Current through Register Vol. 41, No. 3, September 23, 2024
A. The Virginia
Petroleum Storage Tank Fund will be used for reasonable and necessary costs, in
excess of the financial responsibility amounts specified below, incurred by an
operator for containment and cleanup of a petroleum release from a facility of
a product subject to § 62.1-44.34:13 of the Code of Virginia as follows:
1. Reasonable and necessary per occurrence
containment and cleanup costs incurred by an operator whose net annual profits
from all facilities in Virginia do not exceed $10 million:
a. For a release from a facility with a
storage capacity less than 25,000 gallons, per occurrence costs in excess of
$2,500 up to $1 million;
b. For a
release from a facility with a storage capacity from 25,000 gallons to 100,000
gallons, per occurrence costs in excess of $5,000 up to $1 million;
c. For a release from a facility with a
storage capacity from 100,000 gallons to four million gallons, per occurrence
costs in excess of $.05 per gallon of aboveground storage capacity up to $1
million; and
d. For a release from
a facility with a storage capacity greater than four million gallons, per
occurrence costs in excess of $200,000 up to $1 million.
e. For purposes of this subdivision, the per
occurrence financial responsibility requirements for an operator shall be based
on the total storage capacity for the facility from which the discharge
occurs.
2. Reasonable
and necessary per occurrence containment and cleanup costs incurred by an
operator whose net annual profits from all facilities in Virginia exceed $10
million:
a. For a release from a facility
with a storage capacity less than four million gallons, per occurrence costs in
excess of $200,000 up to $1 million;
b. For a release from a facility with a
storage capacity from four million gallons to 20 million gallons, per
occurrence costs in excess of $.05 per gallon of aboveground storage capacity
of up to $1 million; and
c. For a
release from a facility with a storage capacity greater than 20 million gallons
no access to the fund will be permitted.
d. For purposes of this subdivision, the
financial responsibility requirements for an operator are based on the total
aboveground storage capacity for all facilities operated in Virginia.
B. The Virginia
Petroleum Storage Tank Fund will be used for reasonable and necessary per
occurrence costs of containment and cleanup incurred for releases reported
after December 22, 1989, by the operator of a facility in excess of $500 up to
$1 million for any release of petroleum into the environment from an
aboveground storage tank with a capacity of 5,000 gallons or less used for
storing heating oil for consumption on the premises where stored.
C. The Virginia Petroleum Storage Tank Fund
may be used for all other uses authorized in § 62.1-44.34:11 of the Code
of Virginia.
D. An operator of a
facility responding to a release and conducting department-approved corrective
action may proceed to pay for all costs incurred for such activities.
Documentation submitted to the department of all costs incurred will be
reviewed and those documented costs in excess of the financial responsibility
requirements up to $1 million that are reasonable and necessary and have been
approved by the department will be reimbursed from the fund.
E. Operators shall pay the financial
responsibility requirement specified in this section for each
occurrence.
F. Section
62.1-44.34:11 A of the Code of Virginia provides that no person shall receive
reimbursement from the fund:
1. For costs
incurred for corrective action taken prior to December 22, 1989 by an owner or
operator of an underground storage tank exempted in subdivisions 1 and 2 of the
definition of an underground storage tank in § 62.1-44.34:10 of the Code
of Virginia, or an owner of an aboveground storage tank with a capacity of
5,000 gallons or less used for storing heating oil for consumption on the
premises where stored.
2. For costs
incurred prior to January 1, 1992, by an operator of a facility for containment
and cleanup of a release from a facility of a product subject to §
62.1-44.34:13 of the Code of Virginia.
3. For containment and cleanup costs that are
reimbursed or are reimbursable from other applicable state or federal
programs.
4. If the operator of a
facility has not complied with applicable statutes or regulations governing
reporting, prevention, containment and cleanup of a discharge of oil.
5. If the owner or operator of an underground
storage tank or the operator of an aboveground storage tank facility fails to
report a release of petroleum or a discharge of oil to the department as
required by applicable statutes, laws or regulations.
6. Unless a reimbursement claim has been
filed with the department within two years from the date the department issues
a site remediation closure letter for that release or July 1, 2000, whichever
is later.
G. In addition
to the statutory prohibitions quoted in subsection F of this section, no person
shall receive reimbursement from the fund for containment and cleanup:
1. Where the release is caused, in whole or
in part, by the willful misconduct or negligence of the operator, his employee,
contractor, or agent, or anyone within his privity or knowledge;
2. Where the claim cost has been reimbursed
or is reimbursable by an insurance policy;
3. Where the operator does not demonstrate
the reasonableness and necessity of the claim costs;
4. Where the person, his employee, contractor
or agent, or anyone within the privity or knowledge of that person has (i)
failed to carry out the instructions of the department, (ii) committed willful
misconduct or been negligent in carrying out the instructions of the
department, or (iii) has violated applicable federal or state safety,
construction or operating laws or regulations in carrying out the instructions
of the department; and
5. Where the
costs or damages were incurred pursuant to § 10.1-1232 of the Code of
Virginia and the regulations promulgated thereunder.
H. No disbursements shall be made from the
fund for operators who are federal government entities or whose debts and
liabilities are the debts and liabilities of the United States.
I. No funds shall be paid in excess of the
minimum disbursement necessary to contain and cleanup each occurrence to the
acceptable level of risk, as determined by the department.
J. The department may perform a detailed
review of all documentation associated with a reimbursement claim up to seven
years following payment of the claim. Based upon the results of the review, the
department may take actions to address any deficiencies found in the claim
documentation. Such actions may include, but are not limited to, publishing a
list of audit concerns associated with the claim, withholding payment of future
claims, and/or recovering costs paid on prior claims.
K. The department shall seek recovery of all
costs and expenses incurred by the Commonwealth for investigation, containment
and cleanup of a discharge of oil or threat of discharge against any person
liable for a discharge of oil as specified in Article 11 (§ 62.1-44.34:14
et seq.) of the State Water Control Law; however, the department shall seek
recovery from an operator of expenditures from the fund only in the amount by
which such expenditures exceed the amount authorized to be disbursed to the
operator under subdivisions A 1 and A 2 of this section. This limitation on
recovery shall not apply if the release was caused, in whole or in part, by the
willful misconduct or negligence of the owner or operator, his employee,
contractor, or agent, or anyone within his privity or knowledge.
Statutory Authority: §§ 62.1-44.15 and
62.1-44.34:16 of the Code of Virginia.
