CHAPTER 23-37PETROLEUM RELEASE REMEDIATION23-37-01. Declaration of purpose. The purpose of this chapter is to establish:1.A petroleum tank release compensation fund; and2.A petroleum tank release compensation advisory board authorized to review claims<br>against the fund.23-37-02. Definitions. As used in this chapter, unless the context otherwise requires:1."Actually incurred" means, in the case of corrective action expenditures, that the<br>owner, the operator, the landowner, an insurer, or a contractor hired by the owner,<br>operator, or the landlord has expended time and materials and that only that person<br>is receiving reimbursement from the fund.2."Administrator" means the manager of the state fire and tornado fund.3."Board" means the petroleum release compensation board.4."Commissioner" means the insurance commissioner.5."Corrective action" means an action required by the department to minimize,<br>contain, eliminate, remediate, mitigate, or clean up a release, including any remedial<br>emergency measures.The term does not include the repair or replacement ofequipment or preconstructed property.6."Dealer" means any person licensed by the tax commissioner to sell motor vehicle<br>fuel or special fuels within the state.7."Department" means the state department of health.8."Fund" means the petroleum release compensation fund.9."Location" means a physical address or site that has contiguous properties.<br>Noncontiguous properties within a municipality or other governmental jurisdiction are<br>considered separate locations.10."Operator" means any person in control of, or having responsibility for, the daily<br>operation of a tank under this chapter.11."Owner" means any person who holds title to, controls, or possesses an interest in<br>the tank before the discontinuation of its use.12."Person" means an individual, trust, firm, joint stock company, federal agency,<br>corporation, state, municipality, commission, political subdivision of a state, or any<br>interstate body. The term also includes a consortium, a joint venture, a commercial<br>entity, and the United States government.13."Petroleum" means any of the following:a.Gasoline and petroleum products as defined in chapter 19-10.b.Constituents of gasoline and fuel oil under subdivision a.c.Oil sludge and oil refuse.Page No. 114."Portable tank" means a storage tank along with its piping and wiring that is not<br>stationary or affixed, including a tank that is on skids.15."Release" means any unintentional spilling, leaking, emitting, discharging, escaping,<br>leaching, or disposing of petroleum from a tank into the environment whether<br>occurring before or after the effective date of this chapter, but does not include<br>discharges or designed venting allowed under federal or state law or under adopted<br>rules.16."Tank" means any one or a combination of containers, vessels, and enclosures,<br>whether aboveground or underground, including associated piping or appurtenances<br>used to contain an accumulation of petroleum. The term does not include:a.Tanks owned by the federal government.b.Tanks used for the transportation of petroleum.c.A pipeline facility, including gathering lines, regulated under:(1)The Natural Gas Pipeline Safety Act of 1968.(2)The Hazardous Liquid Pipeline Safety Act of 1979.(3)An interstate pipeline facility regulated under state laws comparable to<br>the provisions of law in paragraph 1 or 2.d.An underground farm or residential tank with a capacity of one thousand one<br>hundred gallons [4163.94 liters] or less or an aboveground farm or residential<br>tank of any capacity used for storing motor fuel for noncommercial purposes.<br>However, the owner of an aboveground farm or residential tank may, upon<br>application, register the tank and be eligible for reimbursement under this<br>chapter.e.A tank used for storing heating oil for consumptive use on the premises where<br>stored.f.A surface impoundment, pit, pond, or lagoon.g.A flowthrough process tank.h.A liquid trap or associated gathering lines directly related to oil or gas<br>production or gathering operations.i.A storage tank situated in an underground area such as a basement, cellar,<br>mine working, drift, shaft, or tunnel if the storage tank is situated upon or above<br>the surface of the floor.j.A tank used for the storage of propane.k.A tank used to fuel rail locomotives or surface coal mining equipment.l.An aboveground tank used to feed diesel fuel generators. Upon application,<br>the owner or operator of an aboveground tank used to feed diesel fuel<br>generators may register the tank and is eligible for reimbursement under this<br>chapter.m.A portable tank.Page No. 2n.A tank with a capacity under one thousand three hundred twenty gallons<br>[4996.728 liters] used to store lubricating oil.17."Tank integrity test" means a test to determine that a tank is sound and not leaking.<br>For an underground tank, the term means a certified third-party test that meets<br>environmental protection agency leak detection requirements. For an aboveground<br>tank, the term means a test conducted according to steel tank institute SP 001 or<br>American petroleum institute 653.18."Third party" means a person who is damaged by the act of a registered owner,<br>operator, or dealer requiring corrective action or a person who suffers bodily injury or<br>property damage caused by a petroleum release.23-37-03.Petroleum release compensation board.The petroleum releasecompensation advisory board consists of five members appointed by the governor, three of<br>whom are active in petroleum marketing, one of whom is active in the petroleum, crude oil, or<br>refining industry, and one of whom is active in the insurance industry.A member active inpetroleum marketing must be appointed from a list of three recommended by the North Dakota<br>retail petroleum marketers association. A member active in the petroleum, crude oil, or refining<br>industry must be appointed from a list of three recommended by the North Dakota petroleum<br>council.A member active in the insurance industry must be appointed from a list of threerecommended by the North Dakota professional insurance agents association. Members must<br>be appointed to terms of three years with the terms arranged so that the term of at least one<br>member, but no more than two members, expires June thirtieth of each year. A member shall<br>hold office until a successor is duly appointed and qualified.Each member of the board isentitled to receive sixty-two dollars and fifty cents per diem for each day actually spent in the<br>performance of official duties, plus mileage and expenses as are allowed to other state officers.23-37-04. Administration of fund - Staff. The administrator shall administer the fundaccording to this chapter. The administrator shall convene the board as may be necessary to<br>keep the board apprised of the fund's general operations. However, the board shall meet at least<br>once each half of each calendar year to review and to advise the administrator regarding the<br>administration of the fund, the fund's general operations, and to hear and decide denials of<br>claims by the administrator which may be appealed to the board, and to discuss all claims<br>against the fund.The administrator may employ any assistance and staff necessary toadminister the fund within the limits of legislative appropriation.A claimant aggrieved by adecision of the administrator regarding a claim upon the fund may appeal the decision to the<br>board.The board may sustain, modify, or reverse the decision of the administrator.Theclaimant or the administrator may appeal the board's decision to the commissioner. The decision<br>of the commissioner may be appealed under chapter 28-32.23-37-05.Adoption of rules.The administrator shall adopt rules regarding thepractices and procedures of the fund, the form and procedure for applications for compensation<br>from the fund, procedures for investigation of claims, procedures for determining the amount and<br>type of costs that are eligible for reimbursement from the fund, procedures for persons to perform<br>services for the fund, procedures for appeals to the board by claimants aggrieved by an adverse<br>decision of the administrator, and any other rules as may be appropriate to administer this<br>chapter.23-37-06. Release discovery. If the department has reason to believe a release hasoccurred, it shall notify the administrator. The department shall direct the owner or operator to<br>take reasonable and necessary corrective actions as provided under federal or state law or under<br>adopted rules.23-37-07. Owner or operator not identified. The department may cause legal action tobe brought to compel performance of a corrective action if an identified owner or operator fails or<br>refuses to comply with an order of the department, or the department may engage the services of<br>qualified contractors for performance of a corrective action if an owner or operator cannot be<br>identified.Page No. 323-37-08. Imminent hazard. Upon receipt of information that a petroleum release hasoccurred which may present an imminent or substantial endangerment of health or the<br>environment, the department may take such emergency action as it determines necessary to<br>protect health or the environment.23-37-09. Duty to notify. This chapter does not limit any person's duty to notify thedepartment and to take action related to a release. However, payment for corrective actions<br>required as a result of a petroleum release is governed by this chapter.23-37-10.Providing of information.Any person whom the administrator or thedepartment has reason to believe is an owner or operator, the owner of real property where<br>corrective action is ordered to be taken, or any person who may have information concerning a<br>release shall, if requested by the administrator or the department, or any member, employee, or<br>agent of the administrator or the department, furnish to the administrator or the department any<br>information that person has or may reasonably obtain that is relevant to the release.23-37-11.Examination of records.Any employee of the administrator or thedepartment may, upon presentation of official credentials:1.Examine and copy books, papers, records, memoranda, or data of any person who<br>has a duty to provide information to the administrator or the department under<br>section 23-37-10; and2.Enter upon public or private property for the purpose of taking action authorized by<br>this section, including obtaining information from any person who has a duty to<br>providetheinformationundersection23-37-10,conductingsurveysandinvestigations, and taking corrective action.23-37-12. Responsibility for cost. The owner or operator is liable for the cost of thecorrective action required by the department, including the cost of investigating the releases.