§ 62.1-44.34:11. Virginia Petroleum Storage Tank Fund.
A. The Virginia Petroleum Storage Tank Fund is hereby established as anonlapsing revolving fund to be used by the Board for (i) administering thestate regulatory programs authorized by Articles 9, 10 and 11 (§ 62.1-44.34:8et seq.) of this chapter, (ii) demonstrating financial responsibility, and(iii) other purposes as provided for by applicable provisions of state andfederal law. All expenses, costs, civil penalties, charges and judgmentsrecovered by or on behalf of the Board pursuant to Articles 9, 10 and 11 ofthis chapter, and all moneys received as reimbursement in accordance withapplicable provisions of federal law and all fees collected pursuant to §§62.1-44.34:19.1 and 62.1-44.34:21, shall be deposited into the Fund. Interestearned on the Fund shall be credited to the Fund. No moneys shall be creditedto the balance in the Fund until they have been received by the Fund. TheFund shall be established on the books of the Comptroller and any fundsremaining in such Fund at the end of the biennium shall not revert to thegeneral fund but shall remain in the Fund.
The Fund shall be administered by the Board consistent with the provisions ofSubtitle I of the federal Solid Waste Disposal Act (P.L. 98-616, § 9001 etseq.) and any approved state underground storage tank program and inaccordance with the following provisions:
1. The Fund shall be maintained in a separate account. An accounting ofmoneys received and disbursed shall be kept, and furnished upon request tothe Governor or the General Assembly.
2. Disbursements from the Fund may be made only for the following purposes:
a. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person, in taking corrective action for any release of petroleuminto the environment from an underground storage tank which are in excess ofthe per occurrence financial responsibility requirement imposed in subsectionB of § 62.1-44.34:12, up to $1 million.
b. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person for compensating third parties, including payment ofjudgments for bodily injury and property damage caused by the release ofpetroleum into the environment from an underground storage tank, which are inexcess of the per occurrence financial responsibility requirement imposed bysubsection B of § 62.1-44.34:12, up to $1 million. The reasonableness andnecessity of costs shall be determined based upon documented or actualdamage, loss in value, and other relevant factors. Disbursements for thirdparty claims shall be subordinate to disbursements for the corrective actioncosts in subdivision A 2 a of this section. Compensation for bodily injuryand property damage shall be paid only in accordance with final court ordersin cases which have been tried to final judgment no longer (i) subject toappeal, (ii) in accordance with final arbitration awards not subject toappeal, or (iii) where the Board approved the settlement of claim between theowner or operator and the third-party prior to execution by the parties.
c. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities do not exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than 25,000 gallons, per occurrence costs in excess of $2,500up to $1 million; (ii) for an operator of a facility with a storage capacityfrom 25,000 gallons to 100,000 gallons, per occurrence costs in excess of$5,000 up to $1 million; (iii) for an operator of a facility with a storagecapacity from 100,000 gallons to four million gallons, per occurrence costsin excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iv) for an operator of a facility with a storage capacitygreater than four million gallons, per occurrence costs in excess of $200,000up to $1 million. For purposes of this subdivision (2 c), the per occurrencefinancial responsibility requirements for an operator shall be based on thetotal storage capacity for the facility from which the discharge occurs.
d. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than four million gallons, per occurrence costs in excess of$200,000 up to $1 million; (ii) for an operator of a facility with a storagecapacity from four million gallons to 20 million gallons, per occurrencecosts in excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iii) an operator of a facility with a storage capacity greaterthan 20 million gallons shall have no access to the Fund. For purposes ofthis subdivision, the per occurrence financial responsibility requirementsfor an operator shall be based on the total storage capacity for allfacilities located within the Commonwealth.
e. Costs incurred by the Board in taking immediate corrective action tocontain or mitigate the effects of any release of petroleum into theenvironment from an underground storage tank or from underground storagetanks exempted in subdivisions 1 and 2 of the definition of undergroundstorage tank in § 62.1-44.34:10, if such action is necessary, in the judgmentof the Board, to protect human health and the environment.
f. Costs of corrective action up to $1 million for any release of petroleuminto the environment from underground storage tanks or from undergroundstorage tanks exempted in subdivisions 1 and 2 of the definition ofunderground storage tank in § 62.1-44.34:10 (i) whose owner or operatorcannot be determined by the Board within 90 days; or (ii) whose owner oroperator is incapable, in the judgment of the Board, of carrying out suchcorrective action properly.
g. Costs of corrective action incurred by the Board for any release ofpetroleum into the environment from underground storage tanks which areotherwise specifically listed in exemptions 1 through 9 of the definition ofan underground storage tank in § 62.1-44.34:10.
