1.1. Indiana Code (IC) IC 13-12-3-2, IC 13-22-3, IC 13-22-13, IC 13-23-13, IC 13-24-1, IC 13-25-4, and IC 13-25-5,

1.2. Rules set forth in the Indiana Administrative Code (IAC) at 329 IAC 3.1, 329 IAC 4, 329 IAC 9, and 329 IAC 10,

1.3. IDEM's Compliance and Enforcement Response Policy (MP-005-R1-NPD),

1.4. Remediation Closure Guide (WASTE-0046-R1-NPD), and

1.5. Remediation Program Guide (WASTE-0060-NPD).

i. Interprets, supplements, or implements a statute or rule;

ii. Has not been adopted in compliance with IC 4-22-2;

iii. Is not intended by IDEM to have the effect of law; and

iv. Does not apply solely to the internal IDEM organization.

i. One or more measures taken to reduce risks to human health and/or the environment arising from a contaminant release.

ii. Measures may include contaminant treatment, contaminant removal, institutional controls, or engineering controls, alone or in combination.

i. Public property – Typically, access to public property such as an easement, right-of-way, or roadways is granted by a state, county, or municipal government through the application for and issuance of a permit or some other approval mechanism.

a. The Participant must apply for any required state or local approval(s) in a timely manner consistent with investigation or remediation milestones.

b. If more time is needed to obtain necessary state or local approval(s), the Participant should notify the PM in writing requesting additional time before the due date.

c. Normally, access to public property does not require the use of the same procedures necessary to access private property.

d. The public property entity may require the Participant to be bonded, insured, or both before performing the work.

ii. Private property – An Access Agreement or temporary license is typically needed for investigation or remediation activities such as completing soil borings, installing ground water monitoring wells, collecting samples, excavating soil, and installing remediation systems. The Participant should follow procedures outlined in Section 6.3 when the PM has indicated that investigation or remediation is necessary off-site when attempting to access private property. The Participant should consider preparing a Community Relations Plan (CRP) if access to a number of properties will be necessary because a properly-executed CRP may improve the likelihood that access to private properties will be obtained. In some situations, the Participant may need to communicate with the renter/lessee of the property as part of obtaining access, particularly in residential situations. Also, if English is not the predominant language in the community, the Participant has the responsibility to make reasonable efforts to present the proposed site information and Access Agreements in both English and the appropriate foreign language(s). The Participant may utilize the VRP Community Relations Plan Nonrule Policy Document, WASTE-0049-NPD for guidance in the preparation of a CRP.

i. Information about the extent of planned investigation or remediation activities and time needed to perform the activities;

ii. Assurances that the Owner's property will be restored to its previous condition consistent with completion of the investigation or remediation activities and that the Participant shall use reasonable efforts to minimize disruption to the Owner;

iii. Written commitment that the Participant is responsible for damages arising from the investigation or remediation work including, when appropriate or required, a statement that the Participant and/or its representative has applicable insurance or some other form of financial assurance in the event damage to the property occurs (Written requests for access, which contain overly broad release, indemnification or "hold harmless" language in favor of the Participant are not acceptable);

iv. Assurances that technical data collected during the investigation or remediation on the Owner's property will be provided to the Owner and tenant, if applicable, at no cost to the Owner or tenant upon request;

v. The name, address, telephone number, and e-mail address of the Participant;

vi. Assurances that the Participant will be available to answer questions, provide updates, and assist in coordination and timing of planned activities; and

vii. Additional information such as Fact Sheets and/or Information Sheets provided by the PM.

i. Step 1: Reconnaissance – The Participant in consultation with the PM should identify the properties of interest based on environmental data then proceed to Step 2.

ii. Step 2: Records review – The Participant will perform a records review via the County Recorder's Office and any online property records such as Beacon, Enterprise GIS, Think GIS, or any other online County GIS application, along with an online search for relevant phone numbers to find Owners then proceed to Step 3.

iii. Step 3: In-person Visits

a. If the Owner is not residing in the affected property and is not readily available for direct contact, skip this step and proceed to Step 4.

b. The Participant may choose to make telephone contact first, in order to schedule an in-person visit. The Participant should attempt to make face-to-face contact with each Owner at least twice.