<br>This chapter does not create any new cause of action for damages on behalf of third parties for<br>release of petroleum products against the fund or licensed dealers.23-37-13. Liability avoided. No owner or operator may avoid liability by means of aconveyance of any right, title, or interest in real property or by any indemnification, hold harmless<br>agreement, or similar agreement. However, this chapter does not:1.Prohibit a person who may be liable from entering into an agreement by which the<br>person is insured or is a member of a risk retention group, and is thereby<br>indemnified for part or all of the liability;2.Prohibit the enforcement of an insurance, hold harmless, or indemnification<br>agreement; or3.Bar a claim for relief brought by a person who may be liable or by an insurer or<br>guarantor, whether by right of subrogation or otherwise.23-37-14. Other remedies. This chapter does not limit the powers of the administratoror department, or preclude the pursuit of any other administrative, civil, injunctive, or criminal<br>remedies by the administrator or department or any other person. Administrative remedies need<br>not be exhausted in order to proceed under this chapter. The remedies provided by this chapter<br>are in addition to those provided under existing statutory or common law.23-37-15. Revenue to the fund. Revenue from the following sources must be depositedin the state treasury and credited to the fund:1.Any registration fees collected under section 23-37-17;Page No. 42.Any money recovered by the fund under section 23-37-23, and any money paid<br>under an agreement, stipulation, or settlement;3.Any interest attributable to investment of money in the fund; and4.Anymoneyreceivedbytheadministrator in the form of gifts, grants,reimbursements, or appropriations from any source intended to be used for the<br>purposes of the fund.23-37-16.Penalty.A tank owner violating section 23-37-17 is guilty of a class Bmisdemeanor unless another penalty is specifically provided.23-37-17. Registration fee.1.An owner or operator of a tank shall pay an annual registration fee of fifty dollars for<br>each aboveground or underground tank owned or operated by that person. If on the<br>first day of July in any year the amount of money in the petroleum release<br>compensation fund is less than six million dollars, the annual registration fee of fifty<br>dollars is increased to one hundred dollars. If on the first day of July in any year the<br>amount of money in the petroleum release compensation fund is five million five<br>hundred thousand dollars or more and the annual registration fee has been<br>increased to one hundred dollars, the fee must be reduced to fifty dollars. Annual<br>registration fees must be reduced to five dollars if on the first day of July in any year<br>the amount of money in the fund exceeds nine million dollars. Annual registration<br>fees must continue at the fee of five dollars until the money in the fund does not<br>exceed nine million dollars.2.An owner or operator of an existing tank that is discovered at a location that currently<br>and previously has had tanks registered with the fund on or before July 1, 2007,<br>shall pay seventy-five dollars for each aboveground tank and one hundred<br>twenty-five dollars for each underground tank owned or operated by that person for<br>each previous year that the tank was required to be registered for which a fee was<br>not paid. The payment includes the fees and the penalty for the failure to register.3.An owner or operator of an existing tank at a location that was not previously and<br>continuously registered with the fund, whether the registration was required by law or<br>not, on or before July 1, 2007, must provide the fund with a phase two environmental<br>study conducted by a qualified firm according to American society for testing<br>materials standards.A tank integrity test must also be performed.Theenvironmental study and tank integrity test must be reviewed by the commissioner<br>along with the application for registration with the fund. If the commissioner rejects<br>the application, the applicant is denied eligibility to the fund. However, if the site is<br>remediated and the leaking tank is replaced, the applicant may reapply for<br>registration with the fund. A new installation that is using a used tank must provide<br>tank integrity test results for the used tank.Use of a synthetic liner in anaboveground dike system negates the need for a tank integrity test. The owner or<br>operator of a new tank at a new site or a new tank at an existing site that had a tank<br>registered at the site previously need only pay the required fees for registration with<br>the fund.4.If accepted for registration with the fund, the owner or operator of the tank shall pay<br>seventy-five dollars for each aboveground tank and one hundred twenty-five dollars<br>for an underground tank for each underground tank for each previous year that the<br>tank was required to be registered for which a fee was not paid, regardless of<br>ownership in each of those years.5.The registration fees collected under this section must be paid to the fund<br>administrator for deposit in the state treasury for the dedicated credit to the<br>petroleum release compensation fund.Page No. 523-37-18. Reimbursement for corrective action.1.The administrator shall reimburse an eligible owner or operator for ninety percent of<br>the costs of corrective action, including the investigation, which are greater than five<br>thousand dollars and less than one million dollars per occurrence and two million<br>dollars in the aggregate. An eligible tank owner or operator may not be liable for<br>more than twenty thousand dollars out-of-pocket expenses for any one release. A<br>reimbursement may not be made unless the administrator determines that:a.At the time the release was discovered the owner or operator and the tank were<br>in compliance with state and federal rules and rules applicable to the tank,<br>including rules relating to financial responsibility which were in effect at the time<br>of the release;b.The department was given notice of the release as required by federal and<br>state law;c.The owner or operator has paid the first five thousand dollars of the cost of<br>corrective action; andd.The owner or operator, to the extent possible, fully cooperated with the<br>department and the administrator in responding to the release.2.The fund shall compensate third parties for corrective action taken for a petroleum<br>release if the provisions of subdivisions a, b, c, and d of subsection 1 were met at<br>the time the release was discovered. Compensation for third-party corrective action<br>includes compensation for costs incurred in returning the real estate to that level<br>deemed duly remediated by the department.3.The fund shall reimburse the tank owner, operator, or dealer for bodily injuries to a<br>third party caused by a petroleum release if the provisions of subdivisions a, b, c,<br>and d of subsection 1 were met at the time the release was discovered in an amount<br>determined by:a.Findings reduced to judgment in federal or state district court within the state of<br>North Dakota or such other court having jurisdiction over the matter in a<br>proceeding in which the fund has been made a party;b.Findings by an arbitration panel agreed upon in writing by the parties in a<br>proceeding in which the fund has been made a party; orc.A written settlement entered into by the parties in which the commissioner or<br>the commissioner's agent has participated. The settlement must be reviewed<br>and approved by the commissioner.4.In any civil action against the owner, operator, or dealer for damages resulting from<br>a petroleum release, if the pre-leak condition of real estate is an issue and if there is<br>no reasonable means of determining the pre-leak condition of real estate, the<br>condition is that which exists at the time the department determines the real estate<br>has been duly remediated.5.The fund may not compensate for attorney's fees of owners, operators, or dealers,<br>nor may the fund compensate for exemplary damages, criminal fines, or<br>administrative penalties.6.A third party accepting monetary compensation directly from the fund for damages<br>due to a release caused by a tank owner, operator, or dealer covered by the fund is<br>deemed to have waived any cause of action against the fund or against the tank<br>owner, operator, or dealer.Page No. 67.The fund shall reimburse the department for all costs, attorney's fees, and other<br>legal expenses relating to administrative and adjudicative proceedings under this<br>chapter and any subsequent legal proceeding. Any monies reimbursed must be<br>deposited in the department's operating fund in the state treasury and must be spent<br>subject to appropriation by the legislative assembly.23-37-19. Application for reimbursement. Any owner or operator who is a first-partyclaimant who proposes to take corrective action or has undertaken corrective action in response<br>to a release, the time of such release being unknown, may apply to the administrator for partial or<br>full reimbursement under section 23-37-18. An owner or operator who is a first-party claimant<br>may be reimbursed only for costs incurred after July 1, 1989, even if the releases were<br>discovered before July 1, 1989, up to the maximum of twenty-five thousand dollars per location.23-37-20. Administrator to determine costs. A reimbursement for corrective actionstaken by an owner, operator, or dealer may not be made from the fund until the administrator has<br>determined that the costs for which reimbursement is requested were actually incurred and were<br>reasonable. All necessary loss adjustment expenses must be included as a component of the<br>loss and must be paid out of the fund.23-37-21. Liability of responsible person. The right to apply for reimbursement andthe receipt of reimbursement does not limit the liability of an