h. Reasonable and necessary per occurrence costs of corrective actionincurred for releases reported after December 22, 1989, by the owner oroperator in excess of $500 up to $1 million for any release of petroleum intothe environment from an underground storage tank exempted in subdivisions 1and 2 of the definition of an underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
i. The "cost share" of corrective action with respect to any release ofpetroleum into the environment from underground storage tanks undertakenunder a cooperative agreement with the Administrator of the United StatesEnvironmental Protection Agency, as determined by the Administrator of theUnited States Environmental Protection Agency in accordance with theprovisions of § 9003 (h) (7) (B) of the United States Public Law 98-616 (asamended in 1986 by United States Public Law 99-662).
j. Administrative costs incurred by the Board in carrying out the provisionsof regulatory programs authorized by Articles 9, 10, and 11 (§ 62.1-44.34:8et seq.) of this chapter.
k. All costs and expenses, including but not limited to personnel,administrative, and equipment costs and expenses, directly incurred by theBoard or by any other state agency acting at the direction of the Board, inand for the abatement, containment, removal and disposal of oil pursuant toArticle 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
l. Procurement, maintenance and replenishment of materials, equipment andsupplies, in such quantities and at such locations as the Board may deemnecessary, for the abatement, containment, removal and disposal of oilpursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
m. Costs and expenses, incurred by the Board or by any other state agency,acting at the direction of the Board, for the protection, cleanup andrehabilitation of waterfowl, wildlife, shellfish beds and other naturalresources, damaged or threatened by the discharge of oil, owned by theCommonwealth or held in trust by the Commonwealth for the benefit of itscitizens.
n. Refund of cash deposits held in escrow pursuant to Article 11 (§62.1-44.34:14 et seq.) of Chapter 3.1 of this title and reasonable interestthereon, and refunds of fees collected pursuant to § 62.1-44.34:21 asauthorized by this chapter.
o. Administrative costs incurred by the Department of Motor Vehicles in thecollection of fees specified in § 62.1-44.34:13.
p. Reasonable and necessary costs incurred by the Virginia Department ofTransportation in taking corrective action on property acquired fortransportation purposes. If the costs of taking corrective action arerecovered, in whole or in part, from any responsible party, the recoveryshall be deposited to the Fund.
q. Reasonable and necessary per occurrence costs for releases reported afterDecember 22, 1989, in taking corrective action for any release of petroleuminto the environment from an underground storage tank, which are in excess of$5,000 up to $1 million, by any person who, without participating in themanagement of an underground storage tank or being otherwise engaged inpetroleum production, refining, and marketing, holds indicia of ownershipprimarily to protect the holder's security interest in the tank.
3. No funds shall be paid for reimbursement of costs incurred for correctiveaction taken prior to December 22, 1989, by an owner or operator of anunderground storage tank, or an owner of an underground storage tank exemptedin subdivisions 1 and 2 of the definition of an underground storage tank in §62.1-44.34:10, or an owner of an aboveground storage tank with a capacity of5,000 gallons or less used for storing heating oil for consumption on thepremises where stored.
4. No funds shall be paid for reimbursement of costs incurred prior toJanuary 1, 1992, by an operator of a facility for containment and cleanup ofa release from a facility of a product subject to § 62.1-44.34:13.
5. No funds shall be paid for reimbursement of moneys expended for payment ofinterest or other finance charges on loans which were used for correctiveaction or containment and cleanup of a release by a person in subdivisions A3 or A 4 of this section, except for an owner or operator which is exemptfrom taxation under § 501 (c) (3) of the Internal Revenue Code, providedthat: (i) the loan moneys have been paid for corrective action that waspre-approved by the Board, (ii) any and all disbursements received from theFund shall be paid against the loan or for interest and points, and (iii) thepayment of interest and points under this subdivision shall be limited tofive years from the date the release is reported to the Board. The Board mayextend the period for payment of interest and points if, in the judgment ofthe Board, such action is necessary. The restrictions imposed in clauses (i),(ii) and (iii) shall not apply to loans made prior to June 1, 1992, to anowner or operator exempt from taxation under § 501 (c) (3) of the InternalRevenue Code.
6. No funds shall be paid for penalties, charges or fines imposed pursuant toany applicable local, state or federal law.
7. No funds shall be paid for containment and cleanup costs that arereimbursed or are reimbursable from other applicable state or federalprograms.
8. No funds shall be paid if the operator of the facility has not compliedwith applicable statutes or regulations governing reporting, prevention,containment and cleanup of a discharge of oil.
9. No funds shall be paid if the owner or operator of an underground storagetank or the operator of an aboveground storage tank facility fails to reporta release of petroleum or a discharge of oil to the Board as required byapplicable statutes, laws or regulations.
