§ 13-25-5-18 — Covenant not to sue; conditions in covenants not to sue and certificates of completion; immunity from actions; exceptions

(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.]

Legislative History

As added by P.L.1-1996, SEC.15. Amended by P.L.59-1997, SEC.21; P.L.78-2009, SEC.19.