-3-1.
        (2) File the following information with each taxing unit that has authority to levy property taxes in the geographic area where the zone is located:
            (A) A copy of the notice required by subdivision (1).
            (B) A statement containing substantially the same information as a statement of benefits filed with the designating body under section 18 of this chapter.
The notice must state that a description of the affected area is available and can be inspected in the county assessor's office. The notice must also name a date when the designating body will receive and hear all remonstrances and objections from interested persons. The designating body shall file the information required by subdivision (2) with the officers of the taxing unit who are authorized to fix budgets, tax rates, and tax levies under IC 6-1.1-17-5 at least ten (10) days before the date of the public hearing.
    Sec. 21. The designating body must review the statement of benefits required under section 18 of this chapter and conduct a public hearing on the proposed deduction.
    Sec. 22. (a) The designating body shall determine whether to approve a deduction.
    (b) A designating body may not grant a deduction for a facility described in IC 6-1.1-12.1-3 (e).
    (c) A property owner may not receive a deduction under this chapter for repairs or improvements to real property if the owner receives a deduction under either IC 6-1.1-12.1 , IC 6-1.1-12-18 , IC 6-1.1-12-22 , or IC 6-1.1-12-28.5 for the same property.
    (d) A designating body may approve a deduction only if the following findings are made in the affirmative:
        (1) The applicant:
            (A) has never had an ownership interest in an entity that contributed; and
            (B) has not contributed;
        to contamination (as defined in IC 13-11-2-43 ) that is the subject of the voluntary remediation, as determined under the written standards adopted by the department of environmental management.
        (2) The proposed improvement or property will be located in a zone.
        (3) The estimate of the value of the remediation and redevelopment is reasonable for projects of that nature.
        (4) The estimate of the number of individuals who will be employed or whose employment will be retained can be reasonably expected to result from the proposed described remediation and redevelopment.
        (5) The estimate of the annual salaries of those individuals who will be employed or whose employment will be retained can be reasonably expected to result from the proposed described remediation and redevelopment.
        (6) Any other benefits about which information was requested are benefits that can be reasonably expected to result from the proposed described remediation and redevelopment.
        (7) The totality of benefits is sufficient to justify the deduction.
    Sec. 23. The designating body may do the following:
        (1) Limit the type of deductions that will be allowed within the zone to either the deduction allowed under section 24 of this chapter.         (2) Limit the dollar amount of the individual or aggregate deductions that will be allowed with respect to personal property.
        (3) Limit the dollar amount of the deduction that will be allowed with respect to real property.
        (4) Impose reasonable conditions for allowing the deduction for tangible property under this chapter. The conditions must have a reasonable relationship to the development objectives of the area in which the designating body has jurisdiction.
To exercise one (1) or more of these powers a designating body must include this fact in the resolution finally passed under section 13 of this chapter.
    Sec. 24. (a) After considering the evidence, the designating body shall take final action determining whether the qualifications for deduction have been met and confirming, modifying and confirming, or rescinding the resolution. For each deduction granted by the designating body, the designating body shall state in the resolution granted the deduction whether the deduction is for three (3) six (6), or ten (10) years. This determination is final except that an appeal may be taken and heard as provided under sections 25 and 26 of this chapter.
    (b) A determination to grant a deduction under this chapter may be made:
        (1) as part of the resolution adopted under section 13 of this chapter; or
        (2) by resolution adopted within sixty (60) days after receiving a copy of a property owner's certified deduction application from the county auditor. A certified copy of the resolution shall be sent to the county auditor.
    (c) The grant allowing a brownfield revitalization zone deduction expires on the earliest of the following:
        (1) The date that the designating body determines that the applicant has failed to make reasonable progress towards the completion of the remediation. A designating body may not make a determination under this subdivision before a date that is at least two (2) years after the date an area is designated as a brownfield revitalization zone.
        (2) December 31 of the last year of the deduction.
            (A) files a certified deduction application under section 27 of this chapter; and
            (B) claims a deduction under this section.         (3) The date the zone expires.
        (4) The date that the designating body determines that the applicant has failed to comply with the statement of benefits under section 30 of this chapter.
    Sec. 25. A person who filed a written remonstrance with the designating body before the adjournment of the public hearing required in section 21 of this chapter and who is aggrieved by the final action taken may, within ten (10) days after that final action under section 24 of this chapter, initiate an appeal of that action by filing in the office of the clerk of the circuit or superior court a copy of the order of the designating body and the person's remonstrance against that order, together with a bond conditioned to pay the costs of the appeal if the appeal is determined against the person. The only ground of appeal that the court may hear is whether the proposed project will meet the qualifications for granting an assessed valuation deduction for the property under this chapter. The burden of proof is on the appellant.
    Sec. 26. An appeal under section 25 of this chapter shall be promptly heard by the court without a jury. All remonstrances upon which an appeal has been taken shall be consolidated and heard and determined within thirty (30) days after the time of the filing of the appeal. The court shall hear evidence on the appeal, and may confirm the final action of the designating body or sustain the appeal. The judgment of the court is final and conclusive, unless an appeal is taken as in other civil actions.
    Sec. 27. (a) A property owner who desires to obtain the deduction provided by section 24 of this chapter must file a certified deduction application, on forms prescribed by the state board of tax commissioners, with the auditor of the county in which the property is located. Except as otherwise provided in subsection (b) or (e), the deduction application must be filed before May 10 of the year in which the addition to assessed valuation is made.
    (b) If notice of the addition to assessed valuation or new assessment for any year is not given to the property owner before April 10 of that year, the deduction application required by this section may be filed not later than thirty (30) days after the date such a notice is mailed to the property owner at the address shown on the records of the township assessor.
    (c) The deduction application required by this section must contain the following information:         (1) The name of each owner of the property.
        (2) A certificate of completion of a voluntary remediation under IC 13-25-5-16.
        (3) Proof that each owner who is applying for the deduction:
            (A) has never had an ownership interest in an entity that contributed; and
            (B) has not contributed;
        to contamination (as defined in IC 13-11-2-43 ) that is the subject of the voluntary remediation, as determined under the written standards adopted by the department of environmental management.
        (4) Proof that the deduction was approved by the appropriate designating body.
        (5) A description of the property for which a deduction is claimed in sufficient detail to afford identification.
        (6) The assessed value of the improvements before remediation and redevelopment.
        (7) The increase in the assessed value of improvements resulting from remediation and redevelopment
        (8) The amount of the deduction claimed for the first year of the deduction.
    (d) A deduction application filed under subsection (a) or (b) is applicable for the year in which the addition to assessed value or assessment of a new structure is made and each subsequent year to which the deduction applies under the resolution adopted under section 24 of this chapter.
    (e) A property owner who desires to obtain the deduction provided by section 24 of this chapter but who has failed to file a deduction application within the dates prescribed in subsection (a) or (b) may file a deduction application between March 1 and May 10 of a subsequent year which is applicable for the year filed and the subsequent years without any additional deduction application being filed for the amounts of the deduction which would be applicable to such years under this chapter if such a deduction application had been filed in accordance with subsection (a) or (b).
    (f) On verification of the correctness of a deduction application by the assessor of the township in which the property is located, the county auditor shall, if the property is covered by a resolution adopted under section 24 of this chapter, the county auditor shall make the appropriate deduction.     (g) The amount and period of the deduction provided for property by section 24 of this chapter are not affected by a change in the ownership of the property if the new owner of the property:
        (1) is a person that:
            (A) has never had an ownership interest in an entity that contributed; and
            (B) has not contributed;
        to contamination (as defined in IC 13-11-2-43 ) that is the subject of the voluntary remediation, as determined under the written standards adopted by the department of environmental management;
        (2) continues to use the property in compliance with any standards established under section 7 of this chapter; and
        (3) files an application in the manner provided by subsection (e).