owner or operator for damages or<br>costs incurred as the result of a release.23-37-22. Reimbursement not subject to attachment. The amount of reimbursementto be paid for corrective action that was done by a third party is not subject to legal process or<br>attachment if actually paid to a third party who performed the corrective action.23-37-23. Recovery of expenses. Any reasonable and necessary expenses incurred bythe fund, which exceed the coverage limits provided by section 23-37-18, in taking a corrective<br>action, including costs of investigating a release, and in taking legal actions may be recovered in<br>a civil action in district court brought by the administrator against an owner or operator. The<br>certification of expenses by an approved agent of the fund is prima facie evidence that the<br>expenses are reasonable and necessary. Any expenses that are recovered under this section<br>must be deposited in the fund.23-37-24. Costs exceeding reimbursement. If the cost of any extraordinary authorizedaction under this chapter exceeds amounts awarded to the administrator or the department from<br>the federal government, the administrator may pay the department the cost of the corrective<br>actions, including the cost of investigating a release, if the board finds that the cause was a<br>petroleum substance, that an adequate amount exists in the fund to pay for the corrective action,<br>that the occurrence was extraordinary in scope and size, and that a danger to the health and<br>safety of citizens exists.23-37-25. Coordination of benefits. If an owner or operator has an insurance policythat provides the same coverage as the fund, the administrator of the fund shall pay the share of<br>the covered loss or damage for which the fund is responsible. The share that must be paid from<br>the fund is equal to the proportion that the applicable limit of coverage under the fund bears to<br>the limits of insurance of all insurance coverage on the same basis.23-37-26. Third-party damages - Participation in actions and review of settlements.1.An owner or operator who is sued for damages resulting from a release shall notify<br>the administrator within fourteen days of being served with a summons and<br>complaint. The owner or operator shall also advise the administrator if any insurer is<br>defending the owner or operator and provide to the administrator the name of that<br>insurer.2.An owner or operator who, before litigation, enters into negotiations with a third party<br>who claims to have been damaged by a release, or who receives a demand forPage No. 7payment of damages to a third party who claims to have been damaged by a<br>release, shall notify the administrator within fourteen days of the demand or the<br>negotiations.3.The administrator and the board shall review the conduct of any litigation or<br>negotiation.The administrator may not assume any legal costs incurred by thedefendant or plaintiff, but may participate in discovery, trial proceedings, or<br>settlement negotiations of either disputed liability or damages that bear on the<br>determination of a plaintiff's damages.4.The administrator and the board shall review any settlement negotiations to<br>determine the dollar amount of bodily injury or property damage actually,<br>necessarily, and reasonably incurred by third parties which, if paid by the defendant,<br>would be considered eligible costs.23-37-27. Third-party damages - Documentation.1.An applicant's payments for third-party damages pursuant to a judgment entered in<br>a court must include copies of the notice of entry of judgment and abstract of costs.2.An applicant's payments for third-party damages made by agreement in settlement<br>of litigation must include copies of the settlement agreement and such supporting<br>documents as may be required by the administrator.3.An applicant's payments for third-party damages made by agreement without<br>reference to litigation must include copies of the settlement and such supporting<br>documents as may be required by the administrator.4.The administrator and the board may require a third party who claims bodily injury to<br>be examined by a physician and require that the physician's report be submitted to<br>the administrator. The administrator may require a third party who claims property<br>damage to permit a property appraiser or claims adjuster retained by the<br>administrator to inspect the property and report to the administrator.5.The fund shall pay a judgment against an owner, operator, or dealer awarded to a<br>third party as a result of a third-party claim and property damage against an owner,<br>operator, or dealer registered by the fund.6.The fund shall pay for corrective action as awarded to a third party in any judgment<br>against an owner, operator, or dealer.7.Liability of the tank owner, operator, dealer, or fund to third parties for corrective<br>action or personal injuries and property damage may not exceed, per person, one<br>million dollars. Maximum liability of the fund, including all claims by third parties,<br>may not exceed, for any release site, the maximum provided in section 23-37-18.8.A third party may not bring an action against any owner, operator, or dealer more<br>than three years after a corrective action plan has been approved by the department<br>if the owner, operator, or dealer fully implements and complies with the corrective<br>action plan.9.In investigating a release site or reviewing the implementation of any corrective<br>action plan approved by the department, the department shall determine whether<br>the release currently threatens public health or the environment. The department<br>shall require, based on science and technology appropriate for the site, any<br>monitoring, remediation, or other appropriate corrective action that is reasonably<br>necessary to protect public health or the environment. The department may require<br>corrective action at a release site at any time after a release occurs.Page No. 823-37-28. Matching federal funds. The administrator and the board may annually allowthe department a ten percent matching grant for federal leaking underground storage tank funds<br>to be paid out of the fund if the moneys are available and the administrator and the board<br>determine the allowance appropriate.23-37-29. Fund appropriations. Money in the fund is continuously appropriated to theadministrator for the purpose of making reimbursements under this chapter.23-37-30. Investment of fund. Investment of the fund is under the supervision of thestate investment board in accordance with chapter 21-10. The commissioner may purchase a<br>contract for reinsurance of any risk to be paid by the fund. The administrator may investigate the<br>purchase of insurance that reimburses an owner or operator for property damage claims by third<br>parties other than claims for costs of corrective action.Page No. 9Document Outlinechapter 23-37 petroleum release remediation
CHAPTER 23-37PETROLEUM RELEASE REMEDIATION23-37-01. Declaration of purpose. The purpose of this chapter is to establish:1.A petroleum tank release compensation fund; and2.A petroleum tank release compensation advisory board authorized to review claims<br>against the fund.23-37-02. Definitions. As used in this chapter, unless the context otherwise requires:1."Actually incurred" means, in the case of corrective action expenditures, that the<br>owner, the operator, the landowner, an insurer, or a contractor hired by the owner,<br>operator, or the landlord has expended time and materials and that only that person<br>is receiving reimbursement from the fund.2."Administrator" means the manager of the state fire and tornado fund.3."Board" means the petroleum release compensation board.4."Commissioner" means the insurance commissioner.5."Corrective action" means an action required by the department to minimize,<br>contain, eliminate, remediate, mitigate, or clean up a release, including any remedial<br>emergency measures.The term does not include the repair or replacement ofequipment or preconstructed property.6."Dealer" means any person licensed by the tax commissioner to sell motor vehicle<br>fuel or special fuels within the state.7."Department" means the state department of health.8."Fund" means the petroleum release compensation fund.9."Location" means a physical address or site that has contiguous properties.<br>Noncontiguous properties within a municipality or other governmental jurisdiction are<br>considered separate locations.10."Operator" means any person in control of, or having responsibility for, the daily<br>operation of a tank under this chapter.11."Owner" means any person who holds title to, controls, or possesses an interest in<br>the tank before the discontinuation of its use.12."Person" means an individual, trust, firm, joint stock company, federal agency,<br>corporation, state, municipality, commission, political subdivision of a state, or any<br>interstate body. The term also includes a consortium, a joint venture, a commercial<br>entity, and the United States government.13."Petroleum" means any of the following:a.Gasoline and petroleum products as defined in chapter 19-10.b.Constituents of gasoline and fuel oil under subdivision a.c.Oil sludge and oil refuse.Page No. 114."Portable tank" means a storage tank along with its piping and wiring that is not<br>stationary or affixed, including a tank that is on skids.15."Release" means any unintentional spilling, leaking, emitting, discharging, escaping,<br>leaching, or disposing of petroleum from a tank into the environment whether<br>occurring before or after the effective date of this chapter, but does not include<br>discharges or designed venting allowed under federal or state law or under adopted<br>rules.16."Tank" means any one or a combination of containers, vessels, and enclosures,<br>whether aboveground or underground, including associated piping or appurtenances<br>used to contain an accumulation of petroleum. The term does not include:a.Tanks owned by the federal government.b.Tanks used for the transportation of petroleum.c.A pipeline facility, including gathering lines, regulated under:(1)The Natural Gas Pipeline Safety Act of 1968.(2)The Hazardous Liquid Pipeline Safety Act of 1979.(3)An interstate pipeline facility regulated under state laws comparable to<br>the provisions of law in paragraph 1 or 2.d.An underground farm or residential tank with a capacity of one thousand one<br>hundred gallons [4163.94 liters] or less or an aboveground farm or residential<br>tank of any capacity used for storing motor fuel for noncommercial purposes.