CHAPTER 8. USE OF MONEY IN EXCESS LIABILITY FUND
IC 13-23-8
Chapter 8. Use of Money in Excess Liability Fund
IC 13-23-8-1
Payment of claims and loan guaranties from fund
Sec. 1. The department, under rules adopted by the undergroundstorage tank financial assurance board under IC 4-22-2, shall usemoney in the excess liability trust fund, to the extent that money isavailable in the excess liability trust fund, to pay claims submitted tothe department for the following:
(1) The payment of the costs allowed under IC 13-23-9-2,excluding:
(A) liabilities to third parties; and
(B) the costs of repairing or replacing an undergroundstorage tank;
arising out of releases of petroleum.
(2) Providing payment of part of the liability of owners andoperators of underground petroleum storage tanks:
(A) to third parties under IC 13-23-9-3; or
(B) for reasonable attorney's fees incurred in defense of athird party liability claim.
As added by P.L.1-1996, SEC.13. Amended by P.L.9-1996, SEC.13;P.L.14-2001, SEC.6.
IC 13-23-8-2
Payment of claims; maximum amount
Sec. 2. Except as provided in section 6 of this chapter, paymentsunder section 1 of this chapter may not exceed two million dollars($2,000,000) per occurrence for which claims are made under thischapter.
As added by P.L.1-1996, SEC.13. Amended by P.L.14-2001, SEC.7.
IC 13-23-8-3
Payment of claims; amounts
Sec. 3. For the purposes of section 2 of this chapter, the followingamounts shall be used:
(1) If the underground petroleum storage tank that is involvedin the occurrence for which claims are made:
(A) is not in compliance with rules adopted by the boardconcerning technical and safety requirements relating to thephysical characteristics of underground petroleum storagetanks before the date the tank is required to be in compliancewith the requirements; and
(B) is in compliance on a date required under therequirements described under section 4 of this chapter at thetime a release was discovered;
the amount is thirty-five thousand dollars ($35,000).
(2) If the underground petroleum storage tank that is involvedin the occurrence for which claims are made:
(A) is in compliance with rules adopted by the board
concerning technical and safety requirements relating to thephysical characteristics of underground petroleum storagetanks before the date the tank is required to be in compliancewith the requirements;
(B) is not a double walled underground petroleum storagetank; and
(C) has piping that does not have secondary containment;
the amount is twenty-five thousand dollars ($25,000).
(3) If the underground petroleum storage tank that is involvedin the occurrence for which claims are made:
(A) is in compliance with rules adopted by the boardconcerning technical and safety requirements relating to thephysical characteristics of underground petroleum storagetanks before the date the tank is required to be in compliancewith the requirements;
(B) is not a double walled underground petroleum storagetank; and
(C) has piping that has secondary containment;
the amount is twenty-five thousand dollars ($25,000).
(4) If the underground petroleum storage tank that is involvedin the occurrence for which claims are made:
(A) is in compliance with rules adopted by the boardconcerning technical and safety requirements relating to thephysical characteristics of underground petroleum storagetanks before the date the tank is required to be in compliancewith the requirements;
(B) is a double walled underground petroleum storage tank;and
(C) has piping that does not have secondary containment;
the amount is twenty-five thousand dollars ($25,000).
(5) If the underground petroleum storage tank that was involvedin the occurrence for which claims are made:
(A) is in compliance with rules adopted by the boardconcerning technical and safety requirements relating to thephysical characteristics of underground petroleum storagetanks before the date the tank is required to be in compliancewith the requirements;
(B) is a double walled underground petroleum storage tank;and
(C) has piping that has secondary containment;
the amount is twenty thousand dollars ($20,000).
As added by P.L.1-1996, SEC.13. Amended by P.L.14-2001, SEC.8;P.L.75-2007, SEC.2; P.L.221-2007, SEC.14.
IC 13-23-8-4
Requirements for owner or operator to receive money from fund
Sec. 4. (a) Except as provided under subsection (b), and subjectto section 4.5 of this chapter, an owner or operator may receivemoney from the excess liability trust fund under section 1 of thischapter only if the owner or operator is in substantial compliance (as
defined in 328 IAC 1-1-9) with the following requirements:
(1) The owner or operator has complied with the following:
(A) This article or IC 13-7-20 (before its repeal).
(B) Rules adopted under this article or IC 13-7-20 (before itsrepeal).
A release from an underground petroleum storage tank may notprevent an owner or operator from establishing compliance withthis subdivision to receive money from the excess liability fund.
(2) The owner or operator has paid all registration fees that arerequired under rules adopted under IC 13-23-8-4.5.
(3) The owner or operator has provided the commissioner withevidence of payment of the amount of liability the owner oroperator is required to pay under section 2 of this chapter.
(4) A corrective action plan is approved by the commissioner ordeemed approved under this subdivision. The corrective actionplan for sites with a release from an underground petroleumstorage tank that impacts soil or groundwater, or both, isautomatically deemed approved only as long as:
(A) the plan conforms with:
(i) 329 IAC 9-4 and 329 IAC 9-5; and
(ii) the department's cleanup guidelines set forth in theUnderground Storage Tank Branch Guidance Manual,including the department's risk integrated system ofclosure standards; and
(B) the soil and groundwater contamination is confined tothe owner's or operator's property.