    (h) The township assessor shall include a notice of the deadlines for filing a deduction application under subsections (a) and (b) with each notice to a property owner of an addition to assessed value or of a new assessment.
    Sec. 28. (a) Subject to this section, the amount of the deduction which the property owner is entitled to receive under this chapter for a particular year equals the product of:
        (1) the increase in the assessed value resulting from the remediation and redevelopment in the zone or the location of personal property in the zone; multiplied by
        (2) the percentage determined under subsection (b).
    (b)
The percentage to be used in calculating the deduction under subsection (a) is as follows:
        (1) For deductions allowed over a three (3) year period:
    YEAR OF DEDUCTION     PERCENTAGE
    1st    100%
    2nd    66%
    3rd    33%
        (2) For deductions allowed over a six (6) year period:
    YEAR OF DEDUCTION     PERCENTAGE
    1st    100%
    2nd    85%
    3rd    66%
    4th    50%
    5th    34%
    6th    17%         (3) For deductions allowed over a ten (10) year period:
    YEAR OF DEDUCTION     PERCENTAGE
    1st    100%
    2nd    95%
    3rd    80%
    4th    65%
    5th    50%
    6th    40%
    7th    30%
    8th    20%
    9th    10%
    10th    5%
    (c) The amount of the deduction determined under subsection (a) shall be adjusted in accordance with this subsection in the following circumstances:
        (1) If a general reassessment of real property occurs within the particular period of the deduction, the amount determined under subsection (a)(1) shall be adjusted to reflect the percentage increase or decrease in assessed valuation that resulted from the general reassessment.
        (2) If an appeal of an assessment is approved that results in a reduction of the assessed value of the redeveloped or rehabilitated property, the amount of any deduction shall be adjusted to reflect the percentage decrease that resulted from the appeal.
        (3) The amount of the deduction may not exceed the limitations imposed by the designating body under section 23 of this chapter.
        (4) The amount of the deduction must be proportionally reduced by the proportionate ownership of the property by a person that:
            (A) has an ownership interest in an entity that contributed; or
            (B) has contributed;
        to contamination (as defined in IC 13-11-2-43 ) that is the subject of the voluntary remediation, as determined under the written standards adopted by the department of environmental management.
The state board of tax commissioners shall adopt rules under IC 4-22-2 to implement this subsection.
    Sec. 29. A property owner who files a deduction application under section 27 of this chapter must provide the county auditor and the designating body with information showing the extent to which there has been compliance with the statement of benefits filed under sections 6 and 18 of this chapter.
    Sec. 30. Within forty-five (45) days after receipt of the information described in section 29 of this chapter, the designating body may determine whether the property owner has substantially complied with the statement of benefits filed under sections 6 and 18 of this chapter. If the designating body determines that the property owner has not substantially complied with the statement of benefits and that the failure to substantially comply was not caused by factors beyond the control of the property owner (such as declines in demand for the property owner's products or services), the designating body shall mail a written notice to the property owner. The written notice must include the following provisions:
        (1) An explanation of the reasons for the designating body's determination.
        (2) The date, time, and place of a hearing to be conducted by the designating body for the purpose of further considering the property owner's compliance with the statement of benefits. The date of the hearing may not be more than thirty (30) days after the date on which the notice is mailed.
If a notice mailed to a property owner concerns a statement of benefits approved under section 4.5 of this chapter, the designating body shall also mail a copy of the notice to the state board of tax commissioners.
    (c) On the date specified in the notice described in subsection (b)(2), the designating body shall conduct a hearing for the purpose of further considering the property owner's compliance with the statement of benefits. Based on the information presented at the hearing by the property owner and other interested parties, the designating body shall again determine whether the property owner has made reasonable efforts to substantially comply with the statement of benefits and whether any failure to substantially comply was caused by factors beyond the control of the property owner. If the designating body determines that the property owner has not made reasonable efforts to comply with the statement of benefits, the designating body shall adopt a resolution terminating the property owner's deduction under section 24 of this chapter. If the designating body adopts such a resolution, the deduction does not apply to the next installment of property taxes owed by the property owner or to any subsequent installment of property taxes.
    (d) If the designating body adopts a resolution terminating a deduction under subsection (c), the designating body shall immediately mail a certified copy of the resolution to:
        (1) the property owner;
        (2) the county auditor; and
        (3) the state board of tax commissioners if the deduction was granted under section 4.5 of this chapter.
The county auditor shall remove the deduction from the tax duplicate and shall notify the county treasurer of the termination of the deduction. If the designating body's resolution is adopted after the county treasurer has mailed the statement required by IC 6-1.1-22-8 , the county treasurer shall immediately mail the property owner a revised statement that reflects the termination of the deduction.
    (e) A property owner whose deduction is terminated by the designating body under this section may appeal the designating body's decision by filing a complaint in the office of the clerk of the circuit or superior court together with a bond conditioned to pay the costs of the appeal if the appeal is determined against the property owner. An appeal under this subsection shall be promptly heard by the court without a jury and determined within thirty (30) days after the time of the filing of the appeal. The court shall hear evidence on the appeal and may confirm the action of the designating body or sustain the appeal. The judgment of the court is final and conclusive unless an appeal is taken as in other civil actions.
    (f) If an appeal under subsection (e) is pending, the taxes resulting from the termination of the deduction are not due until after the appeal is finally adjudicated and the termination of the deduction is finally determined.
    Sec. 31. (a) A statement of benefits submitted to a designating body under this chapter is a public document.
    (b) The following information is a public record if filed under section 29 of this chapter:
        (1) The name and address of the taxpayer.
        (2) The location and description of the new manufacturing equipment for which the deduction was granted.
        (3) Any information concerning the number of employees at the facility where the new manufacturing equipment is located, including estimated totals that were provided as part of the statement of benefits.
        (4) Any information concerning the total of the salaries paid to those employees, including estimated totals that were provided as part of the statement of benefits.
        (5) Any information concerning the amount of solid waste or hazardous waste converted into energy or other useful products by the new manufacturing equipment.
        (6) Any information concerning the assessed value of the new manufacturing equipment, including estimates that were provided as part of the statement of benefits.
    (c) The following information is confidential if filed under section 29 of this chapter.
        (1) Any information concerning the specific salaries paid to individual employees by the owner of the new manufacturing equipment.
        (2) Any information concerning the cost of the new manufacturing equipment.
    Sec. 32. (a) Each calendar year, the county auditor shall publish the following in a newspaper of general interest and readership and not one of limited subject matter:
        (1) A list of the approved deduction applications that were filed under this chapter during that year. The list must contain the following:
            (A) The name and address of each person approved for or receiving a deduction that was filed for during the year.
            (B) The amount of each deduction that was filed for during the year.
            (C) The years for which each deduction that was filed for during the year will be available.
            (D) The total amount for all deductions that were filed for and granted during the year.
        (2) The total amount of all deductions for real property that were in effect under section 3 of this chapter during the year.
        (3) The total amount of all deductions for personal property that were in effect under section 4.5 of this chapter during the year.
    (b) The county auditor shall file the information described in subsection (a)(2) and (a)(3) with the state board of tax commissioners each calendar year.
    Sec. 33. (a) This section applies only to the following requirements under section 3 of this chapter:
        (1) Failure to provide the completed statement of benefits form to the designating body before the hearing required under this chapter.
        (2) Failure to submit the completed statement of benefits form to the designating body before the initiation of the remediation and redevelopment or the location in the zone of the property for which the person desires to claim a deduction under this chapter.
        (3) Failure to designate an area as a brownfield revitalization zone before the initiation of the rehabilitation and redevelopment for which the person desires to claim a deduction under this chapter.
        (4) Failure to make the required findings of fact before designating an area as a brownfield revitalization zone or authorizing a deduction.
    (b) This section does not grant a designating body the authority to exempt a person from filing a statement of benefits or exempt a designating body from making findings of fact.
    (c) A designating body may by resolution waive noncompliance described under subsection (a) under the terms and conditions specified in the resolution.

