FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

PETER M. RACHER     JEFFREY B. KATZ
JAMES A. JOVEN    Michigan City, Indiana
Plews Shadley Racher & Braun
Indianapolis, Indiana

WESTERN OHIO PIZZA, INC., MAS REALTY,    )
and D.D., INC.,                           )
                                          )
    Appellant-Plaintiffs,                 )
                                          )
        vs.                               )    No. 49A05-9802-CV-87
                                          )
CLARK OIL & REFINING CORPORATION,     )
                                          )
    Appellee-Defendant.                   )

                                      

ROBB, Judge

R. 496. On the same day, Western executed an Offer to Purchase prepared by Clark which provided, in part:
    2) . . .
    SELLER DOES NOT WARRANT, EITHER EXPRESSLY OR IMPLIEDLY, THE CONDITION OR FITNESS OF THE PROPERTY CONVEYED HEREUNDER, ANY SUCH WARRANTY BEING HEREBY EXPRESSLY NEGATED. Buyer, by acceptance hereof, acknowledges that he has made a complete inspection of the above described property, and any improvements and/or equipment located thereon and is in all respects satisfied and accepts said property "AS IS."
    . . . .
    6) Such improvements as may be located on the property, including . . . underground storage tanks and lines . . . are to be considered a part of the purchase price . . . .
    . . . .
    12) . . . This agreement is to be merged with the Purchase Agreement . . . .

R. 498. On August 4, 1988, by corporate warranty deed, Clark conveyed the parcel to Western Ohio.
    Western's contractor began work on the new store in May or June of 1989 and discovered contaminated soil during excavation work. The soil was tested and reported to IDEM. An IDEM inspector orally ordered Western to remediate the soil. The contaminated soil was removed by an environmental engineering firm. The new facility was completed no later than December 1990.

shifted responsibility for the underground storage tanks from [Clark] to [Western].
    5.    Were [Clark] not able to contract away Tank Act liability, [Western] would still be precluded from seeking reimbursement from [Clark] for clean up costs and attorneys fees. The Tank Act in effect at the time of the sale of the property . . . provided that if the current owner of an underground storage tank could prove that a release from the tank was caused solely by an act or omission of a third party, the current owner was entitled to recover from the third party its costs incurred in complying with a corrective action order issued by IDEM. The issuance of an order by IDEM is an essential element to recovery of remediation costs from a responsible third party. Because IDEM did not issue an order requiring clean up, [Western is] precluded from seeking reimbursement from Clark for clean up costs under the Pre-1991 Tank Act. The pre-1991 Tank Act did not provide for recovery of attorney's fees.
    6.    [Western is] also precluded from seeking reimbursement and/or damages from Clark under the amended Tank Act, effective July 1, 1991. The amended Tank Act permits the current tank owner to recover remediation costs and attorneys fees from a responsible third party whether or not IDEM issued an order requiring the current tank owner to take corrective action. All costs of remediating the property were incurred by [Western] prior to July 1, 1991. The 1991 amendment to the Tank Act (permitting recovery from a third party even if clean up is undertaken voluntarily) does not apply to clean up costs incurred Prior to July 1, 1991.
    7.    [Western is] not entitled to recover their remediation costs and attorney's fees from [Clark] pursuant to Indiana Code § 13-7-11-6 . . . . The Illegal Dumping Statute requires proof that a party illegally dumped garbage or other solid waste on the landowner's property without the landowner's consent. This proof necessarily requires that the complaining party actually own the land at the time of the alleged dumping. [Western has] failed to prove that [Clark] dumped any material on the property during the time [Western] owned the property.

R. 448-50 (citations omitted). Western appeals from the trial court's judgment.

the findings, and whether the findings support the judgment. Kettery v. Heck, 587 N.E.2d 1365, 1367 (Ind. Ct. App. 1992), trans. denied. The court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that the record contains no facts or inferences supporting them. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. Sua sponte findings control only as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.