<br>However, the owner of an aboveground farm or residential tank may, upon<br>application, register the tank and be eligible for reimbursement under this<br>chapter.e.A tank used for storing heating oil for consumptive use on the premises where<br>stored.f.A surface impoundment, pit, pond, or lagoon.g.A flowthrough process tank.h.A liquid trap or associated gathering lines directly related to oil or gas<br>production or gathering operations.i.A storage tank situated in an underground area such as a basement, cellar,<br>mine working, drift, shaft, or tunnel if the storage tank is situated upon or above<br>the surface of the floor.j.A tank used for the storage of propane.k.A tank used to fuel rail locomotives or surface coal mining equipment.l.An aboveground tank used to feed diesel fuel generators. Upon application,<br>the owner or operator of an aboveground tank used to feed diesel fuel<br>generators may register the tank and is eligible for reimbursement under this<br>chapter.m.A portable tank.Page No. 2n.A tank with a capacity under one thousand three hundred twenty gallons<br>[4996.728 liters] used to store lubricating oil.17."Tank integrity test" means a test to determine that a tank is sound and not leaking.<br>For an underground tank, the term means a certified third-party test that meets<br>environmental protection agency leak detection requirements. For an aboveground<br>tank, the term means a test conducted according to steel tank institute SP 001 or<br>American petroleum institute 653.18."Third party" means a person who is damaged by the act of a registered owner,<br>operator, or dealer requiring corrective action or a person who suffers bodily injury or<br>property damage caused by a petroleum release.23-37-03.Petroleum release compensation board.The petroleum releasecompensation advisory board consists of five members appointed by the governor, three of<br>whom are active in petroleum marketing, one of whom is active in the petroleum, crude oil, or<br>refining industry, and one of whom is active in the insurance industry.A member active inpetroleum marketing must be appointed from a list of three recommended by the North Dakota<br>retail petroleum marketers association. A member active in the petroleum, crude oil, or refining<br>industry must be appointed from a list of three recommended by the North Dakota petroleum<br>council.A member active in the insurance industry must be appointed from a list of threerecommended by the North Dakota professional insurance agents association. Members must<br>be appointed to terms of three years with the terms arranged so that the term of at least one<br>member, but no more than two members, expires June thirtieth of each year. A member shall<br>hold office until a successor is duly appointed and qualified.Each member of the board isentitled to receive sixty-two dollars and fifty cents per diem for each day actually spent in the<br>performance of official duties, plus mileage and expenses as are allowed to other state officers.23-37-04. Administration of fund - Staff. The administrator shall administer the fundaccording to this chapter. The administrator shall convene the board as may be necessary to<br>keep the board apprised of the fund's general operations. However, the board shall meet at least<br>once each half of each calendar year to review and to advise the administrator regarding the<br>administration of the fund, the fund's general operations, and to hear and decide denials of<br>claims by the administrator which may be appealed to the board, and to discuss all claims<br>against the fund.The administrator may employ any assistance and staff necessary toadminister the fund within the limits of legislative appropriation.A claimant aggrieved by adecision of the administrator regarding a claim upon the fund may appeal the decision to the<br>board.The board may sustain, modify, or reverse the decision of the administrator.Theclaimant or the administrator may appeal the board's decision to the commissioner. The decision<br>of the commissioner may be appealed under chapter 28-32.23-37-05.Adoption of rules.The administrator shall adopt rules regarding thepractices and procedures of the fund, the form and procedure for applications for compensation<br>from the fund, procedures for investigation of claims, procedures for determining the amount and<br>type of costs that are eligible for reimbursement from the fund, procedures for persons to perform<br>services for the fund, procedures for appeals to the board by claimants aggrieved by an adverse<br>decision of the administrator, and any other rules as may be appropriate to administer this<br>chapter.23-37-06. Release discovery. If the department has reason to believe a release hasoccurred, it shall notify the administrator. The department shall direct the owner or operator to<br>take reasonable and necessary corrective actions as provided under federal or state law or under<br>adopted rules.23-37-07. Owner or operator not identified. The department may cause legal action tobe brought to compel performance of a corrective action if an identified owner or operator fails or<br>refuses to comply with an order of the department, or the department may engage the services of<br>qualified contractors for performance of a corrective action if an owner or operator cannot be<br>identified.Page No. 323-37-08. Imminent hazard. Upon receipt of information that a petroleum release hasoccurred which may present an imminent or substantial endangerment of health or the<br>environment, the department may take such emergency action as it determines necessary to<br>protect health or the environment.23-37-09. Duty to notify. This chapter does not limit any person's duty to notify thedepartment and to take action related to a release. However, payment for corrective actions<br>required as a result of a petroleum release is governed by this chapter.23-37-10.Providing of information.Any person whom the administrator or thedepartment has reason to believe is an owner or operator, the owner of real property where<br>corrective action is ordered to be taken, or any person who may have information concerning a<br>release shall, if requested by the administrator or the department, or any member, employee, or<br>agent of the administrator or the department, furnish to the administrator or the department any<br>information that person has or may reasonably obtain that is relevant to the release.23-37-11.Examination of records.Any employee of the administrator or thedepartment may, upon presentation of official credentials:1.Examine and copy books, papers, records, memoranda, or data of any person who<br>has a duty to provide information to the administrator or the department under<br>section 23-37-10; and2.Enter upon public or private property for the purpose of taking action authorized by<br>this section, including obtaining information from any person who has a duty to<br>providetheinformationundersection23-37-10,conductingsurveysandinvestigations, and taking corrective action.23-37-12. Responsibility for cost. The owner or operator is liable for the cost of thecorrective action required by the department, including the cost of investigating the releases.<br>This chapter does not create any new cause of action for damages on behalf of third parties for<br>release of petroleum products against the fund or licensed dealers.23-37-13. Liability avoided. No owner or operator may avoid liability by means of aconveyance of any right, title, or interest in real property or by any indemnification, hold harmless<br>agreement, or similar agreement. However, this chapter does not:1.Prohibit a person who may be liable from entering into an agreement by which the<br>person is insured or is a member of a risk retention group, and is thereby<br>indemnified for part or all of the liability;2.Prohibit the enforcement of an insurance, hold harmless, or indemnification<br>agreement; or3.Bar a claim for relief brought by a person who may be liable or by an insurer or<br>guarantor, whether by right of subrogation or otherwise.23-37-14. Other remedies. This chapter does not limit the powers of the administratoror department, or preclude the pursuit of any other administrative, civil, injunctive, or criminal<br>remedies by the administrator or department or any other person. Administrative remedies need<br>not be exhausted in order to proceed under this chapter. The remedies provided by this chapter<br>are in addition to those provided under existing statutory or common law.23-37-15. Revenue to the fund. Revenue from the following sources must be depositedin the state treasury and credited to the fund:1.Any registration fees collected under section 23-37-17;Page No. 42.Any money recovered by the fund under section 23-37-23, and any money paid<br>under an agreement, stipulation, or settlement;3.Any interest attributable to investment of money in the fund; and4.Anymoneyreceivedbytheadministrator in the form of gifts, grants,reimbursements, or appropriations from any source intended to be used for the<br>purposes of the fund.23-37-16.Penalty.A tank owner violating section 23-37-17 is guilty of a class Bmisdemeanor unless another penalty is specifically provided.23-37-17. Registration fee.1.An owner or operator of a tank shall pay an annual registration fee of fifty dollars for<br>each aboveground or underground tank owned or operated by that person. If on the<br>first day of July in any year the amount of money in the petroleum release<br>compensation fund is less than six million dollars, the annual registration fee of fifty<br>dollars is increased to one hundred dollars. If on the first day of July in any year the<br>amount of money in the petroleum release compensation fund is five million five<br>hundred thousand dollars or more and the annual registration fee has been<br>increased to one hundred dollars, the fee must be reduced to fifty dollars. Annual<br>registration fees must be reduced to five dollars if on the first day of July in any year<br>the amount of money in the fund exceeds nine million dollars. Annual registration<br>fees must continue at the fee of five dollars until the money in the fund does not<br>exceed nine million dollars.2.An owner or operator of an existing tank