2023 Indiana Code › Title 13. Environment › Article 25. Hazardous Substances › Chapter 5. Voluntary Remediation of Hazardous Substances and Petroleum › 13-25-5-18. Covenant Not to Sue; Conditions in Covenants Not to Sue and Certificates of Completion; Immunity From Actions; Exceptions

Sec. 18. (a) If the commissioner issues a certificate to a person under section 16 of this chapter, the governor shall also provide the person with a covenant not to sue for any liability, including future liability, or a claim resulting from or based upon the release or threatened release of a hazardous substance or petroleum that is addressed by an approved voluntary remediation work plan under this chapter.
(b) A covenant not to sue issued under this section bars suit against:
(1) a person who received the certificate of completion under section 16 of this chapter; or
(2) any other person who receives the certificate of completion:
(A) through a legal transfer of the certificate of completion; or
(B) by acquiring property to which the certificate of completion applies;
from all public or private claims arising under this title or rules adopted under this title in connection with the release or threatened release of a hazardous substance or petroleum that was the subject of the approved voluntary remediation work plan, except as provided in subsection (c).
(c) A covenant not to sue issued under this section may not apply to future liability for a condition or the extent of a condition that:
(1) was present:
(A) on property that was involved in an approved and completed voluntary remediation work plan; and
(B) at the time the commissioner issued the certificate of completion under section 16 of this chapter; and
(2) was not known to the commissioner at the time the commissioner issued the certificate of completion under section 16 of this chapter.
(d) A certificate of completion issued under section 16 of this chapter may include conditions that must be performed or maintained after issuance of the certificate.
(e) A covenant not to sue issued under this section may include conditions that must be performed or maintained after issuance of the covenant.
(f) Except as:
(1) provided under federal law; or
(2) agreed to by a federal governmental entity;
a covenant not to sue issued under this section may not release a person from liability to the federal government for claims based on federal law.
(g) After an applicant and the department have signed a voluntary remediation agreement, a person may not bring an action, including an administrative action, against the applicant or any other person proceeding under this chapter on behalf of the applicant for any cause of action arising under this title or rules adopted under this title and relating to the release or threatened release of a hazardous substance or petroleum that is the subject of the agreement. However, this section does not apply if:
(1) the applicant fails to file a proposed voluntary remediation work plan within the time period established in section 8(a)(8) of this chapter;
(2) the commissioner rejects a proposed voluntary remediation work plan submitted in good faith and the rejection is upheld in any appeal brought under section 12 of this chapter;
(3) the applicant or another person proceeding under this chapter on behalf of the applicant fails to complete a voluntary remediation in accordance with an approved voluntary remediation work plan; or
(4) the commissioner withdraws the commissioner's approval of the voluntary remediation work plan and the withdrawal is upheld in any appeal under section 19 of this chapter.
However, if the commissioner withdraws approval of the plan under section 19(a)(2) of this chapter, the commissioner may bring an action, including an administrative action, against the applicant.
(h) A person who purchases property that is the subject of a voluntary remediation agreement at the time the property is purchased may not be subject to an enforcement action to the same extent as an applicant under subsection (g).
[Pre-1996 Recodification Citation: 13-7-8.9-18.]
As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.21; P.L.78-2009, SEC.19.