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Indiana Finance Authority

IFA > Indiana Brownfields > Legal Assistance Liability Issues and Legal Assistance

Indiana Brownfields ProgramLiability 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. 

  • Strict liability: owners or operators can be held liable for contamination even if they did not cause or contribute to it, or did not know about it at the time of purchase
  • Joint and several liability: one responsible party, including an owner who never used hazardous substances at the site, could be held liable for the entirety of the cleanup, notwithstanding the existence of other responsible parties

Concerns about liability issues for lenders and prospective purchasers are among the main potential obstacles to brownfields redevelopment.

State Mechanisms for Minimizing and Managing Liability

  • Statutory liability exemptions for political subdivisions, lenders, trustees, fiduciaries, innocent landowners, prospective purchasers and contiguous property owners
  • Risk-Based Cleanup Standards
  • Enforcement discretion policies

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 mgramels@ifa.in.gov.

Liability Clarification Letters (Comfort and Site Status Letters)

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.

All Appropriate Inquiries (AAI)

"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:

    1. Interviews with past and present owners, operators and occupants (40 CFR 312.23)
    2. Searches for recorded environmental cleanup liens (40 CFR 312.25)
    3. Reviews of federal, tribal, state and local government records (40 CFR 312.26)
    4. Visual inspections of the facility and adjoining properties (40 CFR 12.27)
    5. The declaration by the EP (40 CFR 312.21)

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  as

 

 

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.

Project Highlights

A former Studebaker facility has been redeveloped into a new transfer/recycling station in South Bend, referred to as Green Tech Recycling (Green Tech). This is a great example of how thinking green for the environment can bring cost savings, new jobs, and community enrichment.

After a long industrial past, the former Studebaker Plant 8 facility sat vacant for 12 years. Mother Earth LLC (Mother Earth) then acquired the property in 2005 and invested $4 million for its demolition, remediation, and redevelopment. The Indiana Brownfields Program provided $45,123 in assessment and remediation grants to Saint Joseph County for the project, and the City of South Bend provided $67,000 in funding from a brownfield assessment grant that it received from the U.S. EPA.