If the corrective action plan fails to satisfy any of therequirements of clause (A) or (B), the plan is automaticallydeemed disapproved. If a corrective action plan is disapproved,the claimant may supplement the plan. The corrective actionplan is automatically deemed approved when the cause for thedisapproval is corrected. For purposes of this subdivision, in theevent of a conflict between compliance with the correctiveaction plan and the department's standards in clause (A), thedepartment's standards control. For purposes of this subdivision,if there is a conflict between compliance with the correctiveaction plan and the board's rules, the board's rules control. Thedepartment may audit any corrective action plan. If thecommissioner denies the plan, a detailed explanation of all thedeficiencies of the plan must be provided with the denial.
(b) An owner, operator, or transferee of property under subsection(e) is eligible to receive money from the fund before the owner,operator, or transferee has a corrective action plan approved ordeemed approved if:
(1) the work for which payment is sought under IC 13-23-9-2was an initial response to a petroleum release that created theneed for emergency action to abate an immediate threat of harmto human health, property, or the environment;
(2) the work is for a site characterization completed inaccordance with 329 IAC 9-5; or (3) the department has not acted upon a corrective action plansubmitted under IC 13-23-9-2 within ninety (90) days after thedate the department receives the:
(A) plan; or
(B) application to the fund;
whichever is later.
(c) The amount of money an owner, operator, or transferee ofproperty under subsection (e) is eligible to receive from the fundunder subsection (b) must be calculated in accordance with 328 IAC1-3.
(d) An owner, an operator, or a transferee of property describedin subsection (e) eligible to receive money from the fund under thissection may assign that right to another person.
(e) A transferee of property upon which a tank was located iseligible to receive money from the fund under this section if thetransferor of the property was eligible to receive money under thissection with respect to the property.
As added by P.L.1-1996, SEC.13. Amended by P.L.67-1996, SEC.7;P.L.9-1996, SEC.14; P.L.2-1997, SEC.48; P.L.131-1997, SEC.3;P.L.2-1998, SEC.54; P.L.14-2001, SEC.9.
IC 13-23-8-4.5
Duty of board to adopt rules
Sec. 4.5. The financial assurance board shall adopt rules underIC 4-22-2 to do the following:
(1) Establish standards, procedures, and penalties for submittingor resubmitting a claim under section 1 of this chapter when theowner or operator has failed to:
(A) register an underground petroleum storage tank fromwhich a release has occurred; or
(B) pay all registration fees that are due under IC 13-23-12-1by the date the fees are due.
(2) Determine eligibility for new owners or operators thatacquire ownership or operation of the underground petroleumstorage tank as a result of:
(A) a bona fide, good faith transaction, negotiated at arm'slength, between parties under separate ownership andcontrol;
(B) a foreclosure or a deed transferred in lieu of aforeclosure;
(C) the exercise of the person's lien rights; or
(D) an inheritance.
As added by P.L.67-1996, SEC.8. Amended by P.L.14-2001, SEC.10.
IC 13-23-8-5
Priority of liability claims and loan guaranties
Sec. 5. The financial assurance board shall adopt rules underIC 4-22-2 to define the manner in which the priority order of liabilityclaims and loan guaranties is established. The rules must givepriority to liability claims associated with releases from underground
storage tanks that pose an immediate and significant threat to theenvironment.
As added by P.L.1-1996, SEC.13.
IC 13-23-8-6
Claims exceeding balance in fund; liability of department anddevelopment finance authority; notice
Sec. 6. (a) If the balance in the excess liability trust fund isinsufficient to pay:
(1) claims under section 1 of this chapter;
(2) necessary personnel and administrative expenses associatedwith the excess liability trust fund; and
(3) the transfer repayment specified in IC 13-23-15-3 before itsexpiration and repeal;
the department shall cease paying claims.
(b) The department shall then notify each claimant that:
(1) the department may not pay the claim; and
(2) the claimant may not use the excess liability trust fund tosatisfy any financial assurance requirements under federal law.
As added by P.L.1-1996, SEC.13. Amended by P.L.14-2001, SEC.11;P.L.1-2002, SEC.66.
IC 13-23-8-7
Discrimination; enforceable right
Sec. 7. (a) The department, with respect to payment of claimsunder section 1 of this chapter, may not discriminate against anyclaimant. However, subject to this chapter, a claimant does not havean enforceable right to the payment of a claim under this chapter.
(b) This chapter does not create any obligation on the part of thestate other than as specifically provided in this article.
As added by P.L.1-1996, SEC.13. Amended by P.L.14-2001, SEC.12.
IC 13-23-8-8
Receipt of funds; amounts; restrictions
Sec. 8. (a) An owner or operator of:
(1) not more than one hundred (100) underground petroleumstorage tanks may not receive more than two million dollars($2,000,000) from the excess liability trust fund during a year;and
(2) more than one hundred (100) underground storage tanksmay not receive more than three million dollars ($3,000,000)from the excess liability trust fund during a year.
(b) If the right to receive money from the fund under this chapteris assigned as described in section 4(d) of this chapter, the combinedamount of money received by the assignor and the assignee from theexcess liability trust fund during a year may not exceed the limitsestablished in subsection (a).
As added by P.L.1-1996, SEC.13. Amended by P.L.9-1996, SEC.15;P.L.14-2001, SEC.13.