10. No funds shall be paid from the Fund unless a reimbursement claim hasbeen filed with the Board within two years from the date the Board issues asite remediation closure letter for that release or July 1, 2000, whicheverdate is later.
11. The Fund balance shall be maintained at a level sufficient to ensure thatthe Fund can serve as a financial responsibility demonstration mechanism forthe owners and operators of underground storage tanks. Any disbursements madeby the Board pursuant to subdivision 2 of this subsection may be temporarilyreduced or delayed, in whole or in part, if such action is necessary, in thejudgment of the Board, to maintain the Fund balance.
B. The Board shall seek recovery of moneys expended from the Fund forcorrective action under this section where the owner or operator of anunderground storage tank has violated substantive environmental protectionrules and regulations pertaining to underground storage tanks which have beenpromulgated by the Board.
C. For costs incurred for corrective action as authorized in subdivision A 2e of this section, the Board shall seek recovery of moneys from the owner oroperator of an underground storage tank up to the minimum financialresponsibility requirement imposed on the owner or operator in subsection Bof § 62.1-44.34:12 if any, or seek recovery of such costs incurred from anyavailable federal government funds.
D. For costs incurred for corrective action taken resulting from a releasefrom underground storage tanks specified in subdivision A 2 f of thissection, the Board shall seek recovery of moneys from the owner or operatorup to the minimum financial responsibility requirement imposed on the owneror operator in subsection B of § 62.1-44.34:12 if any, or seek recovery ofsuch costs incurred from any available federal government funds.
E. The Board shall seek recovery of moneys expended from the Fund for costsincurred for corrective action as authorized in subdivision A 2 g of thissection or seek recovery of such costs incurred from any available federalgovernment funds. However, the Board shall not seek recovery of moneysexpended from the Fund for costs of corrective action in excess of $500 fromthe owner or operator of an underground tank exempted in subdivisions 1 and 2of the definition of underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
F. The Board shall have the right of subrogation for moneys expended from theFund as compensation for personal injury, death or property damage againstany person who is liable for such injury, death or damage.
G. The Board shall promptly initiate an action to recover all costs andexpenses incurred by the Commonwealth for investigation, containment andcleanup of a discharge of oil or threat of discharge against any personliable for a discharge of oil as specified in Article 11 (§ 62.1-44.34:14 etseq.) of Chapter 3.1 of this title; however, the Board shall seek recoveryfrom an operator of expenditures from the Fund only in the amount by whichsuch expenditures exceed the amount authorized to be disbursed to theoperator under subdivisions A 2 through A 8 of this section.
(1987, c. 677; 1989, cc. 430, 627; 1990, cc. 580, 581, 582, 917; 1992, cc.456, 819; 1993, cc. 20, 375; 1994, cc. 196, 535; 1996, cc. 737, 979; 1998, c.87; 2004, c. 485.)
§ 62.1-44.34:11. Virginia Petroleum Storage Tank Fund.
A. The Virginia Petroleum Storage Tank Fund is hereby established as anonlapsing revolving fund to be used by the Board for (i) administering thestate regulatory programs authorized by Articles 9, 10 and 11 (§ 62.1-44.34:8et seq.) of this chapter, (ii) demonstrating financial responsibility, and(iii) other purposes as provided for by applicable provisions of state andfederal law. All expenses, costs, civil penalties, charges and judgmentsrecovered by or on behalf of the Board pursuant to Articles 9, 10 and 11 ofthis chapter, and all moneys received as reimbursement in accordance withapplicable provisions of federal law and all fees collected pursuant to §§62.1-44.34:19.1 and 62.1-44.34:21, shall be deposited into the Fund. Interestearned on the Fund shall be credited to the Fund. No moneys shall be creditedto the balance in the Fund until they have been received by the Fund. TheFund shall be established on the books of the Comptroller and any fundsremaining in such Fund at the end of the biennium shall not revert to thegeneral fund but shall remain in the Fund.
The Fund shall be administered by the Board consistent with the provisions ofSubtitle I of the federal Solid Waste Disposal Act (P.L. 98-616, § 9001 etseq.) and any approved state underground storage tank program and inaccordance with the following provisions:
1. The Fund shall be maintained in a separate account. An accounting ofmoneys received and disbursed shall be kept, and furnished upon request tothe Governor or the General Assembly.
