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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, Assistant 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 attempts to eliminate liability concerns for stakeholders at sites where either an enforcement discretion policy or an exemption from liability based in statute applies.  It also addresses the potential for IDEM to require a cleanup based on comparing site conditions to objective, risk-based standards found in RISC. The Program addresses these issues in either a Comfort or Site Status Letter, which is made available under a nonrule policy document.

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 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.   For brownfields legal liability protections, a new or updated Phase I is required within 6 months prior to a property transaction.

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.