that is discovered at a location that currently<br>and previously has had tanks registered with the fund on or before July 1, 2007,<br>shall pay seventy-five dollars for each aboveground tank and one hundred<br>twenty-five dollars for each underground tank owned or operated by that person for<br>each previous year that the tank was required to be registered for which a fee was<br>not paid. The payment includes the fees and the penalty for the failure to register.3.An owner or operator of an existing tank at a location that was not previously and<br>continuously registered with the fund, whether the registration was required by law or<br>not, on or before July 1, 2007, must provide the fund with a phase two environmental<br>study conducted by a qualified firm according to American society for testing<br>materials standards.A tank integrity test must also be performed.Theenvironmental study and tank integrity test must be reviewed by the commissioner<br>along with the application for registration with the fund. If the commissioner rejects<br>the application, the applicant is denied eligibility to the fund. However, if the site is<br>remediated and the leaking tank is replaced, the applicant may reapply for<br>registration with the fund. A new installation that is using a used tank must provide<br>tank integrity test results for the used tank.Use of a synthetic liner in anaboveground dike system negates the need for a tank integrity test. The owner or<br>operator of a new tank at a new site or a new tank at an existing site that had a tank<br>registered at the site previously need only pay the required fees for registration with<br>the fund.4.If accepted for registration with the fund, the owner or operator of the tank shall pay<br>seventy-five dollars for each aboveground tank and one hundred twenty-five dollars<br>for an underground tank for each underground tank for each previous year that the<br>tank was required to be registered for which a fee was not paid, regardless of<br>ownership in each of those years.5.The registration fees collected under this section must be paid to the fund<br>administrator for deposit in the state treasury for the dedicated credit to the<br>petroleum release compensation fund.Page No. 523-37-18. Reimbursement for corrective action.1.The administrator shall reimburse an eligible owner or operator for ninety percent of<br>the costs of corrective action, including the investigation, which are greater than five<br>thousand dollars and less than one million dollars per occurrence and two million<br>dollars in the aggregate. An eligible tank owner or operator may not be liable for<br>more than twenty thousand dollars out-of-pocket expenses for any one release. A<br>reimbursement may not be made unless the administrator determines that:a.At the time the release was discovered the owner or operator and the tank were<br>in compliance with state and federal rules and rules applicable to the tank,<br>including rules relating to financial responsibility which were in effect at the time<br>of the release;b.The department was given notice of the release as required by federal and<br>state law;c.The owner or operator has paid the first five thousand dollars of the cost of<br>corrective action; andd.The owner or operator, to the extent possible, fully cooperated with the<br>department and the administrator in responding to the release.2.The fund shall compensate third parties for corrective action taken for a petroleum<br>release if the provisions of subdivisions a, b, c, and d of subsection 1 were met at<br>the time the release was discovered. Compensation for third-party corrective action<br>includes compensation for costs incurred in returning the real estate to that level<br>deemed duly remediated by the department.3.The fund shall reimburse the tank owner, operator, or dealer for bodily injuries to a<br>third party caused by a petroleum release if the provisions of subdivisions a, b, c,<br>and d of subsection 1 were met at the time the release was discovered in an amount<br>determined by:a.Findings reduced to judgment in federal or state district court within the state of<br>North Dakota or such other court having jurisdiction over the matter in a<br>proceeding in which the fund has been made a party;b.Findings by an arbitration panel agreed upon in writing by the parties in a<br>proceeding in which the fund has been made a party; orc.A written settlement entered into by the parties in which the commissioner or<br>the commissioner's agent has participated. The settlement must be reviewed<br>and approved by the commissioner.4.In any civil action against the owner, operator, or dealer for damages resulting from<br>a petroleum release, if the pre-leak condition of real estate is an issue and if there is<br>no reasonable means of determining the pre-leak condition of real estate, the<br>condition is that which exists at the time the department determines the real estate<br>has been duly remediated.5.The fund may not compensate for attorney's fees of owners, operators, or dealers,<br>nor may the fund compensate for exemplary damages, criminal fines, or<br>administrative penalties.6.A third party accepting monetary compensation directly from the fund for damages<br>due to a release caused by a tank owner, operator, or dealer covered by the fund is<br>deemed to have waived any cause of action against the fund or against the tank<br>owner, operator, or dealer.Page No. 67.The fund shall reimburse the department for all costs, attorney's fees, and other<br>legal expenses relating to administrative and adjudicative proceedings under this<br>chapter and any subsequent legal proceeding. Any monies reimbursed must be<br>deposited in the department's operating fund in the state treasury and must be spent<br>subject to appropriation by the legislative assembly.23-37-19. Application for reimbursement. Any owner or operator who is a first-partyclaimant who proposes to take corrective action or has undertaken corrective action in response<br>to a release, the time of such release being unknown, may apply to the administrator for partial or<br>full reimbursement under section 23-37-18. An owner or operator who is a first-party claimant<br>may be reimbursed only for costs incurred after July 1, 1989, even if the releases were<br>discovered before July 1, 1989, up to the maximum of twenty-five thousand dollars per location.23-37-20. Administrator to determine costs. A reimbursement for corrective actionstaken by an owner, operator, or dealer may not be made from the fund until the administrator has<br>determined that the costs for which reimbursement is requested were actually incurred and were<br>reasonable. All necessary loss adjustment expenses must be included as a component of the<br>loss and must be paid out of the fund.23-37-21. Liability of responsible person. The right to apply for reimbursement andthe receipt of reimbursement does not limit the liability of an owner or operator for damages or<br>costs incurred as the result of a release.23-37-22. Reimbursement not subject to attachment. The amount of reimbursementto be paid for corrective action that was done by a third party is not subject to legal process or<br>attachment if actually paid to a third party who performed the corrective action.23-37-23. Recovery of expenses. Any reasonable and necessary expenses incurred bythe fund, which exceed the coverage limits provided by section 23-37-18, in taking a corrective<br>action, including costs of investigating a release, and in taking legal actions may be recovered in<br>a civil action in district court brought by the administrator against an owner or operator. The<br>certification of expenses by an approved agent of the fund is prima facie evidence that the<br>expenses are reasonable and necessary. Any expenses that are recovered under this section<br>must be deposited in the fund.23-37-24. Costs exceeding reimbursement. If the cost of any extraordinary authorizedaction under this chapter exceeds amounts awarded to the administrator or the department from<br>the federal government, the administrator may pay the department the cost of the corrective<br>actions, including the cost of investigating a release, if the board finds that the cause was a<br>petroleum substance, that an adequate amount exists in the fund to pay for the corrective action,<br>that the occurrence was extraordinary in scope and size, and that a danger to the health and<br>safety of citizens exists.23-37-25. Coordination of benefits. If an owner or operator has an insurance policythat provides the same coverage as the fund, the administrator of the fund shall pay the share of<br>the covered loss or damage for which the fund is responsible. The share that must be paid from<br>the fund is equal to the proportion that the applicable limit of coverage under the fund bears to<br>the limits of insurance of all insurance coverage on the same basis.23-37-26. Third-party damages - Participation in actions and review of settlements.1.An owner or operator who is sued for damages resulting from a release shall notify<br>the administrator within fourteen days of being served with a summons and<br>complaint. The owner or operator shall also advise the administrator if any insurer is<br>defending the owner or operator and provide to the administrator the name of that<br>insurer.2.An owner or operator who, before litigation, enters into negotiations with a third party<br>who claims to have been damaged by a release, or who receives a demand forPage No. 7payment of damages to a third party who claims to have been damaged by a<br>release, shall notify the administrator within fourteen days of the demand or the<br>negotiations.3.The administrator and the board shall review the conduct of any litigation or<br>negotiation.The administrator may not assume any legal costs incurred by thedefendant or plaintiff, but may participate in discovery, trial proceedings, or<br>settlement negotiations of either disputed liability or damages that bear on the<br>determination of a plaintiff's damages.4.The administrator and the board shall review any settlement negotiations to<br>determine the dollar amount of bodily injury or property damage actually,<br>necessarily, and reasonably incurred by third parties which, if paid by the defendant,<br>would be considered eligible costs.23-37-27. Third-party damages - Documentation.1.An applicant's payments for