2. Disbursements from the Fund may be made only for the following purposes:
a. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person, in taking corrective action for any release of petroleuminto the environment from an underground storage tank which are in excess ofthe per occurrence financial responsibility requirement imposed in subsectionB of § 62.1-44.34:12, up to $1 million.
b. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person for compensating third parties, including payment ofjudgments for bodily injury and property damage caused by the release ofpetroleum into the environment from an underground storage tank, which are inexcess of the per occurrence financial responsibility requirement imposed bysubsection B of § 62.1-44.34:12, up to $1 million. The reasonableness andnecessity of costs shall be determined based upon documented or actualdamage, loss in value, and other relevant factors. Disbursements for thirdparty claims shall be subordinate to disbursements for the corrective actioncosts in subdivision A 2 a of this section. Compensation for bodily injuryand property damage shall be paid only in accordance with final court ordersin cases which have been tried to final judgment no longer (i) subject toappeal, (ii) in accordance with final arbitration awards not subject toappeal, or (iii) where the Board approved the settlement of claim between theowner or operator and the third-party prior to execution by the parties.
c. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities do not exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than 25,000 gallons, per occurrence costs in excess of $2,500up to $1 million; (ii) for an operator of a facility with a storage capacityfrom 25,000 gallons to 100,000 gallons, per occurrence costs in excess of$5,000 up to $1 million; (iii) for an operator of a facility with a storagecapacity from 100,000 gallons to four million gallons, per occurrence costsin excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iv) for an operator of a facility with a storage capacitygreater than four million gallons, per occurrence costs in excess of $200,000up to $1 million. For purposes of this subdivision (2 c), the per occurrencefinancial responsibility requirements for an operator shall be based on thetotal storage capacity for the facility from which the discharge occurs.
d. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than four million gallons, per occurrence costs in excess of$200,000 up to $1 million; (ii) for an operator of a facility with a storagecapacity from four million gallons to 20 million gallons, per occurrencecosts in excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iii) an operator of a facility with a storage capacity greaterthan 20 million gallons shall have no access to the Fund. For purposes ofthis subdivision, the per occurrence financial responsibility requirementsfor an operator shall be based on the total storage capacity for allfacilities located within the Commonwealth.
e. Costs incurred by the Board in taking immediate corrective action tocontain or mitigate the effects of any release of petroleum into theenvironment from an underground storage tank or from underground storagetanks exempted in subdivisions 1 and 2 of the definition of undergroundstorage tank in § 62.1-44.34:10, if such action is necessary, in the judgmentof the Board, to protect human health and the environment.
f. Costs of corrective action up to $1 million for any release of petroleuminto the environment from underground storage tanks or from undergroundstorage tanks exempted in subdivisions 1 and 2 of the definition ofunderground storage tank in § 62.1-44.34:10 (i) whose owner or operatorcannot be determined by the Board within 90 days; or (ii) whose owner oroperator is incapable, in the judgment of the Board, of carrying out suchcorrective action properly.
g. Costs of corrective action incurred by the Board for any release ofpetroleum into the environment from underground storage tanks which areotherwise specifically listed in exemptions 1 through 9 of the definition ofan underground storage tank in § 62.1-44.34:10.
h. Reasonable and necessary per occurrence costs of corrective actionincurred for releases reported after December 22, 1989, by the owner oroperator in excess of $500 up to $1 million for any release of petroleum intothe environment from an underground storage tank exempted in subdivisions 1and 2 of the definition of an underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
i. The "cost share" of corrective action with respect to any release ofpetroleum into the environment from underground storage tanks undertakenunder a cooperative agreement with the Administrator of the United StatesEnvironmental Protection Agency, as determined by the Administrator of theUnited States Environmental Protection Agency in accordance with theprovisions of § 9003 (h) (7) (B) of the United States Public Law 98-616 (asamended in 1986 by United States Public Law 99-662).
j. Administrative costs incurred by the Board in carrying out the provisionsof regulatory programs authorized by Articles 9, 10, and 11 (§ 62.1-44.34:8et seq.) of this chapter.
k. All costs and expenses, including but not limited to personnel,administrative, and equipment costs and expenses, directly incurred by theBoard or by any other state agency acting at the direction of the Board, inand for the abatement, containment, removal and disposal of oil pursuant toArticle 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
l. Procurement, maintenance and replenishment of materials, equipment andsupplies, in such quantities and at such locations as the Board may deemnecessary, for the abatement, containment, removal and disposal of oilpursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
m. Costs and expenses, incurred by the Board or by any other state agency,acting at the direction of the Board, for the protection, cleanup andrehabilitation of waterfowl, wildlife, shellfish beds and other naturalresources, damaged or threatened by the discharge of oil, owned by theCommonwealth or held in trust by the Commonwealth for the benefit of itscitizens.
n. Refund of cash deposits held in escrow pursuant to Article 11 (§62.1-44.34:14 et seq.) of Chapter 3.1 of this title and reasonable interestthereon, and refunds of fees collected pursuant to § 62.1-44.34:21 asauthorized by this chapter.