SOURCE: IC 13-11-2-16; (97)SE0360.1.2. -->     SECTION 2. IC 13-11-2-16 , AS AMENDED BY P.L.124-1996, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 16. (a) "Authority", for purposes of IC 13-22-10 , refers to the Indiana hazardous waste facility site approval authority.
    (b) "Authority", for purposes of IC 13-19-5 and IC 13-23-10 , refers to the Indiana development finance authority created under IC 4-4-11.
SOURCE: IC 13-11-2-19.3; (97)SE0360.1.3. -->     SECTION 3. IC 13-11-2-19.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 19.3. "Brownfield" means an industrial or a commercial parcel of real estate:
        (1) that:
            (A) is abandoned or inactive; or
            (B) may not be operated at its appropriate use; and
        (2) on which expansion or redevelopment is complicated;
because of the actual or perceived presence of a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environment.
SOURCE: IC 13-11-2-19.5; (97)SE0360.1.4. -->     SECTION 4. IC 13-11-2-19.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 19.5. "Budget agency" refers to the budget agency created under IC 4-12-1-3.
SOURCE: IC 13-11-2-70; (97)SE0360.1.5. -->     SECTION 5. IC 13-11-2-70 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 70. (a) "Environmental defect", for purposes of IC 13-25-3 , means an environmentally related commission, omission, activity, or condition that meets at least one (1) of the following conditions:
        (1) Constitutes a material violation of an environmental:
            (A) statute;
            (B) regulation; or
            (C) ordinance.
        (2) Would require remedial activity under an environmental:
            (A) statute;
            (B) regulation; or
            (C) ordinance.
        (3) Presents a substantial endangerment to at least one (1) of the following:
            (A) The public health.
            (B) The public welfare.
            (C) The environment.
        (4) Would have a material, adverse effect on the market value of the property or of an abutting property.
        (5) Would prevent or materially interfere with another party's ability to obtain a permit or license that is required under an environmental:
            (A) statute;
            (B) regulation; or
            (C) ordinance;
        to operate the property or a facility or process on the property.
     (b) The term does not include a condition that is the subject of a voluntary remediation that received a certificate of completion from the department under IC 13-25-5-16.
SOURCE: IC 13-11-2-70.3; (97)SE0360.1.6. -->     SECTION 6. IC 13-11-2-70.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 70.3. "Environmental legal action", for purposes of IC 13-30-9 , means any legal action brought to recover reasonable costs associated with a removal or remedial action involving a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environment.
SOURCE: IC 13-11-2-83; (97)SE0360.1.7. -->     SECTION 7. IC 13-11-2-83 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 83. (a) "Financial assistance agreement", for purposes of IC 13-18-13 , refers to an agreement among:
        (1) the department;
        (2) the budget agency; and
        (3) a political subdivision;
establishing the terms and conditions of a loan or other financial assistance by the state to the political subdivision.
     (b) "Financial assistance agreement", for purposes of IC 13-19-5 , means an agreement between the authority and a political subdivision that:
        (1) is approved by the budget agency; and
        (2) establishes the terms and conditions of a loan or other financial assistance by the state to the political subdivision.

