Code of Massachusetts Regulations
503 CMR - UNDERGROUND STORAGE TANK PETROLEUM PRODUCT CLEANUP FUND ADMINISTRATIVE REVIEW BOARD
Title 503 CMR 2.00 - Underground Storage Tank Petroleum Product Cleanup Fund Regulations Implementing M.g.l. C. 21j
Section 2.12 - Bodily Injury and Property Damage to Third Parties: Costs, Expenses and Obligations Allowable for Reimbursement

Universal Citation: 503 MA Code of Regs 503.2

Current through Register 1531, September 27, 2024

(1)503 CMR 2.12 governs payments to reimburse Owners or Operators for Third Party Claims.

(2) The Owner or Operator shall send the Board a copy of any Final Judgment and shall file an Application for Reimbursement within 180 days of the legal entry of the Final Judgment.

(3) To be eligible for Reimbursement, a Final Judgment must be:

(a) Against an Eligible Claimant and arising from an Eligible Release;

(b) In excess of the Deductible Limit;

(c) Unreimbursed by any other source of payment, including insurance. If the Claimant receives Reimbursement from any other source for costs, expenses or obligations reimbursed by the Fund, the Claimant must return to the Fund the amount reimbursed by the other source;

(d) connected with costs incurred or damages sustained by the third party after April 1, 1991;

(e) reasonable and appropriate as described in 503 CMR 2.11; and

(f) unrelated to any material business relationship between the third party and the Claimant.

(4) Final Judgments based on the following specific types of damages are eligible for Reimbursement:

(a) Temporary and/or permanent relocation costs;

(b) Provision for temporary and/or permanent replacement or alternative potable drinking water supply if the existing water supply has been contaminated by Petroleum Products;

(c) Damages related to a cost-effective and necessary method of assessment, cleanup and/or disposal of contaminated soils and debris, consistent with 310 CMR 40.0000: Massachusetts Contingency Plan;

(d) Response Action necessary to mitigate the effects of Property Damage;

(e) Medical expenses;

(f) Loss of wages or business income; and/or

(g) Damages to Natural Resources not to exceed $500,000 provided that there was a full adversarial trial.

(5) Other Requirements related to a Final Judgment.

(a) If the Final Judgment against an Eligible Claimant results from a full adversarial trial, the Board shall regard the existence of the Final Judgment as establishing that the Bodily Injury, Property Damage, or Damage to Natural Resources was proximately caused by an Eligible Release if the Eligible Claimant is otherwise in compliance with 503 CMR 2.00.

(b) If the Final Judgment against an Eligible Claimant results from less than a full adversarial trial, then the Board may require further information or verification regarding the relationship of the Bodily Injury, Property Damage, or Damage to Natural Resources to an Eligible Release, and may make an independent determination whether the injury or damages was proximately caused by an Eligible Release. If any settlement or Judgment subject to 503 CMR 2.12 does not include findings of fact or the like, then the Board may require the Claimant to submit a letter from an attorney or other professional (acceptable to the Board) on behalf of the Claimant, setting forth a sufficient basis on which to enable the Board to determine that the Bodily Injury, Property Damage or Damage to Natural Resources was proximately caused by an Eligible Release. The letter and any statements made in connection with the letter shall be deemed a document in connection with compromise of a dispute.

1. Any obligation for which the Claimant can be held liable under Workers Compensation, unemployment compensation, disability benefits, or similar law protecting employees of the Claimant.

2. Any damages to an employee or independent contractor of the Claimant connected to the employment or contracting relationship.

3. Any damages to any business associate of the Claimant (or to a related enterprise), including without limitation, a partner, shareholder (except one owning or controlling less than 5% of a publicly traded company), or joint venture of the Claimant or of a related enterprise or by any business entity or individual (or the Owners, agents or employees thereof) that owns, leases, operates, or manages the Site except to the extent arising from a business relationship with the Claimant that is unrelated or incidental to the Claimant's relationship to the Site.

4. Any liability assumed by the Claimant under any contract or agreement if the liability would not exist without a contract or agreement.

5. Compensation to the third-party for expenses related to one of the specific types of costs designated in 503 CMR 2.12(4).

a. Pain and suffering;

b. Loss of consortium;

c. Fear of future harm or disease;

d. Medical monitoring in the absence of present harm or disease;

e. Punitive damages, civil penalties, or criminal fines;

f. Damages in excess of the actual and verifiable costs incurred by the third-party for one of the types of damage listed in 503 CMR 2.12;

g. Emotional distress;

h. Diminution of property value;

i. Attorneys' fees, expert witness fees and other similar costs associated with litigation or court-ordered arbitration; or

j. Any off-site rents for the placement and/or operation of remediation equipment or recovery wells,

(d) Eligible Reimbursements for Final Judgments shall be governed by the following:

1. Appendix 3 contains a Reimbursement Fee Schedule that sets forth charges representing the maximum amounts the Board will regard as reasonable and appropriate for certain costs.

2. For activities not covered by the Reimbursement Fee Schedule in Appendix 3, reasonable and appropriate amounts for the different types of damages shall be determined by the Board.

(6) Other requirements related to claims arising from civil court action.

(a) Only one Claim may be filed for each Final Judgment except as set out below. If a Final Judgment requires payment over time, a Claimant may file Claims and the Board may schedule Reimbursements according to the Final Judgment. If the Final Judgment benefits multiple persons, the Board may treat each person independently or as a group as the Board determines.

(b) Any Claim arising from a Final Judgment shall be filed as set forth in Appendix 6 or electronically as prescribed by the Board, and shall include a copy of the Final Judgment, including information to satisfy the requirements of 503 CMR 2.12.

(c) The application shall list and be accompanied by documentation of amounts paid by the Claimant to the third party, and shall specify the purpose of the payments.

(d) Upon request, the Claimant shall furnish DOR with any additional information DOR deems necessary to process the Claim.

(e) Within 45 days of presentation to the Board of a Claim for Reimbursement or, if later, within 45 days of presentation to the Board of any supplemental information requested by the Board or DOR, the Board shall notify the Claimant in writing of its determination on the Claim for Reimbursement. For the purposes of administering the program, a Claim shall be considered complete upon its receipt, review by DOR, and presentation to the Board.

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