o. Administrative costs incurred by the Department of Motor Vehicles in thecollection of fees specified in § 62.1-44.34:13.
p. Reasonable and necessary costs incurred by the Virginia Department ofTransportation in taking corrective action on property acquired fortransportation purposes. If the costs of taking corrective action arerecovered, in whole or in part, from any responsible party, the recoveryshall be deposited to the Fund.
q. Reasonable and necessary per occurrence costs for releases reported afterDecember 22, 1989, in taking corrective action for any release of petroleuminto the environment from an underground storage tank, which are in excess of$5,000 up to $1 million, by any person who, without participating in themanagement of an underground storage tank or being otherwise engaged inpetroleum production, refining, and marketing, holds indicia of ownershipprimarily to protect the holder's security interest in the tank.
3. No funds shall be paid for reimbursement of costs incurred for correctiveaction taken prior to December 22, 1989, by an owner or operator of anunderground storage tank, or an owner of an underground storage tank exemptedin subdivisions 1 and 2 of the definition of an underground storage tank in §62.1-44.34:10, or an owner of an aboveground storage tank with a capacity of5,000 gallons or less used for storing heating oil for consumption on thepremises where stored.
4. No funds shall be paid for reimbursement of costs incurred prior toJanuary 1, 1992, by an operator of a facility for containment and cleanup ofa release from a facility of a product subject to § 62.1-44.34:13.
5. No funds shall be paid for reimbursement of moneys expended for payment ofinterest or other finance charges on loans which were used for correctiveaction or containment and cleanup of a release by a person in subdivisions A3 or A 4 of this section, except for an owner or operator which is exemptfrom taxation under § 501 (c) (3) of the Internal Revenue Code, providedthat: (i) the loan moneys have been paid for corrective action that waspre-approved by the Board, (ii) any and all disbursements received from theFund shall be paid against the loan or for interest and points, and (iii) thepayment of interest and points under this subdivision shall be limited tofive years from the date the release is reported to the Board. The Board mayextend the period for payment of interest and points if, in the judgment ofthe Board, such action is necessary. The restrictions imposed in clauses (i),(ii) and (iii) shall not apply to loans made prior to June 1, 1992, to anowner or operator exempt from taxation under § 501 (c) (3) of the InternalRevenue Code.
6. No funds shall be paid for penalties, charges or fines imposed pursuant toany applicable local, state or federal law.
7. No funds shall be paid for containment and cleanup costs that arereimbursed or are reimbursable from other applicable state or federalprograms.
8. No funds shall be paid if the operator of the facility has not compliedwith applicable statutes or regulations governing reporting, prevention,containment and cleanup of a discharge of oil.
9. No funds shall be paid if the owner or operator of an underground storagetank or the operator of an aboveground storage tank facility fails to reporta release of petroleum or a discharge of oil to the Board as required byapplicable statutes, laws or regulations.
10. No funds shall be paid from the Fund unless a reimbursement claim hasbeen filed with the Board within two years from the date the Board issues asite remediation closure letter for that release or July 1, 2000, whicheverdate is later.
11. The Fund balance shall be maintained at a level sufficient to ensure thatthe Fund can serve as a financial responsibility demonstration mechanism forthe owners and operators of underground storage tanks. Any disbursements madeby the Board pursuant to subdivision 2 of this subsection may be temporarilyreduced or delayed, in whole or in part, if such action is necessary, in thejudgment of the Board, to maintain the Fund balance.
B. The Board shall seek recovery of moneys expended from the Fund forcorrective action under this section where the owner or operator of anunderground storage tank has violated substantive environmental protectionrules and regulations pertaining to underground storage tanks which have beenpromulgated by the Board.
C. For costs incurred for corrective action as authorized in subdivision A 2e of this section, the Board shall seek recovery of moneys from the owner oroperator of an underground storage tank up to the minimum financialresponsibility requirement imposed on the owner or operator in subsection Bof § 62.1-44.34:12 if any, or seek recovery of such costs incurred from anyavailable federal government funds.
D. For costs incurred for corrective action taken resulting from a releasefrom underground storage tanks specified in subdivision A 2 f of thissection, the Board shall seek recovery of moneys from the owner or operatorup to the minimum financial responsibility requirement imposed on the owneror operator in subsection B of § 62.1-44.34:12 if any, or seek recovery ofsuch costs incurred from any available federal government funds.