SOURCE: IC 13-11-2-87; (97)SE0360.1.8. -->     SECTION 8. IC 13-11-2-87 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 87. (a) "Fund", for purposes of IC 13-14-12 , refers to the environmental management special fund.
    (b) "Fund", for purposes of IC 13-15-10 , refers to the waste facility operator trust fund.
    (c) "Fund", for purposes of IC 13-15-11 , refers to the environmental management permit operation fund.
    (d) "Fund", for purposes of IC 13-17-6 , refers to the asbestos trust fund.
    (e) "Fund", for purposes of IC 13-17-8 , refers to the Title V operating permit program trust fund.
    (f) "Fund", for purposes of IC 13-18-8-5 , refers to a sanitary fund.
    (g) "Fund", for purposes of IC 13-18-13 , refers to the wastewater revolving loan fund established by IC 13-18-13-2. The term does not include the supplemental fund.
     (h) "Fund", for purposes of IC 13-19-5 , refers to the environmental remediation revolving loan fund established by IC 13-19-5-2.
    (h) (i) "Fund", for purposes of IC 13-20-4 , refers to the municipal waste transportation fund.
    (i) (j) "Fund", for purposes of IC 13-20-13 , refers to the waste tire management fund.
    (j) (k) "Fund", for purposes of IC 13-20-22 , refers to the state solid waste management fund.
    (k) (l) "Fund", for purposes of IC 13-21-7 , refers to the waste management district bond fund.
    (l) (m) "Fund", for purposes of IC 13-21-13-2 , refers to a district solid waste management fund.
    (m) (n) "Fund", for purposes of IC 13-23-6 , refers to the underground petroleum storage tank trust fund.
    (n) (o) "Fund", for purposes of IC 13-23-7 , refers to the underground petroleum storage tank excess liability fund.
    (o) (p) "Fund", for purposes of IC 13-23-10 , refers to the underground storage tank guaranty fund.
    (p) (q) "Fund", for purposes of IC 13-25-4 , refers to the hazardous substances response trust fund.
    (q) (r) "Fund", for purposes of IC 13-25-5 , refers to the voluntary remediation fund.
    (r) (s) "Fund", for purposes of IC 13-28-2 , refers to the voluntary compliance fund.
SOURCE: IC 13-11-2-98; (97)SE0360.1.9. -->     SECTION 9. IC 13-11-2-98 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 98. "Hazardous substance", for purposes of:
         (1) IC 13-19-5 ;
        (2)
IC 13-25-4 ; and
         (3) IC 13-25-5 ;
has the meaning set forth in Section 101 of CERCLA (42 U.S.C. 9601). The term includes any substance that the solid waste management board determines to be hazardous under environmental management laws.
SOURCE: IC 13-11-2-164; (97)SE0360.1.10. -->     SECTION 10. IC 13-11-2-164 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 164. (a) "Political subdivision", for purposes of IC 13-18-13 , means:
        (1) a political subdivision (as defined in IC 36-1-2 );
        (2) a regional water, sewage, or solid waste district organized under:
            (A) IC 13-26; or
            (B) IC 13-3-2 (before its repeal July 1, 1996); or
        (3) a local public improvement bond bank organized under IC 5-1.4.
     (b) "Political subdivision", for purposes of IC 13-19-5 , has the meaning set forth in IC 36-1-2-13 and includes a redevelopment district under IC 36-7-14 or IC 36-7-15.1.     SECTION 11. IC 13-11-2-172 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 172. (a) "Program", for purposes of IC 13-18-13 , refers to the wastewater revolving loan program established by IC 13-18-13-1. The term does not include the supplemental program.
     (b) "Program", for purposes of IC 13-19-5 , refers to the environmental remediation revolving loan program established by IC 13-19-5-1.
    (b) (c) "Program", for purposes of IC 13-23, refers to an underground storage tank release:
        (1) detection;
        (2) prevention; and
        (3) correction;
program created in accordance with the requirements of IC 13-23 or IC 13-7-20 (before its repeal).
SOURCE: IC 13-11-2-186; (97)SE0360.1.12. -->     SECTION 12. IC 13-11-2-186 , AS ADDED BY P.L.1-1996, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 186. "Remediation", for purposes of IC 13-19-5 and IC 13-25-5 , means any of the following:
        (1) Actions necessary to:
            (A) prevent;
            (B) minimize; or
            (C) mitigate;
        damages to the public health or welfare or to the environment that may otherwise result from a release or threat of a release.
        (2) Actions consistent with a permanent remedy taken instead of or in addition to removal actions if a release or threatened release of a hazardous substance or petroleum into the environment occurs to eliminate the release of hazardous substances or petroleum so that the hazardous substances or petroleum do not migrate to cause substantial danger to present or future public health or welfare or the environment.
        (3) The cleanup or removal of released hazardous substances or petroleum from the environment.
SOURCE: IC 13-19-5; (97)SE0360.1.13. -->     SECTION 13. IC 13-19-5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]:
     Chapter 5. Environmental Remediation Revolving Loan Program
    Sec. 1. The environmental remediation revolving loan program is established to assist in the remediation of brownfields to encourage the rehabilitation, redevelopment, and reuse of real property by political subdivisions by providing loans or other financial assistance to political subdivisions to conduct any of the following activities:
        (1) Identification and acquisition of brownfields within a political subdivision as suitable candidates for redevelopment following the completion of remediation activities.
        (2) Environmental assessment of identified brownfields and other activities necessary or convenient to complete the environmental assessments.
        (3) Remediation activities conducted on brownfields.
        (4) The clearance of real property under IC 36-7-14-12.2 or IC 36-7-15.1-7 in connection with remediation activities.
        (5) Other activities necessary or convenient to complete remediation activities on brownfields.
    Sec. 2. (a) The environmental remediation revolving loan fund is established for the purpose of providing money for loans and other financial assistance, including grants, to or for the benefit of political subdivisions under this chapter. The fund shall be administered by the authority.
    (b) Expenses of administering the fund shall be paid from money in the fund.
    (c) The fund consists of the following:
        (1) Appropriations made by the general assembly.
        (2) Grants and gifts intended for deposit in the fund.
        (3) Repayments of loans and other financial assistance, including premiums, interest, and penalties.
        (4) Proceeds from the sale of loans and other financial assistance under section 9 of this chapter.
        (5) Interest, premiums, gains, or other earnings on the fund.
        (6) Money transferred from the hazardous substances response trust fund under IC 13-25-4-1 (a)(9).
    (d) The authority shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested. Interest, premiums, gains, or other earnings from these investments shall be credited to the fund.
    (e) As an alternative to subsection (d), the authority may invest or cause to be invested all or a part of the fund in a fiduciary account with a trustee that is a financial institution. Notwithstanding any other law, any investment may be made by the trustee in accordance with at least one (1) trust agreement or indenture. A trust agreement or indenture may allow disbursements by the trustee to:
        (1) the authority;
        (2) the Indiana bond bank; or
        (3) any person to which the authority, the Indiana bond bank, or a political subdivision is obligated, including a trustee that is a financial institution for a grantor trust;
as provided in the trust agreement or indenture. The budget agency and the state board of finance must approve any trust agreement or indenture before its execution.
    Sec. 3. The authority shall do the following under this chapter:
        (1) Be responsible for the management of all aspects of the program.
        (2) Prepare and provide program information.
        (3) Negotiate the negotiable aspects of each financial assistance agreement and submit the agreement to the budget agency for approval.
        (4) Sign each financial assistance agreement.
        (5) Review each proposed project and financial assistance agreement to determine if the project meets the credit, economic, or fiscal criteria established by rule or guidance document.
        (6) Periodically inspect or cause to be inspected projects to determine compliance with this chapter.
        (7) Prepare annual reports concerning the fund and the program and submit the reports to the governor and the general assembly.
        (8) Enter into memoranda of understanding with the department and the budget agency concerning the administration and management of the fund and the program.
    Sec. 4. The budget agency shall do the following under this chapter:
        (1) Conduct or cause to be conducted an evaluation concerning the financial ability of a political subdivision to:
            (A) pay a loan or other financial assistance and other obligations evidencing loans or other financial assistance, if required to be paid; and
            (B) otherwise comply with terms of the financial assistance agreement.
        (2) Review and, if it will not cause long term fiscal detriment to the state, the fund, and the program, approve each financial assistance agreement.
        (3) Enter into memoranda of understanding with the department and the authority concerning the administration and management of the fund and the program.
    Sec. 5. The department shall do the following under this chapter:
        (1) Evaluate the technical aspects of the political subdivision's:
            (A) environmental assessment of potential brownfield properties;
            (B) proposed remediation; and
            (C) remediation activities conducted on brownfield properties.
        (2) Inspect or cause to be inspected remediation activities conducted under this chapter.
        (3) Act as a liaison with the United States Environmental Protection Agency regarding the program.
        (4) Be a point of contact for political subdivisions concerning technical questions about the environmental aspects of the program.
        (5) Enter into memoranda of understanding with the budget agency and the authority concerning the administration and management of the fund and the program.
    Sec. 6. The authority may do the following:
        (1) Employ:
            (A) fiscal consultants;
            (B) engineers;
            (C) bond counsel;
            (D) other special counsel;
            (E) accountants; and
            (F) any other consultants, employees, and agents;
        that the authority considers necessary to carry out the purposes of this chapter.
        (2) Fix and pay the compensation of persons employed under subdivision (1) from money available in the fund or otherwise made available for the program.
    Sec. 7. The authority may provide services to a political subdivision in connection with a loan or other financial assistance, including advisory and other services.
    Sec. 8. The authority shall develop a priority ranking system for making loans and providing other financial assistance under this chapter based on the following:
        (1) Socioeconomic distress in an area, as determined by the poverty level and unemployment rate in the area.
        (2) The technical evaluation by the department under section 5(1)(A) and section 5(1)(B).
        (3) Other factors determined by the authority, including the following:
