(1) DCERF
Obligations
(a) The Commissioner shall
obligate money from the DCERF based on the following procedures:
1. Available monies in the DCERF shall be
obligated for response activities based on the priority ranking system and
statutory limitations. For sites that have equivalent ranking status, funds
from the DCERF will be obligated according to the chronological order in which
the complete application for entry into the DCERP was received.
2. Available monies in the DCERF shall be
specifically designated for response activities as such activities are approved
and authorized for implementation by the Commissioner.
(b) The Commissioner will make payments from
the DCERF when:
1. The applicant has
petitioned the Commissioner for entry into the DCERP, has complied with all
requirements for entry into the DCERP, and has been accepted into the DCERP by
the Commissioner.
2. A
reimbursement request is received, according to a schedule and format
determined by the Commissioner, for response costs associated with a release of
drycleaning solvent for which the Commissioner has authorized the work related
to such response costs, subject to a determination by the Commissioner that the
costs are reasonable and consistent with the related work plan and cost
proposal authorized by the Commissioner.
(c) Clean-Up Before the Designation of DCERF
Monies
1. In the event that an applicant, with
Commissioner approval, undertakes actions that are reimbursable under the Act
after entry into the DCERP but before DCERF money is designated for
investigation or remediation of the site under the priority ranking system, the
applicant may perform approved actions in accordance with this chapter. Funds
from the DCERF shall be obligated for and reimbursed to the applicant for
eligible expenses when funds become available pursuant to the priority ranking
system.
2. An applicant that
performs approved actions in accordance with this chapter shall be eligible for
reimbursement according to the law, this chapter, and guidance in effect at the
time the activities were performed. Applicants performing activities under this
subparagraph must meet all requirements for DCERF eligibility applicable at the
time the activities are performed to receive future reimbursement.
3. Only work plans and cost estimates
approved in writing by the Commissioner after October 15, 1997, are eligible
for reimbursement.
(d)
All claims against the DCERF are obligations of the DCERF and not of the state,
and any amounts to be paid under this rule are subject to the availability of
sufficient monies in the DCERF. The full faith and credit of the state shall
not in any way be pledged or considered to be available to guarantee payment
from such DCERF.
(2)
Scope of Fund Coverage
(a) The DCERF will
reimburse applicants accepted into the DCERP for the reasonable cost of
Commissioner-authorized inspection, investigation, and remediation, exclusive
of interest, at the applicants' sites. All costs consistent with cost estimates
approved by the Commissioner shall be considered reasonable costs.
(b) The following deductibles shall apply per
site for active drycleaning facilities, abandoned drycleaning facilities, and
in-state wholesale distribution facilities when an applicant accepted into the
DCERP requests reimbursement from the Commissioner:
1. The deductible shall be 10% per
reimbursement with a maximum deductible of $50,000.
2. An impacted third party's deductible is
the same as the facility for which DCERF coverage is sought.
3. If an applicant reenters facilities or
sites into the DCERP for any reason, the applicant is required to pay a new
deductible.
(3) Authorized Disbursements from the DCERF
(a) Whenever the Commissioner determines a
release has occurred at an eligible site, the Commissioner shall, subject to
the provisions of this chapter including site prioritization, disburse monies
available in the DCERF to provide for reimbursement of the reasonable cost of:
1. Commissioner-authorized inspection,
investigation, assessment, and cleanup of sites contaminated by a release of
drycleaning solvents, which may consist of clean-up of affected soils,
groundwater, sediment, surface water, air, or other environmental media using
cost-effective alternatives that are technically feasible and reasonable, and
that provide adequate protection of the public health, safety, and welfare and
minimize environmental damage.
2.
The interim replacement of and permanent restoration of potable water
supplies.
(b) Where the
Commissioner has determined that an immediate response to an eligible site was
necessary as a result of an imminent and substantial danger, the response may
be funded by either the DCERF or the Hazardous Waste Remedial Action Fund, as
defined in paragraph (1) of Rule
0400-15-01-.02, at the
Commissioner's discretion. Costs of any such response actions from the
Hazardous Waste Remedial Action Fund may be reimbursed from the DCERF with the
Commissioner's approval.