E. The Board shall seek recovery of moneys expended from the Fund for costsincurred for corrective action as authorized in subdivision A 2 g of thissection or seek recovery of such costs incurred from any available federalgovernment funds. However, the Board shall not seek recovery of moneysexpended from the Fund for costs of corrective action in excess of $500 fromthe owner or operator of an underground tank exempted in subdivisions 1 and 2of the definition of underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
F. The Board shall have the right of subrogation for moneys expended from theFund as compensation for personal injury, death or property damage againstany person who is liable for such injury, death or damage.
G. The Board shall promptly initiate an action to recover all costs andexpenses incurred by the Commonwealth for investigation, containment andcleanup of a discharge of oil or threat of discharge against any personliable for a discharge of oil as specified in Article 11 (§ 62.1-44.34:14 etseq.) of Chapter 3.1 of this title; however, the Board shall seek recoveryfrom an operator of expenditures from the Fund only in the amount by whichsuch expenditures exceed the amount authorized to be disbursed to theoperator under subdivisions A 2 through A 8 of this section.
(1987, c. 677; 1989, cc. 430, 627; 1990, cc. 580, 581, 582, 917; 1992, cc.456, 819; 1993, cc. 20, 375; 1994, cc. 196, 535; 1996, cc. 737, 979; 1998, c.87; 2004, c. 485.)
§ 62.1-44.34:11. Virginia Petroleum Storage Tank Fund.
A. The Virginia Petroleum Storage Tank Fund is hereby established as anonlapsing revolving fund to be used by the Board for (i) administering thestate regulatory programs authorized by Articles 9, 10 and 11 (§ 62.1-44.34:8et seq.) of this chapter, (ii) demonstrating financial responsibility, and(iii) other purposes as provided for by applicable provisions of state andfederal law. All expenses, costs, civil penalties, charges and judgmentsrecovered by or on behalf of the Board pursuant to Articles 9, 10 and 11 ofthis chapter, and all moneys received as reimbursement in accordance withapplicable provisions of federal law and all fees collected pursuant to §§62.1-44.34:19.1 and 62.1-44.34:21, shall be deposited into the Fund. Interestearned on the Fund shall be credited to the Fund. No moneys shall be creditedto the balance in the Fund until they have been received by the Fund. TheFund shall be established on the books of the Comptroller and any fundsremaining in such Fund at the end of the biennium shall not revert to thegeneral fund but shall remain in the Fund.
The Fund shall be administered by the Board consistent with the provisions ofSubtitle I of the federal Solid Waste Disposal Act (P.L. 98-616, § 9001 etseq.) and any approved state underground storage tank program and inaccordance with the following provisions:
1. The Fund shall be maintained in a separate account. An accounting ofmoneys received and disbursed shall be kept, and furnished upon request tothe Governor or the General Assembly.
2. Disbursements from the Fund may be made only for the following purposes:
a. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person, in taking corrective action for any release of petroleuminto the environment from an underground storage tank which are in excess ofthe per occurrence financial responsibility requirement imposed in subsectionB of § 62.1-44.34:12, up to $1 million.
b. Reasonable and necessary per occurrence costs incurred for releasesreported after December 22, 1989, by the owner or operator who is theresponsible person for compensating third parties, including payment ofjudgments for bodily injury and property damage caused by the release ofpetroleum into the environment from an underground storage tank, which are inexcess of the per occurrence financial responsibility requirement imposed bysubsection B of § 62.1-44.34:12, up to $1 million. The reasonableness andnecessity of costs shall be determined based upon documented or actualdamage, loss in value, and other relevant factors. Disbursements for thirdparty claims shall be subordinate to disbursements for the corrective actioncosts in subdivision A 2 a of this section. Compensation for bodily injuryand property damage shall be paid only in accordance with final court ordersin cases which have been tried to final judgment no longer (i) subject toappeal, (ii) in accordance with final arbitration awards not subject toappeal, or (iii) where the Board approved the settlement of claim between theowner or operator and the third-party prior to execution by the parties.
c. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities do not exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than 25,000 gallons, per occurrence costs in excess of $2,500up to $1 million; (ii) for an operator of a facility with a storage capacityfrom 25,000 gallons to 100,000 gallons, per occurrence costs in excess of$5,000 up to $1 million; (iii) for an operator of a facility with a storagecapacity from 100,000 gallons to four million gallons, per occurrence costsin excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iv) for an operator of a facility with a storage capacitygreater than four million gallons, per occurrence costs in excess of $200,000up to $1 million. For purposes of this subdivision (2 c), the per occurrencefinancial responsibility requirements for an operator shall be based on thetotal storage capacity for the facility from which the discharge occurs.