            (A) The number and quality of jobs that would be generated by a project.
            (B) Housing, recreational, and educational needs of communities.
            (C) Any other factors the authority determines will assist in the implementation of this chapter.
    Sec. 9. (a) Based on the priority ranking system established under section 8 of this chapter, the authority may make loans or provide other financial assistance from the fund to or for the benefit of a political subdivision under this section.
    (b) A loan or other financial assistance must be used for at least one (1) of the purposes under section 1 of this chapter and may be used for any of the following purposes:
        (1) To establish reserves or sinking funds or provide interest subsidies.
        (2) To pay financing charges, including interest on the loan or other financial assistance during remediation and for a reasonable period after the completion of remediation.
        (3) To pay consultant, advisory, and legal fees, and any other costs or expenses resulting from:
            (A) the assessment, planning, or remediation of a brownfield; or
            (B) the loan or other financial assistance.
    (c) Upon the recommendation of the authority and the approval of the budget agency, the interest rate or parameters for establishing the interest rate on each loan, including parameters for establishing the amount of interest subsidies, shall be established by the state board of finance.
    (d) Not more than ten percent (10%) of the money available in the fund during a year may be loaned or otherwise provided to any one (1) political subdivision.     (e) Before a political subdivision may receive a loan or other financial assistance, including grants, from the fund, a political subdivision must submit the following:
        (1) Documentation of community and neighborhood comment concerning the use of a brownfield on which remediation activities will be undertaken after remediation activities are completed.
        (2) A plan for repayment of the loan or other financial assistance, if applicable.
        (3) An approving opinion of a nationally recognized bond counsel.
        (4) A summary of the environmental objectives of the proposed project.
    (f) A political subdivision that receives a loan or other financial assistance from the fund shall enter into a financial assistance agreement. A financial assistance agreement is a valid, binding, and enforceable agreement of the political subdivision.
    (g) With the approval of the budget agency, the authority may sell or assign:
        (1) loans or evidence of other financial assistance; and
        (2) other obligations of political subdivisions evidencing the loans or other financial assistance from the fund;
at any price and on terms acceptable to the authority. Proceeds of sales or assignments under this subsection shall be deposited in the fund. A sale or an assignment under this subsection does not create a liability or an indebtedness of the state or the authority except, in the case of the authority, strictly in accordance with the sale or assignment terms.
    (h) The authority may pledge loans or evidences of other financial assistance and other obligations of political subdivisions evidencing the loans or other financial assistance from the fund to secure other loans or financial assistance from the fund to or for the benefit of political subdivisions. The terms of a pledge under this subsection must be approved by the budget agency. Notwithstanding any other law, a pledge of property made by the authority and approved by the budget agency under this subsection is binding from the time the pledge is made. Revenues, other money, or other property pledged and then received are immediately subject to the lien of the pledge without any further act. The lien of a pledge is binding against all parties having claims of any kind in tort, contract, or otherwise against the authority, the department, the budget agency, a trustee, or the fund, regardless of whether the parties have notice of a lien. A resolution, an indenture, or other instrument by which a pledge is created is not required to be filed or recorded, except in the records of the authority or the budget agency. An action taken to enforce a pledge under this subsection and to realize the benefits of the pledge is limited to the property pledged. A pledge under this subsection does not create a liability or an indebtedness of the state or the authority except, in the case of the authority, strictly in accordance with the pledge terms.
    Sec. 10. Notwithstanding any other law and if provided in a financial assistance agreement, any state department or state agency, including the treasurer of state, that is the custodian of money payable to a political subdivision, other than money in payment for goods or services provided by the political subdivision, after written notice from the budget director that the political subdivision is in default on the payment of principal or interest on a loan or evidence of other financial assistance, may:
        (1) withhold payment of money from that political subdivision; and
        (2) pay over the money to the authority, a trustee that is a financial institution for a grantor trust, or the Indiana bond bank, as directed by the budget director, for the purpose of curing the default.
However, the withholding of payment from the political subdivision and payment to the authority, a trustee, or the Indiana bond bank may not adversely affect the validity of the defaulted loan or other financial assistance.
    Sec. 11. The authority may adopt guidelines or guidance documents without complying with IC 4-22-2 to implement this chapter.
    Sec. 12. (a) Notwithstanding any other law, a political subdivision may borrow money from the authority by negotiating a loan or other financial assistance directly and without complying with requirements for the competitive sale of bonds, notes, or other obligations or evidences of indebtedness. A political subdivision must observe any existing contractual commitments to bondholders or other persons when entering into a financial assistance agreement.
    (b) Notwithstanding any other law, a political subdivision may issue and sell its notes, the principal and accrued interest on which shall be paid with proceeds from the issuance of its bonds or other available money at the time the notes are due. The:         (1) notes must be issued in accordance with a resolution or an ordinance; and
        (2) proceeds must be used to carry out this chapter.
    (c) A political subdivision that issues notes under subsection (b) may renew or extend the notes on terms agreed to with the authority. The authority may purchase and see the renewed or extended notes. Accrued interest on the date of renewal or extension may be paid or added to the principal amount of the note being renewed or extended.
    (d) The notes issued by a political subdivision under subsection (b), including renewals or extensions, mature in the amounts and at the times, not exceeding four (4) years from the date of original issuance, agreed to by the political subdivision and the authority.
    (e) Compliance with subsection (b) constitutes full authority for a political subdivision to issue notes and sell the notes to the authority. The political subdivision is not required to comply with any other law applicable to the authorization, approval, issuance, and sale of its notes. The notes are valid and binding obligations of the political subdivision and are enforceable in accordance with the terms of the notes and payable solely from the sources specified in the resolution or ordinance authorizing the issuance of the notes. However, if the political subdivision issues bonds, all or part of the proceeds of which will be used to pay the notes issued under subsection (b), neither this section nor the actual issuance by a political subdivision of its notes under subsection (b) relieves the political subdivision of its obligation to comply with the statutory requirements for the issuance of its bonds.
    Sec. 13. (a) As an alternative to making loans or providing other financial assistance to political subdivisions, the authority, after obtaining the approval of the budget agency, may use the money in the fund or provide a leveraged loan program and other financial assistance programs to or for the benefit of political subdivisions, including using money in the fund to enhance a political subdivision's obligations under this chapter by:
        (1) granting money to:
            (A) be deposited in:
                (i) a capital or reserve fund established under IC 5-1.5 or another law, including this chapter; or
                (ii) any account established within the fund; or             (B) provide interest subsidies;
        (2) paying bond insurance premiums, reserve insurance premiums, or credit enhancement, liquidity support, remarketing, or conversion fees, or other similar fees or costs for obligations of a political subdivision or for bonds or other obligations issued by a trustee that is a financial institution for a grantor trust or by the Indiana bond bank if credit market access is improved or interest rates are reduced; or
        (3) guaranteeing all or a part of obligations issued by political subdivisions or of bonds or other obligations issued by a trustee that is a financial institution for a grantor trust or by the Indiana bond bank.
    (b) The authority and the budget agency may enter into any agreements with:
        (1) a trustee that is a financial institution for a grantor trust;
        (2) the Indiana bond bank; or
        (3) political subdivisions;
to carry out this chapter.
    (c) A guarantee of obligations or bonds under subsection (a)(3) must be limited to money in the fund. A guarantee under subsection (a)(3) does not create a liability or an indebtedness of the state or of the authority except, in the case of the authority, strictly in accordance with the guarantee terms.
    (d) Notwithstanding any other law, the authority is considered a qualified entity for purposes of IC 5-1.5.
    Sec. 14. (a) Notwithstanding any other law and in addition to any other law, including IC 4-4, the authority may issue, guarantee, and sell its revenue bonds, notes, and other obligations and guarantee loans and other financial assistance in connection with the program and the fund. The revenue bonds, notes, and other obligations must be issued in accordance with a resolution of the authority on terms or within parameters established by the authority, and proceeds must be used to carry out one (1) or more of the purposes of this chapter.
    (b) Compliance with this section constitutes full authority for the authority to issue and guarantee its revenue bonds, notes, and other obligations, to guarantee loans and other financial assistance, and to sell the revenue bonds, notes, and other obligations at public or private negotiated sale on terms or within parameters established by the authority. The authority is not required to comply with any other law applicable to the authorization, approval, issuance, guarantee, and sale of its revenue bonds, notes, and other obligations and guarantee loans and other financial assistance. The revenue bonds, notes, and other obligations, including guarantees, issued by the authority in connection with the program and the fund are valid and binding obligations of the authority and are enforceable in accordance with their terms and payable solely from the sources specified in the resolution authorizing their issuance, guarantee, and sale. The authority's revenue bonds, notes, and other obligations, including guarantees, do not create a liability or debt of the state.