(c) The
costs for reasonable initial abatement and site stabilization activities are
DCERF eligible, up to $5,000 and subject to applicable deductibles, without
submission and prior Commissioner approval of a cost proposal. The costs must
be directly associated with containing or addressing a release of solvent or
material containing solvent. Normal operating practices, including but not
limited to the proper disposal of solvent or material containing solvent, are
not considered initial abatement or site stabilization activities.
(d) The costs for implementing an initial
facility inspection required by the Commissioner pursuant to paragraph (3) of
Rule 0400-15-03-.05 are eligible for
reimbursement, regardless of whether the facility inspection determines that
the site is eligible or ineligible for further reimbursement.
(e) Costs incurred by the Commissioner in the
administration of the Act and this chapter shall be charged to the
DCERF.
(f) The DCERF shall be
available to the Commissioner for expenditures for the purposes of providing
for the investigation, identification, and for the reasonable and safe cleanup,
including monitoring and maintenance of sites as provided in the Act.
(g) The Commissioner may enter into contracts
and use the DCERF for:
1. Hiring consultants
and personnel;
2. Purchasing,
leasing, or renting necessary equipment;
3. Conducting interim actions; and,
4. Other necessary expenses.
(4) DCERF Ineligible
Costs
(a) The Commissioner shall not
authorize distribution of monies from the DCERF that would result in a
diminution of the DCERF below a balance of $100,000 unless an emergency exists
at a facility or site that constitutes an imminent and substantial threat to
human health or the environment.
(b) The Commissioner shall not authorize
distribution of DCERF monies as specified in T.C.A. §
68-217-107(c).
(c) The Commissioner
shall not authorize distribution of DCERF monies for response actions not
undertaken in accordance with this chapter and guidance established by the
Commissioner.
(d) Monies held in
the DCERF shall not be used to reimburse costs incurred by owners or operators
of facilities in conducting repairs, retrofits, building or equipment
improvements, building renovations or remodels, or the implementation of
BMPs.
(e) The DCERF shall not be
obligated and shall not pay out any funds for any non-response type of damages,
losses, costs, or expenses of any kind, including but not limited to stigma
damages or diminution of value to real or personal property caused for any
reason, including but not limited to a release of solvents or any activities
approved under the Act or this chapter; the restoration or repair (other than
response actions) of any real and personal property for any reason, including
but not limited to damages resulting from the release of solvents or any
activities approved under the Act or this chapter, or injury or death caused
for any reason, including but not limited to a release of solvents or any
activities approved under the Act or this chapter. In addition, the DCERF shall
not be used for the landscaping of sites but shall only be used to restore
those portions of the site affected by DCERF-approved activities to a safe
condition. Finally, the DCERF shall not be obligated and shall not pay any
penalties or fines, or other punitive expenses levied or incurred for any
reason, including but not limited to a release of solvents or any activities
approved under the Act or this chapter.
(f) The DCERF shall not be obligated and
shall not pay out any funds for costs in which there was no prior written
Commissioner authorization or that were incurred prior to October 15,
1997.
(g) Monies held in the DCERF
shall not be used to reimburse owners or operators of facilities conducting
investigative or remedial activities under paragraph (12) of Rule
0400-15-03-.05.
(5) Maintaining DCERF Eligibility
All applicants must meet the following requirements to
maintain DCERF eligibility:
(a) The
owner or operator manages the facility in compliance with the Act and the
requirements of this chapter, including but not limited to applicable
BMPs.
(b) All required fees,
surcharges, penalties, and interest are paid and current.
(c) The following records are maintained
on-site or at a readily available alternative site and made available to the
Commissioner upon request:
1. Drycleaning
facilities:
(i) Documentation of solvent
purchases or transfers;
(ii) Waste
disposal manifests;
(iii)
Documentation of equipment maintenance, repairs, or retrofits, including
BMPs;
(iv) Documentation of all
site investigation and cleanup plans and expenses; and
2. In-state wholesale distribution
facilities:
(i) Documentation of solvent sales
or transfers; (ii) Waste disposal manifests;
(iii) Documentation of equipment maintenance,
repairs, or retrofits, including BMPs;
(iv) Documentation of all site investigation
and cleanup plans and expenses.
