Current through Register Vol. 50, No. 9, September 20, 2024
The administrative authority was authorized by R.S.
30:2194-2195.10 to receive and administer the motor fuels underground storage
tank trust fund (MFUSTTF) to provide financial responsibility for owners and/or
operators of underground motor fuel storage tanks. Under the conditions
described in this Section, an owner and/or operator who is eligible for
participation in the MFUSTTF may use this mechanism to fulfill the financial
responsibility requirements for eligible USTs. To use the MFUSTTF as a
mechanism for meeting the requirements of LAC 33:XI.1107, the owner and/or
operator shall be an eligible participant as defined in
Subsection A of this Section.
A.
Definitions. The following terms shall have the meanings ascribed to them as
used in this Section.
Advisory Board- the Motor Fuels Underground
Storage Tank Trust Fund Advisory Board (established under
R.S.
30:2195.8), whose eight members consist of
the following:
a. the Secretary of the
Department of Environmental Quality or his designee;
b. four members appointed by the president of
the Louisiana Oil Marketers and Convenience Store Association;
c. one member appointed by the Mid-Continent
Oil and Gas Association; and
d. two
members appointed by the secretary who represent the response action contractor
community.
Eligible Participant-any owner of an
operating or newly-installed underground storage tank who has registered the
tank with the department prior to the date of a release, has paid the annual
tank registration fees along with any late payment fees, has met the financial
responsibility requirements imposed by Subsection B of this Section, and, if
applicable, has met the noncompliance financial responsibility amounts provided
in
R.S.
30:2195.10.
Motor Fuels Underground Storage Tank-a UST
used only to contain an accumulation of motor fuels.
Substantial Compliance-Repealed.
Third-Party Claim-any civil action brought
or asserted by any person against the secretary of the department and any owner
of any underground storage tank for damages to person or property when damages
are the direct result of the contamination of groundwater and/or subsurface
soils by motor fuels released during operation of storage tanks that were being
operated in substantial compliance as provided for in this Section. The term
damages to person shall be limited to damages arising directly out of the
ingestion or inhalation of petroleum constituents from water well contamination
or inhalation of petroleum constituents seeping into homes or buildings, and
the term damages to property shall be limited to the unreimbursed costs of a
response action and the amount by which property is proven to be permanently
devalued as a result of the release.
B. Financial Responsibility Requirements for
MFUSTTF Participants
1. Unless revised by the
administrative authority in accordance with
R.S.
30:2195.9(A)(5), MFUSTTF
participants taking response actions shall pay the amounts required by
R.S.
30:2195.9(A)(1)-(4).
2. The advisory board shall review the
financial responsibility requirements on an annual basis and may recommend
adjustments to the requirements to the secretary. The secretary shall determine
and set the financial responsibility requirements annually [as provided in
R.S.
30:2195.9(A)(5)].
3. Substitution of a Departmental Lien
a. A lien filed by the department with the
same ranking and privilege as that authorized by
R.S.
30:2195(F)(2) may be
substituted for the financial responsibility requirement of this Section, but
in no case shall the lien be substituted on behalf of an owner and/or operator
who continues to operate the system. The use of the funds in the MFUSTTF during
any fiscal year on a site for which the lien, as authorized by this Section,
has been used to substitute for the financial responsibility amount shall not
exceed 20 percent of the amount collected in the previous fiscal year. The
administrative authority is authorized to exceed the 20 percent limitation
contained in this Paragraph upon recommendation by the advisory
board.
b. Upon recommendation by
the advisory board to exceed the 20 percent limitation as provided in
Subparagraph B. 3.a of this Section, the administrative authority shall provide
written notification to the environmental legislative oversight committees
listing the project name, the project location, and the amount of the project
that exceeds the 20 percent limitation.
C. Conditions for Use of the MFUSTTF. Funds
in the MFUSTTF shall be used under the following conditions.
1. Whenever the administrative authority
determines that an incidence of surface water, groundwater or soil
contamination resulting from the storage of motor fuels may pose a threat to
the environment or to public health, safety, or welfare, and the owner or
operator of the UST system has been found to be an
eligible
participant (as defined in Subsection A of this Section), the
department shall obligate monies available in the MFUSTTF to provide for the
following response actions:
a. investigation
and assessment of sites shown to be contaminated by a release into the surface
water, groundwater or soils from an underground motor fuel storage
tank;
b. interim replacement and
permanent restoration of potable water supply where it has been demonstrated
that the supply was contaminated by a leak from an underground motor fuel
storage tank; and
c. rehabilitation
and remediation of sites contaminated by a leak into the surface water,
groundwater or soils from an underground motor fuel storage tank, which may
consist of cleanup of affected soil, groundwater, and inland surface waters,
using cost-effective methods that are technologically feasible and reliable,
while ensuring adequate protection of the public health, safety and welfare,
and minimizing environmental damage, in accordance with the site selection and
cleanup criteria established by the department.
i. Nothing herein shall be construed to
authorize or require the department to obligate funds for payment of costs that
may be associated with, but are not integral to, site rehabilitation, such as
the cost of retrofitting or purchases of equipment needed in assisting cleanup
operations.
ii. The monies expended
from the MFUSTTF for any of the above approved costs shall be spent only up to
such sum as that which is necessary to satisfy petroleum or motor fuel UST
financial responsibility requirements specified in LAC 33:XI.1107 or
$1,500,000, whichever is greater. This amount shall include any third-party
claim arising from the release of motor fuels from a motor fuel underground
storage tank.
iii. The monies
expended from the MFUSTTF for any of the above approved costs shall be spent
only up to such sum as that which is necessary to satisfy petroleum UST
financial responsibility requirements specified in LAC 33:XI.1107.