d. Reasonable and necessary per occurrence costs incurred by an operatorwhose net annual profits from all facilities exceed $10 million forcontainment and cleanup of a release from a facility of a product subject to§ 62.1-44.34:13 as follows: (i) for an operator of a facility with a storagecapacity less than four million gallons, per occurrence costs in excess of$200,000 up to $1 million; (ii) for an operator of a facility with a storagecapacity from four million gallons to 20 million gallons, per occurrencecosts in excess of $.05 per gallon of aboveground storage capacity up to $1million; and (iii) an operator of a facility with a storage capacity greaterthan 20 million gallons shall have no access to the Fund. For purposes ofthis subdivision, the per occurrence financial responsibility requirementsfor an operator shall be based on the total storage capacity for allfacilities located within the Commonwealth.
e. Costs incurred by the Board in taking immediate corrective action tocontain or mitigate the effects of any release of petroleum into theenvironment from an underground storage tank or from underground storagetanks exempted in subdivisions 1 and 2 of the definition of undergroundstorage tank in § 62.1-44.34:10, if such action is necessary, in the judgmentof the Board, to protect human health and the environment.
f. Costs of corrective action up to $1 million for any release of petroleuminto the environment from underground storage tanks or from undergroundstorage tanks exempted in subdivisions 1 and 2 of the definition ofunderground storage tank in § 62.1-44.34:10 (i) whose owner or operatorcannot be determined by the Board within 90 days; or (ii) whose owner oroperator is incapable, in the judgment of the Board, of carrying out suchcorrective action properly.
g. Costs of corrective action incurred by the Board for any release ofpetroleum into the environment from underground storage tanks which areotherwise specifically listed in exemptions 1 through 9 of the definition ofan underground storage tank in § 62.1-44.34:10.
h. Reasonable and necessary per occurrence costs of corrective actionincurred for releases reported after December 22, 1989, by the owner oroperator in excess of $500 up to $1 million for any release of petroleum intothe environment from an underground storage tank exempted in subdivisions 1and 2 of the definition of an underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
i. The "cost share" of corrective action with respect to any release ofpetroleum into the environment from underground storage tanks undertakenunder a cooperative agreement with the Administrator of the United StatesEnvironmental Protection Agency, as determined by the Administrator of theUnited States Environmental Protection Agency in accordance with theprovisions of § 9003 (h) (7) (B) of the United States Public Law 98-616 (asamended in 1986 by United States Public Law 99-662).
j. Administrative costs incurred by the Board in carrying out the provisionsof regulatory programs authorized by Articles 9, 10, and 11 (§ 62.1-44.34:8et seq.) of this chapter.
k. All costs and expenses, including but not limited to personnel,administrative, and equipment costs and expenses, directly incurred by theBoard or by any other state agency acting at the direction of the Board, inand for the abatement, containment, removal and disposal of oil pursuant toArticle 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
l. Procurement, maintenance and replenishment of materials, equipment andsupplies, in such quantities and at such locations as the Board may deemnecessary, for the abatement, containment, removal and disposal of oilpursuant to Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of this title.
m. Costs and expenses, incurred by the Board or by any other state agency,acting at the direction of the Board, for the protection, cleanup andrehabilitation of waterfowl, wildlife, shellfish beds and other naturalresources, damaged or threatened by the discharge of oil, owned by theCommonwealth or held in trust by the Commonwealth for the benefit of itscitizens.
n. Refund of cash deposits held in escrow pursuant to Article 11 (§62.1-44.34:14 et seq.) of Chapter 3.1 of this title and reasonable interestthereon, and refunds of fees collected pursuant to § 62.1-44.34:21 asauthorized by this chapter.
o. Administrative costs incurred by the Department of Motor Vehicles in thecollection of fees specified in § 62.1-44.34:13.
p. Reasonable and necessary costs incurred by the Virginia Department ofTransportation in taking corrective action on property acquired fortransportation purposes. If the costs of taking corrective action arerecovered, in whole or in part, from any responsible party, the recoveryshall be deposited to the Fund.
q. Reasonable and necessary per occurrence costs for releases reported afterDecember 22, 1989, in taking corrective action for any release of petroleuminto the environment from an underground storage tank, which are in excess of$5,000 up to $1 million, by any person who, without participating in themanagement of an underground storage tank or being otherwise engaged inpetroleum production, refining, and marketing, holds indicia of ownershipprimarily to protect the holder's security interest in the tank.
3. No funds shall be paid for reimbursement of costs incurred for correctiveaction taken prior to December 22, 1989, by an owner or operator of anunderground storage tank, or an owner of an underground storage tank exemptedin subdivisions 1 and 2 of the definition of an underground storage tank in §62.1-44.34:10, or an owner of an aboveground storage tank with a capacity of5,000 gallons or less used for storing heating oil for consumption on thepremises where stored.