SOURCE: IC 13-25-4-1; (97)SE0360.1.14. -->     SECTION 14. IC 13-25-4-1 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 1. (a) The hazardous substances response trust fund is established. The purpose of the fund is to accumulate and maintain a source of money for the following purposes:
        (1) Financing contracts or cooperative agreements between the state and the President of the United States under Section 104 of CERCLA (42 U.S.C. 9604).
        (2) Providing state assistance in the form of supplies, materials, services, and equipment to:
            (A) prevent the release of a hazardous substance or contaminant; or
            (B) control, contain, isolate, neutralize, remove, store, or dispose of any hazardous substance or contaminant already released into or on the air, land, or waters of Indiana.
        (3) Financing response actions that are:
            (A) undertaken or authorized by the commissioner with respect to sites in Indiana; and
            (B) considered by the commissioner to be necessary to protect the public health or welfare or the environment from the release or threatened release of a hazardous substance or contaminant.
        (4) Paying expenses related to releases of regulated substances other than petroleum from underground storage tanks under IC 13-23-13-7.
        (5) Paying administrative and personnel expenses incurred by the state in responding to releases or threats of releases of hazardous substances or contaminants.         (6) Paying claims for the reimbursement of necessary response costs incurred by persons that have received preauthorization from the commissioner for reimbursement.
        (7) Providing grants for household hazardous waste collection and disposal projects under IC 13-20-20.
        (8) Paying administrative and personnel expenses incurred by the department in implementing and administering household hazardous waste collection and disposal projects under IC 13-20-20.
         (9) Transferring funds to the environmental remediation revolving loan fund established by IC 13-19-5-2.
    (b) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
SOURCE: IC 13-25-4-8; (97)SE0360.1.15. -->     SECTION 15. IC 13-25-4-8 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 8. (a) Except as provided in subsection (b), (c), or (d), a person that is liable under Section 107(a) of CERCLA (42 U.S.C. 9607(a)) for:
        (1) the costs of removal or remedial action incurred by the commissioner consistent with the national contingency plan;
        (2) the costs of any health assessment or health effects study carried out by or on behalf of the commissioner under Section 104(i) of CERCLA (42 U.S.C. 9604(i)); or
        (3) damages for:
            (A) injury to;
            (B) destruction of; or
            (C) loss of;
        natural resources of Indiana;
is liable, in the same manner and to the same extent, to the state under this section.
    (b) The exceptions provided by Section 107(b) of CERCLA (42 U.S.C. 9607(b)) to liability otherwise imposed by Section 107(a) of CERCLA (42 U.S.C. 9607(a)) are equally applicable to any liability otherwise imposed under subsection (a).
    (c) Notwithstanding any liability imposed by the environmental management laws, a secured or unsecured creditor or a fiduciary is not liable under the environmental management laws, in connection with the release or threatened release of a hazardous substance from a facility unless the fiduciary or creditor exercised actual and direct managerial control over the:
        (1) use;
        (2) generation;         (3) treatment;
        (4) storage; or
        (5) disposal;
of the hazardous substance at the facility.
    (d) Notwithstanding any liability imposed by the environmental management laws, the liability of a fiduciary for a release or threatened release of a hazardous substance from a facility that is held by the fiduciary in its fiduciary capacity may be satisfied only from the assets held by the fiduciary in the same estate or trust as the facility that gives rise to the liability.
    (e) A county political subdivision (as defined in IC 36-1-2-13 ) is not liable to the state under this section for costs or damages associated with the presence of a hazardous substance on, in, or at a property if in which the county political subdivision acquired an interest in the property:
         (1) under IC 6-1.1-24 or IC 6-1.1-25 , bankruptcy, abandonment, or other circumstances in which the county political subdivision involuntarily acquired an interest in the property; or
        (2) to conduct remedial actions on a brownfield;