c. The Participant should attempt to make contact when the Owner is most likely to be present. For example, home owners tend to be home in the evening, but business owners may be more likely to be present during the day.

d. The Participant may inquire with neighboring property owners or tenants regarding how and when to contact the property owner.

e. The Participant should provide written information listed in Section 6.2.

f. In-person visits are not expected at those addresses that have "No Trespassing" signs, "Beware of Dog" signs, or any other signs deterring unwanted visitors. Furthermore, any structure that appears vacant, boarded up, dilapidated, falling down, or otherwise unsafe need not be approached due to safety concerns.

g. If the property is owned but rented to a tenant, an Access Agreement should be sought from the Owner, but logistics of the investigation or remediation activities once access is granted should be arranged with the tenant.

h. If contact is not made during the in-person visit, proceed to Step 4.

i. If contact is made during an in-person visit, but an agreement was not reached, proceed to Step 7a.

j. If contact is made and an agreement is reached, proceed to Step 7b.

iv. Step 4: Telephone contact

a. The Participant should call each Owner at least two times. The Participant should leave a voicemail, when available, including the name of the caller, who they represent, reason for the call, and contact information.

b. All phone calls should be made during regular business hours for businesses and once during the day and once during the evening hours for residences.

c. If contact is not made by telephone, proceed to Step 5.

d. If contact is made by telephone, but an agreement was not reached, proceed to Step 7a.

e. If contact is made and an agreement is reached, proceed to Step 7b.

v. Step 5: Door hangings

a. The Participant should deliver material about the purpose and nature of the activities it needs to perform and a copy of the Access Agreement as well as contact information as described in Section 6.2. The information should be hung on the door of each home or business.

b. If no response is received within one week of delivery, proceed to Step 6.

c. If contact was successful, but an agreement was not reached, proceed to Step 7a.

d. If contact is made and an agreement is reached, proceed to Step 7b.

vi. Step 6: Written Letters

a. The Participant should send letters to the Owner(s) where Third Party access is needed via certified mail requesting access. The letters should contain information described in Section 6.2.

b. If the Participant does not receive a reply from the initial certified letter, the same letter should be sent via regular mail two weeks after the first mailing.

c. If the Participant receives no response within two weeks, proceed to Step 7.

d. If contact was successful, but an agreement was not reached, proceed to Step 7a.

e. If contact is made and an agreement is reached, proceed to Step 7b.

vii. Step 7: Follow-up

a. When the Participant is unsuccessful at obtaining property access to perform investigation or remediation, they should submit written documentation of which property(s) could not be accessed that demonstrates that Steps 1 to 6 for each property were taken, and recommendations regarding what next steps that should be taken.

b. When the Participant is successful at obtaining property access to perform investigation or remediation, they should submit the access agreement and any other related documentation to the PM along with a schedule for field activities. The Participant may redact confidential information in the agreement or choose to make a confidentiality claim under 329 IAC 6.1-4-1.

viii. Documentation – The Participant should create a record that documents all attempts to make direct contact with the Owner(s) and tenant, if applicable, including in-person attempts, telephone calls, door hangings, and copies of letters sent. Whether access is obtained or not for a Third Party property for which IDEM has directed the Participant to perform investigation or remediation, the Participant should submit the records to the PM and should explain why an agreement for access was not reached, if the reason is known.

ix. Owners' List – Through the course of investigation or remediation, the Participant should maintain an accurate and up-to-date list of neighboring and potentially affected Owners and tenants, if applicable, even if the Owner(s) does not grant access for investigation or remediation. Such Owners must still be notified of agency actions, such as approval of a corrective action or remedial work plan or determination of closure that may affect their property.

i. If all steps are completed in Section 6.3 and properly documented by the Participant and access to the Third Party property is not obtained, IDEM should assist in facilitating access for the Participant to perform investigation or remediation of the Owner's property(s). The PM should take one or more of the following actions based on consultation with the Participant:

a. Make personal contact by telephone, e-mail, or in person with the Owner and/or their representative.

b. Send a letter to the Owner requesting them to grant access to the Participant.