third-party damages pursuant to a judgment entered in<br>a court must include copies of the notice of entry of judgment and abstract of costs.2.An applicant's payments for third-party damages made by agreement in settlement<br>of litigation must include copies of the settlement agreement and such supporting<br>documents as may be required by the administrator.3.An applicant's payments for third-party damages made by agreement without<br>reference to litigation must include copies of the settlement and such supporting<br>documents as may be required by the administrator.4.The administrator and the board may require a third party who claims bodily injury to<br>be examined by a physician and require that the physician's report be submitted to<br>the administrator. The administrator may require a third party who claims property<br>damage to permit a property appraiser or claims adjuster retained by the<br>administrator to inspect the property and report to the administrator.5.The fund shall pay a judgment against an owner, operator, or dealer awarded to a<br>third party as a result of a third-party claim and property damage against an owner,<br>operator, or dealer registered by the fund.6.The fund shall pay for corrective action as awarded to a third party in any judgment<br>against an owner, operator, or dealer.7.Liability of the tank owner, operator, dealer, or fund to third parties for corrective<br>action or personal injuries and property damage may not exceed, per person, one<br>million dollars. Maximum liability of the fund, including all claims by third parties,<br>may not exceed, for any release site, the maximum provided in section 23-37-18.8.A third party may not bring an action against any owner, operator, or dealer more<br>than three years after a corrective action plan has been approved by the department<br>if the owner, operator, or dealer fully implements and complies with the corrective<br>action plan.9.In investigating a release site or reviewing the implementation of any corrective<br>action plan approved by the department, the department shall determine whether<br>the release currently threatens public health or the environment. The department<br>shall require, based on science and technology appropriate for the site, any<br>monitoring, remediation, or other appropriate corrective action that is reasonably<br>necessary to protect public health or the environment. The department may require<br>corrective action at a release site at any time after a release occurs.Page No. 823-37-28. Matching federal funds. The administrator and the board may annually allowthe department a ten percent matching grant for federal leaking underground storage tank funds<br>to be paid out of the fund if the moneys are available and the administrator and the board<br>determine the allowance appropriate.23-37-29. Fund appropriations. Money in the fund is continuously appropriated to theadministrator for the purpose of making reimbursements under this chapter.23-37-30. Investment of fund. Investment of the fund is under the supervision of thestate investment board in accordance with chapter 21-10. The commissioner may purchase a<br>contract for reinsurance of any risk to be paid by the fund. The administrator may investigate the<br>purchase of insurance that reimburses an owner or operator for property damage claims by third<br>parties other than claims for costs of corrective action.Page No. 9Document Outlinechapter 23-37 petroleum release remediation
CHAPTER 23-37PETROLEUM RELEASE REMEDIATION23-37-01. Declaration of purpose. The purpose of this chapter is to establish:1.A petroleum tank release compensation fund; and2.A petroleum tank release compensation advisory board authorized to review claims<br>against the fund.23-37-02. Definitions. As used in this chapter, unless the context otherwise requires:1."Actually incurred" means, in the case of corrective action expenditures, that the<br>owner, the operator, the landowner, an insurer, or a contractor hired by the owner,<br>operator, or the landlord has expended time and materials and that only that person<br>is receiving reimbursement from the fund.2."Administrator" means the manager of the state fire and tornado fund.3."Board" means the petroleum release compensation board.4."Commissioner" means the insurance commissioner.5."Corrective action" means an action required by the department to minimize,<br>contain, eliminate, remediate, mitigate, or clean up a release, including any remedial<br>emergency measures.The term does not include the repair or replacement ofequipment or preconstructed property.6."Dealer" means any person licensed by the tax commissioner to sell motor vehicle<br>fuel or special fuels within the state.7."Department" means the state department of health.8."Fund" means the petroleum release compensation fund.9."Location" means a physical address or site that has contiguous properties.<br>Noncontiguous properties within a municipality or other governmental jurisdiction are<br>considered separate locations.10."Operator" means any person in control of, or having responsibility for, the daily<br>operation of a tank under this chapter.11."Owner" means any person who holds title to, controls, or possesses an interest in<br>the tank before the discontinuation of its use.12."Person" means an individual, trust, firm, joint stock company, federal agency,<br>corporation, state, municipality, commission, political subdivision of a state, or any<br>interstate body. The term also includes a consortium, a joint venture, a commercial<br>entity, and the United States government.13."Petroleum" means any of the following:a.Gasoline and petroleum products as defined in chapter 19-10.b.Constituents of gasoline and fuel oil under subdivision a.c.Oil sludge and oil refuse.Page No. 114."Portable tank" means a storage tank along with its piping and wiring that is not<br>stationary or affixed, including a tank that is on skids.15."Release" means any unintentional spilling, leaking, emitting, discharging, escaping,<br>leaching, or disposing of petroleum from a tank into the environment whether<br>occurring before or after the effective date of this chapter, but does not include<br>discharges or designed venting allowed under federal or state law or under adopted<br>rules.16."Tank" means any one or a combination of containers, vessels, and enclosures,<br>whether aboveground or underground, including associated piping or appurtenances<br>used to contain an accumulation of petroleum. The term does not include:a.Tanks owned by the federal government.b.Tanks used for the transportation of petroleum.c.A pipeline facility, including gathering lines, regulated under:(1)The Natural Gas Pipeline Safety Act of 1968.(2)The Hazardous Liquid Pipeline Safety Act of 1979.(3)An interstate pipeline facility regulated under state laws comparable to<br>the provisions of law in paragraph 1 or 2.d.An underground farm or residential tank with a capacity of one thousand one<br>hundred gallons [4163.94 liters] or less or an aboveground farm or residential<br>tank of any capacity used for storing motor fuel for noncommercial purposes.<br>However, the owner of an aboveground farm or residential tank may, upon<br>application, register the tank and be eligible for reimbursement under this<br>chapter.e.A tank used for storing heating oil for consumptive use on the premises where<br>stored.f.A surface impoundment, pit, pond, or lagoon.g.A flowthrough process tank.h.A liquid trap or associated gathering lines directly related to oil or gas<br>production or gathering operations.i.A storage tank situated in an underground area such as a basement, cellar,<br>mine working, drift, shaft, or tunnel if the storage tank is situated upon or above<br>the surface of the floor.j.A tank used for the storage of propane.k.A tank used to fuel rail locomotives or surface coal mining equipment.l.An aboveground tank used to feed diesel fuel generators. Upon application,<br>the owner or operator of an aboveground tank used to feed diesel fuel<br>generators may register the tank and is eligible for reimbursement under this<br>chapter.m.A portable tank.Page No. 2n.A tank with a capacity under one thousand three hundred twenty gallons<br>[4996.728 liters] used to store lubricating oil.17."Tank integrity test" means a test to determine that a tank is sound and not leaking.<br>For an underground tank, the term means a certified third-party test that meets<br>environmental protection agency leak detection requirements. For an aboveground<br>tank, the term means a test conducted according to steel tank institute SP 001 or<br>American petroleum institute 653.18."Third party" means a person who is damaged by the act of a registered owner,<br>operator, or dealer requiring corrective action or a person who suffers bodily injury or<br>property damage caused by a petroleum release.23-37-03.Petroleum release compensation board.The petroleum releasecompensation advisory board consists of five members appointed by the governor, three of<br>whom are active in petroleum marketing, one of whom is active in the petroleum, crude oil, or<br>refining industry, and one of whom is active in the insurance industry.A member active inpetroleum marketing must be appointed from a list of three recommended by the North Dakota<br>retail petroleum marketers association. A member active in the petroleum, crude oil, or refining<br>industry must be appointed from a list of three recommended by the North Dakota petroleum<br>council.A member active in the insurance industry must be appointed from a list of threerecommended by the North Dakota professional insurance agents association. Members must<br>be appointed to terms of three years with the terms arranged so that the term of at least one<br>member, but no more than two members, expires June thirtieth of each year. A member shall<br>hold office until a successor is duly appointed and qualified.Each member of the board isentitled to receive sixty-two dollars and fifty cents per diem for each day actually spent in the<br>performance of official duties, plus mileage and expenses as are allowed to other state officers.23-37-04. Administration of fund - Staff. The administrator shall administer the fundaccording to this chapter. The administrator shall convene the board as may be necessary to<br>keep the board apprised of the fund's general operations. However, the board shall meet at least<br>once each half of