(d) Unless the Commissioner instructs
otherwise, all records required to be maintained by subparagraph (c) of this
paragraph shall be retained for five years after:
1. The Commissioner issues a letter that
states all necessary investigation and remedial work has been completed or that
no investigation and remediation is necessary with respect to a site (a
Response Complete Summary Letter); or
2. Ownership and all records pertaining
thereto are transferred to a new owner.
(e) After being accepted into the DCERP, the
applicant shall promptly notify the Commissioner of any solvent releases that
may impact the investigation or remediation of the site.
(6) Requirements for DCERF Reimbursement of
Response Costs An applicant who is DCERF eligible is entitled to reimbursement
of response costs for approved investigation and cleanup costs from the DCERF
subject to the following provisions:
(a)
Applicants must:
1. Perform initial response
actions in accordance with paragraphs (5) and (7) of Rule 0400-15-03-.05
including initial abatement measures and free product removal necessary to
properly stabilize a site and to prevent significant continuing damage to the
environment or risk to human health;
2. Select a person from the Department's DCAC
list and notify the Commissioner in writing of such a selection within 30 days
or other time specified by the Commissioner; and
3. Within 30 days of selection, establish a
contractual agreement with the DCAC and provide a letter signed by both parties
confirming that a contractual relationship exists for environmental response
actions.
(b) Following
completion of necessary site stabilization actions, the cost estimates for
subsequent inspections, investigations, and corrective actions must be approved
by the Commissioner in accordance with Rule
0400-15-03-.05, and the work
performed by DCACs must be approved in accordance with the requirements of Rule
0400-15-03-.09. Response
actions, other than those identified in subparagraph (a) of this paragraph,
performed prior to the approval of the cost estimates shall not be eligible for
reimbursement from the DCERF, unless they were undertaken at the specific
direction of the DCERP.
(c) Upon
review of cost estimates for DCERF eligible activities, the Commissioner may:
1. Accept the cost proposal and authorize
work to be initiated; or
2. Request
a modification to or clarification of the cost proposal if projected costs are
determined not to be reasonable.
(d) In addition to the requirements of
subparagraph (b) of this paragraph, the Commissioner may request, and, upon
that request, the applicant shall submit an estimate of the total cost of
remediation for the site, which will be used by the Commissioner in projecting
future funding requirements for the DCERF. The estimate shall be updated by the
applicant as more complete information regarding the site becomes
available.
(e) Upon approval of a
cost estimate by the Commissioner, sufficient monies will be obligated from the
DCERF for completion of the approved phase of work along with authorization for
the initiation of the proposed action. Payments from the DCERF shall be subject
to the availability of funds in the DCERF at the time of approval by the
Commissioner.
(f) The cost of
completing any task in an approved work plan that exceeds the amount in the
approved cost estimate may be denied by the Commissioner unless:
1. An amended written cost estimate is
submitted and approved before the initially approved cost estimate is exceeded;
or
2. Informal written approval is
given by the Commissioner, and within two working days, a written amended cost
estimate consistent with such informal written approval is submitted to the
Commissioner.
(7) Reimbursement Requests
(a) Reimbursement requests for response costs
shall be submitted in a format established by the Commissioner and shall, at a
minimum, include an itemization of all labor charges (individual name, DCERP
personnel category, date, rate, and number of hours worked), analytical
charges, equipment charges, and other categories identified by the
Commissioner, or that the applicant may wish to provide.
(b) The reimbursement request shall contain
the following statement, which shall be signed by the applicant and the project
manager of the DCAC:
"I certify to the best of my knowledge and belief: that a
release of drycleaning solvent has occurred from the operation of the subject
active or abandoned drycleaning facility or in-state wholesale distribution
facility; that the costs presented herein represent actual costs incurred in
the performance of response actions at this site during the period of time
indicated on this reimbursement request; and that no charges are presented as
part of this reimbursement request that do not directly relate to the
performance of response actions related to the release of solvent at this site.
I understand that any misrepresentation or omission regarding the reimbursement
request may be considered willful noncompliance with Chapter 0400-15-03 and may
serve as a sufficient basis for the Commissioner's denial of the reimbursement
request and future access to DCERF reimbursement."
