Additional Information Regarding Upcoming CLE Topic on ELA's and POSI

There are two non-insurance-related methods used to fund environmental cleanups and the requirements for each. 

(1) Indiana’s Environmental Legal Action Statute (Ind. Code 13-30-9).

The meaning of the ELA’s “cause or contributed” requirement. The ELA does not require proof of specific contaminating incidents. However, the ELA requires direct or circumstantial evidence that the defendant had some involvement with the contaminants or took an affirmative act that caused or contributed to the contamination.  Reed v. Reid, 980 N.E.2d 277, 289 (Ind. 2012); 5200 Keystone v. Filmcraft, 30 N.E.3d 5 *13 (Ind. Ct. App. 2015), Williams v. BorgWarner, 110 N.E.2d  1148, 1151 (Ind. Ct. App. 2018).

(2) Indiana’s Petroleum Orphan Tank Sites Initiative (POSI).

The POSI program established by Indiana’s Brownfields Program is available to private property owners. The POSI will pay for the UST removal, site characterization, and remediation to No Further Action status.

What are the requirements for POSI funding?

(a) Sites are identified by IDEM’s Office of Enforcement or the Leaking UST Program.

(b) Sites have no viable responsible party due to dissolution, being defunct or bankrupt, or have demonstrated an inability-to-pay verified by IDEM.

(c) Sites are effectively abandoned,

(d) Sites with a responsible party solely based on current ownership (e.g., inheritance), but the owner did not cause or contribute to the historic contamination.

To learn more about these topics, you can attend our section's upcoming CLE from noon to 1 p.m. on March 25 at IndyBarHQ. Click here to visit the registration page.