each calendar year to review and to advise the administrator regarding the<br>administration of the fund, the fund's general operations, and to hear and decide denials of<br>claims by the administrator which may be appealed to the board, and to discuss all claims<br>against the fund.The administrator may employ any assistance and staff necessary toadminister the fund within the limits of legislative appropriation.A claimant aggrieved by adecision of the administrator regarding a claim upon the fund may appeal the decision to the<br>board.The board may sustain, modify, or reverse the decision of the administrator.Theclaimant or the administrator may appeal the board's decision to the commissioner. The decision<br>of the commissioner may be appealed under chapter 28-32.23-37-05.Adoption of rules.The administrator shall adopt rules regarding thepractices and procedures of the fund, the form and procedure for applications for compensation<br>from the fund, procedures for investigation of claims, procedures for determining the amount and<br>type of costs that are eligible for reimbursement from the fund, procedures for persons to perform<br>services for the fund, procedures for appeals to the board by claimants aggrieved by an adverse<br>decision of the administrator, and any other rules as may be appropriate to administer this<br>chapter.23-37-06. Release discovery. If the department has reason to believe a release hasoccurred, it shall notify the administrator. The department shall direct the owner or operator to<br>take reasonable and necessary corrective actions as provided under federal or state law or under<br>adopted rules.23-37-07. Owner or operator not identified. The department may cause legal action tobe brought to compel performance of a corrective action if an identified owner or operator fails or<br>refuses to comply with an order of the department, or the department may engage the services of<br>qualified contractors for performance of a corrective action if an owner or operator cannot be<br>identified.Page No. 323-37-08. Imminent hazard. Upon receipt of information that a petroleum release hasoccurred which may present an imminent or substantial endangerment of health or the<br>environment, the department may take such emergency action as it determines necessary to<br>protect health or the environment.23-37-09. Duty to notify. This chapter does not limit any person's duty to notify thedepartment and to take action related to a release. However, payment for corrective actions<br>required as a result of a petroleum release is governed by this chapter.23-37-10.Providing of information.Any person whom the administrator or thedepartment has reason to believe is an owner or operator, the owner of real property where<br>corrective action is ordered to be taken, or any person who may have information concerning a<br>release shall, if requested by the administrator or the department, or any member, employee, or<br>agent of the administrator or the department, furnish to the administrator or the department any<br>information that person has or may reasonably obtain that is relevant to the release.23-37-11.Examination of records.Any employee of the administrator or thedepartment may, upon presentation of official credentials:1.Examine and copy books, papers, records, memoranda, or data of any person who<br>has a duty to provide information to the administrator or the department under<br>section 23-37-10; and2.Enter upon public or private property for the purpose of taking action authorized by<br>this section, including obtaining information from any person who has a duty to<br>providetheinformationundersection23-37-10,conductingsurveysandinvestigations, and taking corrective action.23-37-12. Responsibility for cost. The owner or operator is liable for the cost of thecorrective action required by the department, including the cost of investigating the releases.<br>This chapter does not create any new cause of action for damages on behalf of third parties for<br>release of petroleum products against the fund or licensed dealers.23-37-13. Liability avoided. No owner or operator may avoid liability by means of aconveyance of any right, title, or interest in real property or by any indemnification, hold harmless<br>agreement, or similar agreement. However, this chapter does not:1.Prohibit a person who may be liable from entering into an agreement by which the<br>person is insured or is a member of a risk retention group, and is thereby<br>indemnified for part or all of the liability;2.Prohibit the enforcement of an insurance, hold harmless, or indemnification<br>agreement; or3.Bar a claim for relief brought by a person who may be liable or by an insurer or<br>guarantor, whether by right of subrogation or otherwise.23-37-14. Other remedies. This chapter does not limit the powers of the administratoror department, or preclude the pursuit of any other administrative, civil, injunctive, or criminal<br>remedies by the administrator or department or any other person. Administrative remedies need<br>not be exhausted in order to proceed under this chapter. The remedies provided by this chapter<br>are in addition to those provided under existing statutory or common law.23-37-15. Revenue to the fund. Revenue from the following sources must be depositedin the state treasury and credited to the fund:1.Any registration fees collected under section 23-37-17;Page No. 42.Any money recovered by the fund under section 23-37-23, and any money paid<br>under an agreement, stipulation, or settlement;3.Any interest attributable to investment of money in the fund; and4.Anymoneyreceivedbytheadministrator in the form of gifts, grants,reimbursements, or appropriations from any source intended to be used for the<br>purposes of the fund.23-37-16.Penalty.A tank owner violating section 23-37-17 is guilty of a class Bmisdemeanor unless another penalty is specifically provided.23-37-17. Registration fee.1.An owner or operator of a tank shall pay an annual registration fee of fifty dollars for<br>each aboveground or underground tank owned or operated by that person. If on the<br>first day of July in any year the amount of money in the petroleum release<br>compensation fund is less than six million dollars, the annual registration fee of fifty<br>dollars is increased to one hundred dollars. If on the first day of July in any year the<br>amount of money in the petroleum release compensation fund is five million five<br>hundred thousand dollars or more and the annual registration fee has been<br>increased to one hundred dollars, the fee must be reduced to fifty dollars. Annual<br>registration fees must be reduced to five dollars if on the first day of July in any year<br>the amount of money in the fund exceeds nine million dollars. Annual registration<br>fees must continue at the fee of five dollars until the money in the fund does not<br>exceed nine million dollars.2.An owner or operator of an existing tank that is discovered at a location that currently<br>and previously has had tanks registered with the fund on or before July 1, 2007,<br>shall pay seventy-five dollars for each aboveground tank and one hundred<br>twenty-five dollars for each underground tank owned or operated by that person for<br>each previous year that the tank was required to be registered for which a fee was<br>not paid. The payment includes the fees and the penalty for the failure to register.3.An owner or operator of an existing tank at a location that was not previously and<br>continuously registered with the fund, whether the registration was required by law or<br>not, on or before July 1, 2007, must provide the fund with a phase two environmental<br>study conducted by a qualified firm according to American society for testing<br>materials standards.A tank integrity test must also be performed.Theenvironmental study and tank integrity test must be reviewed by the commissioner<br>along with the application for registration with the fund. If the commissioner rejects<br>the application, the applicant is denied eligibility to the fund. However, if the site is<br>remediated and the leaking tank is replaced, the applicant may reapply for<br>registration with the fund. A new installation that is using a used tank must provide<br>tank integrity test results for the used tank.Use of a synthetic liner in anaboveground dike system negates the need for a tank integrity test. The owner or<br>operator of a new tank at a new site or a new tank at an existing site that had a tank<br>registered at the site previously need only pay the required fees for registration with<br>the fund.4.If accepted for registration with the fund, the owner or operator of the tank shall pay<br>seventy-five dollars for each aboveground tank and one hundred twenty-five dollars<br>for an underground tank for each underground tank for each previous year that the<br>tank was required to be registered for which a fee was not paid, regardless of<br>ownership in each of those years.5.The registration fees collected under this section must be paid to the fund<br>administrator for deposit in the state treasury for the dedicated credit to the<br>petroleum release compensation fund.Page No. 523-37-18. Reimbursement for corrective action.1.The administrator shall reimburse an eligible owner or operator for ninety percent of<br>the costs of corrective action, including the investigation, which are greater than five<br>thousand dollars and less than one million dollars per occurrence and two million<br>dollars in the aggregate. An eligible tank owner or operator may not be liable for<br>more than twenty thousand dollars out-of-pocket expenses for any one release. A<br>reimbursement may not be made unless the administrator determines that:a.At the time the release was discovered the owner or operator and the tank were<br>in compliance with state and federal rules and rules applicable to the tank,<br>including rules relating to financial responsibility which were in effect at the time<br>of the release;b.The department was given notice of the release as required by federal and<br>state law;c.The owner or operator has paid the first five thousand dollars of the cost of<br>corrective action; andd.The owner or operator, to the extent possible, fully cooperated with the<br>department and the administrator in responding to the release.2.The fund shall compensate third parties for corrective action taken for a petroleum<br>release