ii. IDEM does not have the authority to obtain access for the Participant. If the PM fails to make contact or fails to facilitate access with the Third Party for the Participant, IDEM may take one or more of the following actions, depending on site circumstances:

a. Send additional correspondence to the Owner encouraging them to grant access to the Participant;

b. Issue an administrative order to the Owner or seek a judicial warrant to obtain access for investigation or remediation of contaminants with IDEM resources in appropriate circumstances (however, a warrant will rarely, if ever, be requested for residential properties); and/or

c. The PM may work with the Participant to identify alternative locations near the property for investigation or remediation, e.g. a public right-of-way may be an acceptable alternative.

iii. In situations when the PM determines that expedited contact is needed, the PM will attempt to facilitate timely and appropriate access with the Third Party.

i. Followed the provisions in Sections 6.1 through 6.3 of this Policy in a timely manner in an effort to obtain the necessary Third Party access;

ii. Proceeded with the investigation or remediation to the extent reasonably possible in areas where access is available and consistent with any IDEM-approved corrective action or other remedial work plan; and

iii. Explored other reasonable options available to complete investigation or remediation consistent with any IDEM-approved corrective action or other work plan, despite the lack of Third Party access;

i. The investigation and characterization of the nature and extent of the release that was completed, as required by IC 13-12-3-2(a) and IC 13-25-5-8.5(c)(1) as well as Remediation Closure Guide and appropriate section of the Remediation Program Guide, without access being granted, is adequate; and/or

ii. The Participant has demonstrated, as described in IC 13-22-13-2, to the satisfaction of the Commissioner that, despite the best efforts of the Participant, that it is unable to obtain the necessary permission to undertake corrective action; and/or

iii. The Participant may be ready to request closure of the site and/or release under the Remediation Closure Guide and appropriate section of the Remediation Program Guide, without having gained access to the Third Party Property. If Third Party Properties were not able to be investigated or remediated because of the failure to gain access, closure decisions may specifically exclude those Third Party Properties.

7.1. Federal Laws or Rules:

i. CERCLA Code – U.S.C. Title 42, Chapter 103

http://uscode.house.gov/browse.xhtml

ii. CERCLA Rule – 40 CFR Part 300 and 302

http://www.ecfr.gov/cgi-

bin/ECFR?SID=fa12da544a4e420e0706d7caabdd7deb&mc=true&page=browse

iii. RCRA Code – U.S.C. Title 42, Chapter 82, Subchapter III

http://uscode.house.gov/browse.xhtml

iv. RCRA Rule – 40 CFR Parts 239-282

http://www.ecfr.gov/cgi-

bin/ECFR?SID=fa12da544a4e420e0706d7caabdd7deb&mc=true&page=browse

v. UST Code – U.S.C. Title 42, Chapter 82, Subchapter IX

http://uscode.house.gov/browse.xhtml

vi. UST 40 Rule – 40 CFR Part 280 and 302

http://www.ecfr.gov/cgi-

bin/ECFR?SID=fa12da544a4e420e0706d7caabdd7deb&mc=true&page=browse

7.2. Indiana Administrative Code:

i. Hazardous Waste – 329 IAC 3.1

www.in.gov/legislative/iac/

ii. Public Records; Confidential Information; Confidentiality – 329 IAC 6.1

www.in.gov/legislative/iac/

iii. UST – 329 IAC 9

www.in.gov/legislative/iac/

7.3. Indiana Statutes:

i. Environmental Policy – IC 13-12-3

www.in.gov/legislative/ic/code/

ii. Hazardous Waste Permits – IC 13-22-3

www.in.gov/legislative/ic/code/

iii. Hazardous Waste Corrective Action – IC 13-22-13

www.in.gov/legislative/ic/code/

iv. UST Corrective Action – IC 13-23-13

www.in.gov/legislative/ic/code/

v. Petroleum Releases – IC 13-24-1

www.in.gov/legislative/ic/code/

vi. Hazardous Substances – IC 13-25-4

www.in.gov/legislative/ic/code/

vii. Voluntary Remediation – IC 13-25-5

www.in.gov/legislative/ic/code/

7.4. Agency Policies:

i. Compliance and Enforcement Response Policy (MP-005-R1-NPD)

http://www.in.gov/idem/files/MP-005-R1-NPD.pdf

ii. Access to Third Party Property Policy (WASTE-0043-NPD)