after the hazardous substance was (1) disposed of or (2) placed on, in, or at the property.
SOURCE: IC 13-25-5-1; (97)SE0360.1.16. -->     SECTION 16. IC 13-25-5-1 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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. A person who performs an action under an approved remediation work plan is performing the action to comply with existing legal obligations to protect human health and the environment.
    (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.
SOURCE: IC 13-25-5-2; (97)SE0360.1.17. -->     SECTION 17. IC 13-25-5-2 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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.
SOURCE: IC 13-25-5-7; (97)SE0360.1.18. -->     SECTION 18. IC 13-25-5-7 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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.

SOURCE: IC 13-25-5-8; (97)SE0360.1.19. -->     SECTION 19. IC 13-25-5-8 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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.

        (7) (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.
SOURCE: IC 13-25-5-8.5; (97)SE0360.1.20. -->     SECTION 20. IC 13-25-5-8.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: Sec. 8.5. (a) A voluntary remediation work plan must specify the remediation objectives for the site.
    (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; 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.

SOURCE: IC 13-25-5-18; (97)SE0360.1.21. -->     SECTION 21. IC 13-25-5-18 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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 (1) any liability, including future liability, or (2) a claim resulting from or based upon the release or threatened release of a hazardous substance or petroleum that is the subject of the addressed by an approved voluntary remediation work plan successfully conducted 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 on property that was involved in an approved and completed voluntary remediation work plan; 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) 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.
    (e) During the implementation of an approved voluntary remediation work plan, After an applicant and the department have signed a voluntary remediation agreement, a person may not bring an action, including an administrative action, against a the applicant or any other person implementing the voluntary work plan proceeding under this chapter on behalf of the applicant for any cause of action
        (1) arising under this title or rules adopted under this title and
        (2) relating to the release or threatened release of a hazardous substance or petroleum that is the subject of the voluntary remediation work plan. 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.