4. No funds shall be paid for reimbursement of costs incurred prior toJanuary 1, 1992, by an operator of a facility for containment and cleanup ofa release from a facility of a product subject to § 62.1-44.34:13.
5. No funds shall be paid for reimbursement of moneys expended for payment ofinterest or other finance charges on loans which were used for correctiveaction or containment and cleanup of a release by a person in subdivisions A3 or A 4 of this section, except for an owner or operator which is exemptfrom taxation under § 501 (c) (3) of the Internal Revenue Code, providedthat: (i) the loan moneys have been paid for corrective action that waspre-approved by the Board, (ii) any and all disbursements received from theFund shall be paid against the loan or for interest and points, and (iii) thepayment of interest and points under this subdivision shall be limited tofive years from the date the release is reported to the Board. The Board mayextend the period for payment of interest and points if, in the judgment ofthe Board, such action is necessary. The restrictions imposed in clauses (i),(ii) and (iii) shall not apply to loans made prior to June 1, 1992, to anowner or operator exempt from taxation under § 501 (c) (3) of the InternalRevenue Code.
6. No funds shall be paid for penalties, charges or fines imposed pursuant toany applicable local, state or federal law.
7. No funds shall be paid for containment and cleanup costs that arereimbursed or are reimbursable from other applicable state or federalprograms.
8. No funds shall be paid if the operator of the facility has not compliedwith applicable statutes or regulations governing reporting, prevention,containment and cleanup of a discharge of oil.
9. No funds shall be paid if the owner or operator of an underground storagetank or the operator of an aboveground storage tank facility fails to reporta release of petroleum or a discharge of oil to the Board as required byapplicable statutes, laws or regulations.
10. No funds shall be paid from the Fund unless a reimbursement claim hasbeen filed with the Board within two years from the date the Board issues asite remediation closure letter for that release or July 1, 2000, whicheverdate is later.
11. The Fund balance shall be maintained at a level sufficient to ensure thatthe Fund can serve as a financial responsibility demonstration mechanism forthe owners and operators of underground storage tanks. Any disbursements madeby the Board pursuant to subdivision 2 of this subsection may be temporarilyreduced or delayed, in whole or in part, if such action is necessary, in thejudgment of the Board, to maintain the Fund balance.
B. The Board shall seek recovery of moneys expended from the Fund forcorrective action under this section where the owner or operator of anunderground storage tank has violated substantive environmental protectionrules and regulations pertaining to underground storage tanks which have beenpromulgated by the Board.
C. For costs incurred for corrective action as authorized in subdivision A 2e of this section, the Board shall seek recovery of moneys from the owner oroperator of an underground storage tank up to the minimum financialresponsibility requirement imposed on the owner or operator in subsection Bof § 62.1-44.34:12 if any, or seek recovery of such costs incurred from anyavailable federal government funds.
D. For costs incurred for corrective action taken resulting from a releasefrom underground storage tanks specified in subdivision A 2 f of thissection, the Board shall seek recovery of moneys from the owner or operatorup to the minimum financial responsibility requirement imposed on the owneror operator in subsection B of § 62.1-44.34:12 if any, or seek recovery ofsuch costs incurred from any available federal government funds.
E. The Board shall seek recovery of moneys expended from the Fund for costsincurred for corrective action as authorized in subdivision A 2 g of thissection or seek recovery of such costs incurred from any available federalgovernment funds. However, the Board shall not seek recovery of moneysexpended from the Fund for costs of corrective action in excess of $500 fromthe owner or operator of an underground tank exempted in subdivisions 1 and 2of the definition of underground storage tank in § 62.1-44.34:10 andaboveground storage tanks with a capacity of 5,000 gallons or less used forstoring heating oil for consumption on the premises where stored.
F. The Board shall have the right of subrogation for moneys expended from theFund as compensation for personal injury, death or property damage againstany person who is liable for such injury, death or damage.
G. The Board shall promptly initiate an action to recover all costs andexpenses incurred by the Commonwealth for investigation, containment andcleanup of a discharge of oil or threat of discharge against any personliable for a discharge of oil as specified in Article 11 (§ 62.1-44.34:14 etseq.) of Chapter 3.1 of this title; however, the Board shall seek recoveryfrom an operator of expenditures from the Fund only in the amount by whichsuch expenditures exceed the amount authorized to be disbursed to theoperator under subdivisions A 2 through A 8 of this section.
(1987, c. 677; 1989, cc. 430, 627; 1990, cc. 580, 581, 582, 917; 1992, cc.456, 819; 1993, cc. 20, 375; 1994, cc. 196, 535; 1996, cc. 737, 979; 1998, c.87; 2004, c. 485.)