www.in.gov/idem/files/nrpd_waste-0043.pdf

iii. Remediation Closure Guide (WASTE-0046-R1-NPD)

www.in.gov/idem/6683.htm

iv. Remediation Program Guide (WASTE-0060-NPD)

www.in.gov/idem/6726.htm

v. Voluntary Remediation Program Community Relations Plan (WASTE-0049-NPD)

www.in.gov/idem/files/nrpd_waste-0049.pdf

1. _____________________________________ is the owner of property ("Owner") located in ____________, __________ County, Indiana, commonly known as [Insert Address] (the "Property").

2. Participant is investigating the need for and taking actions to clean-up contaminated properties or the Participant is cleaning up contaminated properties under state and federal law, including Ind. Code §§ 13-20; Code §§ 13-22-13; 13-23-13; 13-24-1; and/or 13-25, et seq.; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9673; the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992; and the Oil Pollution Act of 1990, 33 U.S.C. §§2701-2762. These cleanup activities, known as response actions, may include investigation, mitigation and/or cleanup of potential contamination by oil, petroleum, hazardous substances, solid wastes or hazardous wastes.

3. Owner agrees to allow Participant and its employees, authorized agents and contractors to enter the Property to conduct the following activities related to investigation of [potential] contamination of the [soil, groundwater, surface water, sediments, soil gas, or indoor air] at the Property [LIST]:

a. [Complete soil boring and collect soil samples at the Property.]

b. [Collect groundwater samples at the Property.]

c. [Collect samples of the indoor or sub-slab air at the Property.]

d. [Install monitoring wells at the Property for continued groundwater sampling.]

e. [Install and maintain treatment wells at the Property.]

f. [Install and maintain vapor mitigation system at the Property.]

g. [Install and maintain water treatment system at the Property.]

h. [Excavate contaminated soil and replace with clean soil.]

4. Participant will notify Owner by telephone at least three (3) business days in advance of the date on which it plans to begin investigation or cleanup activities at the Property. Participant shall be responsible for all costs and expenses associated with the proper disposal of contaminated soil and the disposal or treatment of contaminated groundwater derived from the investigation or cleanup activities.

5. Participant agrees to coordinate its activities with Owner so as to minimize any inconvenience to or interruption of the conduct of any business operations, or the use and enjoyment of the Property.

6. Owner agrees to not tamper with or disturb any equipment that Participant leaves on the Property for the purposes of investigation or cleanup, such as automatic or passive sampling devices, monitoring wells, vapor mitigation systems, etc.

7. Participant agrees to provide Owner with copies of the results of the investigation or cleanup performed pursuant to this Agreement.

8. Participant agrees, upon completion of the [investigation, mitigation, and/or cleanup] conducted on the Property that the Property will be restored to as near the condition that existed before the [investigation and/or cleanup] as is reasonably possible including the following activities [LIST]:

a. [Will properly close the wells.]

b. [Will remove treatment systems.]

c. [Will backfill and compact to grade after excavation.]

d. [Will repair pavement.]

9. Participant and Owner represent and warrant that it is authorized to sign this Agreement and that this Agreement, when signed, shall become a valid and binding obligation, enforceable in accordance with its terms. Owner represents and warrants that it is the owner of the Property or that it has full lawful authority to grant access to the Property for the purposes described herein.

10. In the event Owner's interests in the Property are conveyed, transferred or in any way assigned in whole or in part to any other person or entity, whether by contract, operation of law, or otherwise, Owner shall take all reasonable actions to render any such conveyance, transfer, or assignment subject to the terms of this Agreement. This Agreement may be assigned by Owner without the prior consent of any other party.

11. All work on the Property shall be performed by employees of the Participant or authorized contractors. All such persons performing the work are provided with health insurance and workers' compensation coverage by their respective employers. Participant shall procure and maintain for the duration of this agreement insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by the Participant, his agents, representatives, employees, or subcontractors. Participant or its authorized contractors shall provide evidence of its general liability coverage upon request by Owner.

DIN: 20151125-IR-318150388NRA

Composed: May 05,2024 5:02:42PM EDT

A PDF version of this document.