SB 127-1_ Filed 01/21/2010, 12:26

COMMITTEE REPORT




MADAM PRESIDENT:

    The Senate Committee on Energy and Environmental Affairs, to which was referred Senate Bill No. 127, has had the same under consideration and begs leave to report the same back to the Senate with the recommendation that said bill be AMENDED as follows:

SOURCE: Page 1, line 11; (10)AM012701.1. -->     Page 1, line 11, strike "described in section".
    Page 1, line 12, delete "8(b)".
    Page 1, line 12, strike "or".
    Page 1, line 12, delete "8(c)".
    Page 1, line 12, strike "of this chapter." and insert " who caused the spill or overfill.".
    Page 1, line 15, delete "8(c)" and insert " 8".
    Page 2, line 1, after "mail" insert ", registered mail, United States mail, or personal service".
    Page 2, line 3, after "each" insert " reasonably known".
    Page 2, delete lines 16 through 42, begin a new paragraph and insert:
SOURCE: IC 13-23-13-8; (10)AM012701.2. -->     "SECTION 2. IC 13-23-13-8 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 8. (a) Except where an owner or operator can prove that a release from an underground storage tank was caused solely by:
        (1) an act of God;
        (2) an act of war;
        (3) negligence on the part of the state or the United States government; or
        (4) any combination of the causes set forth in subdivisions (1)

through (3);
the owner or operator of an underground storage tank is liable to the state for the actual reasonable costs of any corrective action taken under section 2 of this chapter or IC 13-7-20-19(b) (before its repeal) involving the underground storage tank and is responsible for undertaking any corrective action, including undertaking an exposure assessment, ordered under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its repeal), or IC 13-7-20-26 (before its repeal), or required by this title or a rule adopted under this title.
    (b) A person who:
        (1) pays to the state the costs described under subsection (a); or
        (2) undertakes corrective action resulting from a release from an underground storage tank, regardless of whether the corrective action is undertaken voluntarily or under an order issued under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its repeal), or IC 13-7-20-26 (before its repeal);
is entitled to receive a contribution from a person who owned or operated the underground storage tank at the time the release occurred. A person who brings a successful action to receive a contribution from an owner or operator is also entitled to receive reasonable attorney's fees and court costs from the owner or operator. An action brought under this subsection may be brought in a circuit or superior court. In resolving a contribution claim, a court may allocate the cost of a corrective action among the parties to the action using equitable factors that the court determines are appropriate.
     (b) A person who pays to the state the reasonable corrective action costs described under subsection (a), regardless of whether the corrective action is undertaken voluntarily or under an order issued under this chapter, may recover those costs from a person who owned or operated the underground storage tank at the time the release occurred.
     (c) Subject to subsections (e) through (h), a person who undertakes corrective action, regardless of whether the corrective action is undertaken voluntarily or under an order issued under this chapter, that results from a release from an underground storage tank and that is:
        (1) to investigate, minimize, contain, eliminate, remediate, mitigate, or clean up a release from an underground storage tank,
including emergency measures taken as part of an initial response to the release; or
        (2)
under an order issued under this chapter, IC 13-23-14-1, IC 13-7-20-19 (before its repeal), or IC 13-7-20-26 (before its

repeal);
may receive a contribution toward those costs from a person who owned or operated the underground storage tank at the time the release occurred.

     (d) An action brought under subsection (b) or (c) may be brought in a circuit or superior court. Nothing in this section requires that the action be limited to claims brought under this article.
     (e) Before a person:
        (1) incurs significant investigative costs, corrective action costs, or attorney's fees; or
        (2) initiates an action under subsection (b) or (c) on or after the effective date of this subsection;
the person must provide written notice by certified mail, registered mail, United States mail, or personal service to each reasonably known person allegedly responsible for the release from the underground storage tank.
    (f) If:
        (1) a person provides notice to a person under subsection (e); and
        (2) the person who receives the notice agrees in writing to remediate the release in accordance with rules and the department's guidelines, including time frames for remediation, that govern releases from underground storage tanks;
the person providing notice may recover under this article only past corrective action costs, court costs, and attorney's fees reasonably incurred before the date of the written agreement under subdivision (2).
    (g) If the person who agrees in writing to remediate the release under subsection (f) does not remediate the release in substantial compliance with rules and the department's guidelines governing releases from underground storage tanks, the person who provided the notice may recover reasonable attorney's fees to enforce the agreement.

     (h) In resolving a claim in an action initiated to recover costs or for contribution under this section, a court may use any legal and equitable factors that the court determines are appropriate in deciding whether to do any of the following:
         (1) Award costs of corrective action reasonably incurred under subsection (b).
         (2) Award past, present, and future costs of undertaking

corrective action reasonably incurred under subsection (c).
         (3) Award attorney's fees and court costs to a person who reasonably incurred those fees and costs in prosecuting a successful action under subsection (b), (c), or (g).
         (4) Allocate any amounts awarded under subdivisions (1) through (3) among the parties to the action.
    (c) (i) Money recovered by the state under this section in connection with any corrective action undertaken with respect to a release of petroleum shall be deposited in the petroleum trust fund.
    (d) (j) Money recovered by the state under this section in connection with any corrective action undertaken with respect to a release of a regulated substance other than petroleum shall be deposited in the hazardous substances response trust fund.
    (e) (k) The state may recover corrective action costs under this section in an action commenced under IC 13-14-2-6, IC 13-14-2-7, IC 13-7-5-7 (before its repeal), or IC 13-7-5-8 (before its repeal). An action to recover corrective action costs under this section may be combined, as appropriate, with an action to enforce an order issued under section 1 of this chapter or IC 13-7-20-19(a) (before its repeal) to require corrective action not already undertaken by the commissioner.".
    Delete pages 3 through 4.

SOURCE: Page 5, line 1; (10)AM012701.5. -->     Page 5, delete lines 1 through 34.
    (Reference is to SB 127 as introduced.)

and when so amended that said bill do pass .

Committee Vote: Yeas 10, Nays 0.

____________________________________

Senator Gard, Chairperson


AM 012701/DI 52    2010