if the provisions of subdivisions a, b, c, and d of subsection 1 were met at<br>the time the release was discovered. Compensation for third-party corrective action<br>includes compensation for costs incurred in returning the real estate to that level<br>deemed duly remediated by the department.3.The fund shall reimburse the tank owner, operator, or dealer for bodily injuries to a<br>third party caused by a petroleum release if the provisions of subdivisions a, b, c,<br>and d of subsection 1 were met at the time the release was discovered in an amount<br>determined by:a.Findings reduced to judgment in federal or state district court within the state of<br>North Dakota or such other court having jurisdiction over the matter in a<br>proceeding in which the fund has been made a party;b.Findings by an arbitration panel agreed upon in writing by the parties in a<br>proceeding in which the fund has been made a party; orc.A written settlement entered into by the parties in which the commissioner or<br>the commissioner's agent has participated. The settlement must be reviewed<br>and approved by the commissioner.4.In any civil action against the owner, operator, or dealer for damages resulting from<br>a petroleum release, if the pre-leak condition of real estate is an issue and if there is<br>no reasonable means of determining the pre-leak condition of real estate, the<br>condition is that which exists at the time the department determines the real estate<br>has been duly remediated.5.The fund may not compensate for attorney's fees of owners, operators, or dealers,<br>nor may the fund compensate for exemplary damages, criminal fines, or<br>administrative penalties.6.A third party accepting monetary compensation directly from the fund for damages<br>due to a release caused by a tank owner, operator, or dealer covered by the fund is<br>deemed to have waived any cause of action against the fund or against the tank<br>owner, operator, or dealer.Page No. 67.The fund shall reimburse the department for all costs, attorney's fees, and other<br>legal expenses relating to administrative and adjudicative proceedings under this<br>chapter and any subsequent legal proceeding. Any monies reimbursed must be<br>deposited in the department's operating fund in the state treasury and must be spent<br>subject to appropriation by the legislative assembly.23-37-19. Application for reimbursement. Any owner or operator who is a first-partyclaimant who proposes to take corrective action or has undertaken corrective action in response<br>to a release, the time of such release being unknown, may apply to the administrator for partial or<br>full reimbursement under section 23-37-18. An owner or operator who is a first-party claimant<br>may be reimbursed only for costs incurred after July 1, 1989, even if the releases were<br>discovered before July 1, 1989, up to the maximum of twenty-five thousand dollars per location.23-37-20. Administrator to determine costs. A reimbursement for corrective actionstaken by an owner, operator, or dealer may not be made from the fund until the administrator has<br>determined that the costs for which reimbursement is requested were actually incurred and were<br>reasonable. All necessary loss adjustment expenses must be included as a component of the<br>loss and must be paid out of the fund.23-37-21. Liability of responsible person. The right to apply for reimbursement andthe receipt of reimbursement does not limit the liability of an owner or operator for damages or<br>costs incurred as the result of a release.23-37-22. Reimbursement not subject to attachment. The amount of reimbursementto be paid for corrective action that was done by a third party is not subject to legal process or<br>attachment if actually paid to a third party who performed the corrective action.23-37-23. Recovery of expenses. Any reasonable and necessary expenses incurred bythe fund, which exceed the coverage limits provided by section 23-37-18, in taking a corrective<br>action, including costs of investigating a release, and in taking legal actions may be recovered in<br>a civil action in district court brought by the administrator against an owner or operator. The<br>certification of expenses by an approved agent of the fund is prima facie evidence that the<br>expenses are reasonable and necessary. Any expenses that are recovered under this section<br>must be deposited in the fund.23-37-24. Costs exceeding reimbursement. If the cost of any extraordinary authorizedaction under this chapter exceeds amounts awarded to the administrator or the department from<br>the federal government, the administrator may pay the department the cost of the corrective<br>actions, including the cost of investigating a release, if the board finds that the cause was a<br>petroleum substance, that an adequate amount exists in the fund to pay for the corrective action,<br>that the occurrence was extraordinary in scope and size, and that a danger to the health and<br>safety of citizens exists.23-37-25. Coordination of benefits. If an owner or operator has an insurance policythat provides the same coverage as the fund, the administrator of the fund shall pay the share of<br>the covered loss or damage for which the fund is responsible. The share that must be paid from<br>the fund is equal to the proportion that the applicable limit of coverage under the fund bears to<br>the limits of insurance of all insurance coverage on the same basis.23-37-26. Third-party damages - Participation in actions and review of settlements.1.An owner or operator who is sued for damages resulting from a release shall notify<br>the administrator within fourteen days of being served with a summons and<br>complaint. The owner or operator shall also advise the administrator if any insurer is<br>defending the owner or operator and provide to the administrator the name of that<br>insurer.2.An owner or operator who, before litigation, enters into negotiations with a third party<br>who claims to have been damaged by a release, or who receives a demand forPage No. 7payment of damages to a third party who claims to have been damaged by a<br>release, shall notify the administrator within fourteen days of the demand or the<br>negotiations.3.The administrator and the board shall review the conduct of any litigation or<br>negotiation.The administrator may not assume any legal costs incurred by thedefendant or plaintiff, but may participate in discovery, trial proceedings, or<br>settlement negotiations of either disputed liability or damages that bear on the<br>determination of a plaintiff's damages.4.The administrator and the board shall review any settlement negotiations to<br>determine the dollar amount of bodily injury or property damage actually,<br>necessarily, and reasonably incurred by third parties which, if paid by the defendant,<br>would be considered eligible costs.23-37-27. Third-party damages - Documentation.1.An applicant's payments for third-party damages pursuant to a judgment entered in<br>a court must include copies of the notice of entry of judgment and abstract of costs.2.An applicant's payments for third-party damages made by agreement in settlement<br>of litigation must include copies of the settlement agreement and such supporting<br>documents as may be required by the administrator.3.An applicant's payments for third-party damages made by agreement without<br>reference to litigation must include copies of the settlement and such supporting<br>documents as may be required by the administrator.4.The administrator and the board may require a third party who claims bodily injury to<br>be examined by a physician and require that the physician's report be submitted to<br>the administrator. The administrator may require a third party who claims property<br>damage to permit a property appraiser or claims adjuster retained by the<br>administrator to inspect the property and report to the administrator.5.The fund shall pay a judgment against an owner, operator, or dealer awarded to a<br>third party as a result of a third-party claim and property damage against an owner,<br>operator, or dealer registered by the fund.6.The fund shall pay for corrective action as awarded to a third party in any judgment<br>against an owner, operator, or dealer.7.Liability of the tank owner, operator, dealer, or fund to third parties for corrective<br>action or personal injuries and property damage may not exceed, per person, one<br>million dollars. Maximum liability of the fund, including all claims by third parties,<br>may not exceed, for any release site, the maximum provided in section 23-37-18.8.A third party may not bring an action against any owner, operator, or dealer more<br>than three years after a corrective action plan has been approved by the department<br>if the owner, operator, or dealer fully implements and complies with the corrective<br>action plan.9.In investigating a release site or reviewing the implementation of any corrective<br>action plan approved by the department, the department shall determine whether<br>the release currently threatens public health or the environment. The department<br>shall require, based on science and technology appropriate for the site, any<br>monitoring, remediation, or other appropriate corrective action that is reasonably<br>necessary to protect public health or the environment. The department may require<br>corrective action at a release site at any time after a release occurs.Page No. 823-37-28. Matching federal funds. The administrator and the board may annually allowthe department a ten percent matching grant for federal leaking underground storage tank funds<br>to be paid out of the fund if the moneys are available and the administrator and the board<br>determine the allowance appropriate.23-37-29. Fund appropriations. Money in the fund is continuously appropriated to theadministrator for the purpose of making reimbursements under this chapter.23-37-30. Investment of fund. Investment of the fund is under the supervision of thestate investment board in accordance with chapter 21-10. The commissioner may purchase a<br>contract for reinsurance of any risk to be paid by the fund. The administrator may investigate the<br>purchase of insurance that reimburses an owner or operator for property damage claims by third<br>parties other than claims for costs of corrective action.Page No. 9Document Outlinechapter 23-37 petroleum release remediation
