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Liability at a brownfield is typically the legal responsibility for costs of cleaning up property that is contaminated (or thought to be contaminated) by a past owner or operator. Liability is based on the type of contamination found at the site, either hazardous substances or petroleum. Liability can be both strict and joint and several, depending on the applicable law.
Concerns about liability issues for lenders and prospective purchasers are among the main potential obstacles to brownfields redevelopment.
For more information about liability issues and legal assistance, please contact Meredith Gramelspacher, Director of the Indiana Brownfields Program & General Counsel, at (317) 233-1430 or firstname.lastname@example.org.
The Indiana Brownfields Program (Program) attempts to eliminate liability concerns for stakeholders at sites where either an enforcement discretion policy or an exemption from liability based in statute applies. The Program also addresses the potential for the Indiana Department of Environmental Management (IDEM) to require a cleanup based on comparing site conditions to objective, risk-based standards found in the IDEM Remediation Closure Guide Nonrule Policy Document and Remediation Program Guide (RPG). The Program addresses these issues in either a Comfort or Site Status Letter, which is made available under the Brownfields Comfort/Site Status Letter Nonrule Policy Document.
The Program is requesting additional information be submitted with the Brownfields Comfort/Site Status Letter Request Form. Please see Brownfields Comfort/Site Status Letter Supplemental Information Request Form
The length of the time required for the Program to issue a letter varies on the number of other requests already in the queue and the volume of data/reports associated with the site at issue that require review to draft the letter. Stakeholders should plan for a minimum of 120 days from the time the Program receives all pertinent documentation and information to receive the letter requested. Note: because the BFPP exemption was designed to be self-implementing, a stakeholder need not have IDEM’s Comfort Letter in hand at the time of closing to be protected under the law.
Please submit a paper copy and CD of each form/document/report as part of your request. Include with your request all supporting documentation to ensure your request is complete. If your request packet is not complete, it will delay staff review of your request.
"All appropriate inquiries" or AAI is the process of evaluating a property's environmental conditions and assessing potential liability for any contamination. The Indiana Brownfields Program’s advice to all prospective purchasers of potentially or known contaminated property is to conduct an AAI-compliant Phase I Environmental Site Assessment (Phase I) prior to acquisition. Conducting a Phase I for Testing and Materials (ASTM) Practice E-1527-13, Standard Practice for Environmental Site Assessment will ensure that you have the most information about potential or recognized environmental conditions on the property, as well as perhaps ensure your eligibility for an exemption from liability for any contamination on the property. The prospective purchaser must provide answers to the user-specific questions to ensure its satisfaction of the Federal AAI rule.
Phase I reports have two key expiration dates:
In order to be valid for a property transfer, certain components of the Phase I report cannot be older than 180 days. If more than 180 days has lapsed since the initial report information was collected prior to closing (from the earliest date collected/conducted) the following components of the Phase I report must be updated prior to closing:
The shelf life of the Phase I report is one year. If more than one year has lapsed from the date on which the earliest report information was collected prior to closing, an entirely new Phase I report must be obtained to qualify
U.S. EPA’s All Appropriate Inquiries Website
U.S. EPA’s Bona Fide Prospective Purchasers Website
U.S. EPA’s All Appropriate Inquiry Fact Sheet
U.S. EPA’s CERCLA, Brownfields, and Lender Liability Fact Sheet
Laws, Regulations, Policies
Although not a regulatory program, the Indiana Brownfields Program is authorized by statutes that allow for the provision of services and the distribution of financial assistance to communities for assessment and cleanup of brownfield properties. When providing assistance at brownfield sites, the Program must adhere to all existing laws, regulations and policies that relate to protection of human health and the environment and that apply to other IDEM remediation programs.