insure; 2) hold harmless; or 3) indemnify; a party to an agreement for any liability under this article." Ind. Code § 13-23-13-10.
    Indiana's underground storage tank laws were "drafted in the same language and spirit" as the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. The Pantry, Inc. v. Stop-N-Go Foods, Inc., 777 F.Supp. 713, 721 (S.D. Ind. 1991), modified on denial of reconsideration, 796 F.Supp. 1164 (S.D. Ind. 1992). "Indiana's UST statutes follow the same remedial principles established by CERCLA." Id. at 720. " Liability under CERCLA is strict - no showing of negligence is required." Rodenbeck v. Marathon Petroleum Co., 742 F.Supp. 1448, 1456 (N.D. Ind. 1990). CERCLA expressly preserves the right of private parties to contractually transfer to or release another from the financial responsibility arising out of CERCLA liability. Id. Under 42 U.S.C. § 9607(e)(1), "parties remain liable for response costs in a government-initiated cleanup," but "private parties may contractually transfer to or release another from CERCLA financial responsibilities."See footnote 2 Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 355 (D.N.J. 1991). CERCLA, therefore, does not abrogate the parties' contractual rights. Rodenbeck, 742 F.Supp. at 1456.
    Western cites several cases, both from federal courts and courts of other states, which hold that "[w]hile a contract can, under appropriate circumstances, act to preclude recovery of response costs, there must be an express provision which allocates these risks to one of the parties." Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994, 1002 (D.N.J. 1988).

The Southland court held that "an 'as is' provision is merely a warranty disclaimer and as such precludes only claims based on breach of warranty." Id. at 1001. Such a provision "does not act to shift liability from one party to an agreement to another . . . ." Id. Two years after Southland, another case from the same court arrived at a similar result regarding a contract which provided: "Premises are sold 'as is.'" Allied Corp. v. Frola, 730 F.Supp. 626, 630 (D.N.J. 1990). The Allied court agreed that an "'as is' clause preclude[d] any cause of action in contract," but did not extinguish all tort theories of liability. Id. The court held that "strict liability may be avoided only by a knowing agreement to accept the risk of an abnormally hazardous activity."See footnote 3 Id.
    The majority of the cases cited above deal primarily with liability under CERCLA. However, "the allocation of CERCLA liability is governed by state contract law." M & M Realty, 977 F.Supp. at 687. To the extent an analogy with CERCLA is helpful, we must look to Indiana law regarding release or transfer of liability.See footnote 4
    Whether a contract is ambiguous is a question of law for the court. Indiana Erectors, Inc. v. Trustees of Indiana University, 686 N.E.2d 878 (Ind. Ct. App. 1997).

that the contract state that the buyer is accepting responsibility for clean-up costs, we do think it clear that when Western accepted responsibility for the tanks and lines, it necessarily accepted responsibility for whatever those tanks and lines contained or had contained.
    The trial court did not err, as a matter of law, in finding that the contract for sale of the property was clear and unambiguous and that the parties' contract transferred responsibility for the costs of remediation to Western.

recovery of response costs or attorneys' fees incurred prior to the effective date of the amendment." Id. at 720 (emphasis added).
    An attorney for IDEM testified that: "If the Commissioner of IDEM or any other authorized representative of IDEM had issued an Order requiring or compelling . . . [Western] to clean up or remediate the property, the Order would have been in written form . . . . The file maintained by IDEM regarding the Property contains no written Order . . . ." R. 770. The IDEM representative overseeing the clean-up of Western's property testified that "there was an informal order from me verbally that there is going to be corrective action taken on this site." R. 781. Yet, when questioned by counsel for Clark, the representative agreed that he did not have "the authority to issue any formal, written order requiring corrective action on behalf of IDEM." R. 797. The IDEM representative explained that "[i]f we did not get cooperation to do the clean-up . . . the first thing would probably be a letter requesting that they do it from the Office of Legal Counsel. If that did not bring action then it would escalate into a Notice of Violation to do the necessary clean-up." R. 779. We conclude that the evidence supports the findings and conclusions of the trial court that IDEM had issued no corrective action order and Western's remediation of the property was undertaken voluntarily.See footnote 5

of remediation to Western under the Indiana Underground Storage Tank Act, we conclude that it is likewise sufficient to transfer responsibility under the Indiana Illegal Dumping Statute. Indiana Code Section 13-30-3-13 imposes no additional liability over and above that dictated by Ind. Code § 13-23-3-13.See footnote 7 The contract for sale of the property explicitly transferred all responsibility for the underground tanks and lines to Western. Having held that this encompassed responsibility for leaks from the tanks, the transfer of responsibility is no less applicable to the Illegal Dumping Statute.
    We hold that the parties' contract for sale of the property prohibits Western from recovering from Clark under Ind. Code § 13-30-3-13.
    Affirmed.
STATON, J., and KIRSCH, J., concur.

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