2. Whenever the
department has incurred costs for taking response actions with respect to the
release of motor fuels from a UST system, or the department has expended funds
from the MFUSTTF for response costs or third-party liability claims, the owner
or operator of the underground motor fuel storage tank shall be liable to the
department for such costs only if the owner or operator was not an eligible
participant on the date of discharge of the motor fuels that necessitated the
cleanup. Otherwise, liability is limited to the provisions contained in LAC
33:XI.1121.B. Nothing contained herein shall be construed as authorizing the
expenditure from the MFUSTTF on behalf of any owner or operator of a UST system
who is not an eligible participant at the time of the release for any
third-party liability.
3. If the
administrative authority has expended funds on behalf of an owner or operator
who was not an eligible participant, and the MFUSTTF is entitled to
reimbursement of those funds so expended, the administrative authority shall
have the authority to, and is obligated to, use any and all administrative and
judicial remedies that might be necessary for recovery of the expended funds
plus legal interest from the date of payment by the administrative authority
and all costs associated with the recovery of the funds.
4. The MFUSTTF may be used for reimbursement
of any costs associated with the review of applications for reimbursement from
the MFUSTTF, legal fees associated with the collection of costs from parties
not in substantial compliance, audits of the MFUSTTF, and accounting and
reporting regarding the uses of the MFUSTTF.
5. The MFUSTTF may be used to make payments
to a third party who brings a third-party claim against any owner or operator
of an underground motor fuel storage tank because of damages caused by a
release into the surface water, groundwater, or soils and who obtains a final
judgment in said action enforceable in Louisiana against the owner or operator
only if it has been satisfactorily demonstrated that the owner or operator was
an eligible participant as defined in LAC 33:XI.1121.A when
the release occurred. The indemnification limit of the MFUSTTF with respect to
satisfaction of third-party claims shall be that which is necessary to satisfy
the requirements of LAC 33:XI.Chapter 11.
D. Procedures for Disbursements from the
MFUSTTF
1. Monies held in the MFUSTTF are
disbursed by the administrative authority in the following manner.
a. Payments are made in reasonable amounts to
eligible participants or for reimbursement of payment to approved response
action contractors for response actions when authorized by the administrative
authority only after the owner or operator of the underground motor fuel
storage tank or those acting for the owner or operator have paid the amount
required by LAC 33:XI.1121.B.
b.
Cost-effective procedures, as established by the administrative authority,
shall be implemented by eligible participants using MFUSTTF monies.
2. Payments are made to third
parties who bring suit against the administrative authority in his or her
official capacity as representative of the MFUSTTF and the owner or operator of
an underground motor fuel storage tank who is an eligible
participant as defined in Subsection A of this Section and such third
party obtains a final judgment in that action enforceable in Louisiana. The
owner or operator stated above shall pay the amount required by Subsection B of
this Section toward the satisfaction of said judgment, and after that payment
has been made, the MFUSTTF will pay the remainder of said judgment. The
attorney general of the state of Louisiana is responsible for appearing in said
suit for and on behalf of the administrative authority as representative of the
MFUSTTF. The administrative authority as representative of the MFUSTTF is a
necessary party in any suit brought by any third party that would allow that
third party to collect from the MFUSTTF, and the administrative authority shall
be made a party to the initial proceedings. Payment shall be made to the
third-party claimant only if the judgment is against an owner or operator who
was an eligible participant on the date that the incident that gave rise to the
claim occurred. The costs to the attorney general of defending these suits, or
to those assistants that the administrative authority employs or the attorney
general appoints to assist, shall be recovered from the MFUSTTF. If the MFUSTTF
is insufficient to make payments when the claims are filed, such claims shall
be paid in the order of filing when monies are paid into the MFUSTTF. Neither
the amount of money in the MFUSTTF, the method of collecting it, nor any of the
particulars involved in setting up the MFUSTTF shall be admissible as evidence
in any trial in which suit is brought when the judgment rendered could affect
the MFUSTTF.
3. For sites with more
than one eligible release and/or with multiple owners and/or operators who are
eligible participants, but who cannot agree on the selection of a single
qualified response action contractor (RAC) for the purpose of complying with
LAC 33:XI.709, 711, and 715, or who have failed to implement the requirements
of LAC 33:XI.709, 711, and 715 within the time required by the administrative
authority, the administrative authority shall select a RAC to carry out the
requirements of LAC 33:XI.709, 711, and 715 or order the respective owners
and/or operators to implement the requirements of LAC 33:XI.709, 711, and 715
without the assistance of MFUSTTF monies. In choosing a RAC, the administrative
authority shall solicit notices of interest in the project from all approved
RACs except those currently under contract to any of the multiple owners and/or
operators of the site and then randomly select a single RAC from all RACs that
have expressed an interest in the project. The RAC selected shall not be one
currently under contract to any one of the multiple owners and/or operators of
the site. Upon selection by the administrative authority of a single RAC, the
multiple owners and/or operators shall grant property access to the RAC to
comply with the requirements of LAC 33:XI.709, 711, and 715. Failure to grant
property access or to impede the implementation of the requirements of LAC
33:XI.709, 711, and 715 shall result in the disallowance of reimbursement
monies from the MFUSTTF. The multiple owners and/or operators shall sign and
submit any and all documentation required for reimbursement from the MFUSTTF
for any work that has been previously completed in accordance with LAC
33:XI.709, 711, and 715. Once the reimbursement documentation has been approved
and accepted by the MFUSTTF, then all reasonable costs shall be reimbursed
directly to the RAC.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
30:2001 et seq. and specifically
2195-2195.10.