(c) If a site has previously been the subject
of a reimbursement request for DCERF eligibility that was denied, and where the
reasons for denial have been properly cured or are subject to cure as set forth
in this chapter, the burden shall be on the applicant to demonstrate by
substantial and material evidence in the reimbursement request that the request
does not include actions or expenses for releases that were the subject of
reimbursement requests that have been previously denied.
(d) Reimbursement requests for the
implementation of response actions may be submitted 60 days following
initiation of work to implement the work plan and at 60-day intervals
thereafter until completion of the authorized activities. For work phases that
will be completed within three months or less, the Commissioner recommends that
a reimbursement request be submitted following the completion of the
pre-approved work. Interim billings for phases of work that will not be
completed in three months or less shall include the expenses for a specified
period of time (e.g., January-March) and shall, to the extent practicable, not
have overlapping dates with prior or subsequent interim billings. The
Commissioner may request a status report to be submitted with each
reimbursement request. Upon request, the Commissioner may approve interim
payments at more frequent intervals.
(e) All payments shall be subject to review
for compliance with this chapter by the Commissioner. Should a site inspection
or other information reveal a discrepancy between work performed and the work
addressed by a reimbursement request, the Commissioner may deny payment or may
require the DCERF to be reimbursed for money already disbursed. Denied payments
may be appealed to the Commissioner; however, the appeal must be filed within
30 days of the applicant's receipt of the Commissioner's certified letter of
the denial.
(f) Notwithstanding the
provision of subparagraph (d) of this paragraph, to be eligible for payment
from the DCERF, a reimbursement request must be received by the DCERP within
one year from the date expenses were incurred regardless of the duration of the
work phase. For example: the personnel expenses of a geologist performing work
activities, related to a specific site, on May 10 of the prior year would not
be reimbursable by the DCERP if the reimbursement request was received on or
after May 11 of the current year.
(g) If the DCERF reimburses a party for
response costs under this chapter for which the owner or operator of a facility
has insurance coverage, the DCERF is subrogated to the rights of the owner or
operator with respect to that insurance coverage to the extent of the
reimbursement. Acceptance of reimbursement under this subparagraph constitutes
an assignment by the party with respect to any insurance coverage applicable to
the costs that are reimbursed. If the owner or operator of a facility has
insurance coverage that may cover response costs, the owner or operator must
provide written notification to the DCERP within 30 days. The DCERP will not
reimburse costs for which the owner or operator received payment from an
insurance carrier or other third-party payer.
(8) DCERF Payment Procedures
(a) Payments from the DCERF will be made
directly to the PEP in cases where the PEP submits documentation verifying it
has paid authorized costs in excess of the applicable deductible.
(b) The PEP is responsible for final payments
to the DCAC(s) performing the work including DCERP deductibles. The PEP is
responsible for making timely payments to the DCAC(s) in accordance with the
contract between the parties.
(c)
The Commissioner shall issue either a letter of reimbursement approval or a
status review letter within 90 days of receipt of a properly completed
reimbursement request. A status review letter from the Commissioner to the PEP
shall note such items as: what clarifications or additional information, if
any, are needed to complete the review and what problems were encountered, if
any, in interpreting or evaluating the reimbursement request.
If the Commissioner determines that all costs are reasonable
and eligible for reimbursement, payment will be issued within 45 days of
approval. If the Commissioner determines that certain costs are unreasonable or
ineligible for reimbursement, the Commissioner shall issue a check for the
amount determined to be reasonable and eligible, give an initial notice by
mailing a certified letter to the PEP of those costs denied reimbursement and
the reasons for denial, and provide a 45-day period from receipt of the
certified letter in which the PEP or DCAC may present such information as is
necessary to justify the disallowed costs. Following review of such
information, the Commissioner may agree to pay the previously disallowed costs,
or any portion thereof, or may again disallow the costs for payment based on
material non-compliance with this chapter or administrative guidance issued
thereunder. A denial by the Commissioner following the initial notice of denial
under this subparagraph shall be considered a final agency action interpreting
the applicability of these rules that is subject to review under T.C.A. §
4-5-223. To secure review, the PEP must file the petition for declaratory order
under T.C.A. § 4-5-223 within 30 days of issuance of this
denial.