     (f) 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 (e).
SOURCE: IC 13-25-5-19; (97)SE0360.1.22. -->     SECTION 22. IC 13-25-5-19 , AS ADDED BY P.L.1-1996, SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1997]: 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.
SOURCE: IC 13-30-9; (97)SE0360.1.23. -->     SECTION 23. IC 13-30-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE FEBRUARY 28, 1998]:
     Chapter 9. Environmental Legal Actions
    Sec. 1. This chapter applies to actions brought by the state or a private person. However, this chapter does not apply to an action brought by the state if the action arises from a site that:
        (1) is listed on the National Priorities List for hazardous substance response sites (40 CFR 300 et seq.);
        (2) scores at least twenty-five (25) under the Indiana scoring model under 329 IAC 7; or
        (3) is deemed by the commissioner to pose an imminent threat to human health or the environment.
    Sec. 2. A person may bring an environmental legal action against a person who caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.
    Sec. 3. (a) In resolving an environmental legal action, a court shall allocate the costs of the removal or remedial action in proportion to the acts or omissions of each party, without regard to any theory of joint and several liability, using legal and equitable factors that the court determines are appropriate, including the following:
        (1) The degree of care exercised by each party with respect to the release of the hazardous substance or petroleum caused or contributed to by each party.
        (2) The amount and characteristics of the hazardous substance or petroleum that was released.         (3) The risks posed by the hazardous substance or petroleum based on the use of the site at the time the hazardous substance or petroleum was released into the environment and the cost effectiveness of the removal or remedial action to address the risks.
        (4) Whether a party's acts or omissions violated a federal, state, or local statute, rule, regulation, or ordinance.
        (5) The extent to which each party exercised actual and direct managerial control over the site where the hazardous substance or petroleum was released at the time of the release.
        (6) Whether an award of reasonable costs, including attorney's fees, to a party involved in the environmental legal action is appropriate.
        (7) Other equitable factors, including unjust enrichment, that the court determines are appropriate.
    (b) Notwithstanding subsection (a), if parties have entered into a contract that allocates the costs or responsibility for the removal or remedial action, the terms of the contract control the allocation of costs between the parties to the contract. However, the terms of a contract may not affect the recovery of costs by the state unless the state is a signatory to the contract.
    Sec. 4. If the commissioner is not able to recover the total costs of a removal or remedial action from the responsible parties under this chapter, the unrecovered costs may be paid from the hazardous substances response trust fund established under IC 13-25-4-1.
    Sec. 5. A defendant in an environmental legal action may assert defenses provided by law or equity, including a defense that damages suffered by the person who brought the environmental legal action were caused in whole or in part by a nonparty.

     Sec. 6. In an action to recover costs associated with a release from an underground storage tank, a person may bring the action under:
        (1) this chapter; or
        (2) IC 13-23-13-8.
A person may not bring the action under both this chapter and IC 13-23-13-8.
    Sec. 7. Notwithstanding any provision of this chapter, a person that receives a covenant not sue under IC 13-25-5-18 is exempt from suit as provided in IC 13-25-5-18.
     Sec. 8. This chapter may not be construed to affect any litigation filed before February 28, 1998, under IC 13-23-13.
SOURCE: ; (97)SE0360.1.24. -->     SECTION 24. [EFFECTIVE JULY 1, 1997] (a) The environmental quality service council shall oversee the implementation of this act and make recommendations concerning the act to the following:
        (1) The general assembly.
        (2) The department of environmental management.
        (3) The department of commerce.
    (b) This SECTION expires July 1, 2000.

SOURCE: ; (97)SE0360.1.25. -->     SECTION 25. [EFFECTIVE JULY 1, 1997] (a) The solid waste management board shall adopt rules before July 1, 1998, to amend 329 IAC 7 concerning the Indiana Scoring Model and the assessment of hazardous substance response sites and determine a minimum score to allow sites that:
        (1) have been the subject of successful remediation, including voluntary remediations, of hazardous substances under IC 13-7-8.9 (before its repeal) or IC 13-25-5 ; or
        (2) score below the minimum score;
to be removed from the priority ranking if appropriate.
    (b) This SECTION expires July 1, 1998.

SOURCE: ; (97)SE0360.1.26. -->     SECTION 26. [EFFECTIVE UPON PASSAGE] (a) The department of environmental management, the Indiana development finance authority, and the budget agency shall adopt rules before July 1, 1998, to implement IC 13-19-5 , as added by this act.
    (b) This SECTION expires July 1, 1998.

SOURCE: ; (97)SE0360.1.27. -->     SECTION 27. [EFFECTIVE JULY 1, 1997] (a) Before July 1, 1998, the department of environmental management shall establish a procedure for ensuring that remediation and closure goals, objectives, or standards for activities performed under IC 13-22 and IC 13-23 are not inconsistent with IC 13-25-5.
    (b) This SECTION expires July 2, 1998.

SOURCE: ; (97)SE0360.1.28. -->     SECTION 28. [EFFECTIVE UPON PASSAGE] (a) The department of environmental management may establish a brownfield redevelopment work group.
    (b) A work group established under subsection (a) shall:
        (1) advise the environmental quality service council concerning the cleanup and development of brownfields in Indiana; and
        (2) assist the environmental quality service council in the collection of data concerning the:             (A) number of brownfield properties in Indiana;
            (B) number and level of brownfield cleanups conducted, including those cleanups that are not completed; and
            (C) number and type of brownfield revitalization zone tax abatements approved under IC 6-1.1-42.
    (c) This SECTION expires July 1, 1999.

SOURCE: ; (97)SE0360.1.29. -->     SECTION 29. [EFFECTIVE JULY 1, 1997] (a) On July 1, 1997, the auditor of state shall transfer five million dollars ($5,000,000) from the hazardous substances response trust fund established by IC 13-25-4-1 to the environmental remediation revolving loan fund established by IC 13-19-5-2 , as added by this act.
    (b) On July 1, 1998, the auditor of state shall transfer two million five hundred thousand dollars ($2,500,000) from the hazardous substances response trust fund established by IC 13-25-4-1 to the environmental remediation revolving loan fund established by IC 13-19-5-2 , as added by this act.
    (c) On July 1, 1999, the auditor of state shall transfer two million five hundred thousand dollars ($2,500,000) from the hazardous substances response trust fund established by IC 13-25-4-1 to the environmental remediation revolving loan fund established by IC 13-19-5-2 , as added by this act.
    (d) This SECTION expires July 2, 1999.

SOURCE: ; (97)SE0360.1.30. -->     SECTION 30. An emergency is declared for this act.


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