As used in this section:
(a)
Definitions
"Applicant" means an owner or operator of any one or
combination of underground storage tank systems used to contain motor fuels or
used to contain heating fuels for other than consumptive use on the premises
which were subject to or would have been subject to demonstration of financial
responsibility under 40 CFR Part 280.90 et seq. as said regulation was
published in the federal register of October 26, 1988.
"Board" means the underground storage tank petroleum clean-up
fund review board established under section
22a-449d
of the general statutes.
"Commissioner" means the commissioner of environmental
protection or his or her designated agent.
"Department" means the department of environmental
protection.
"Fund" means the underground storage tank petroleum clean-up
fund established under section
22a-449c
of the general statutes.
(b)
Organization of the board
(1) Meetings. Regular meetings of the board
shall be held at a time and at a location to be determined by the board and
kept on file with the Office of the Secretary of State in Hartford,
Connecticut. A meeting of the board may be recessed to a time and place
certain. Special meetings of the board shall be held at the call of the
chairperson or at the call of any three members of the board, at the time and
place designated in the call.
(2)
Quorums. The presence of at least seven (7) members of the board shall
constitute a quorum at any meeting of the board. A decision to approve a claim
submitted pursuant to this regulation shall be by majority vote of the board
members present and voting. Any vote for a decision to approve a claim
submitted pursuant to this regulation which does not result in a majority vote
of the board members present and voting shall be deemed a denial of that
claim.
(3) Election of Officers.
The members of the board shall elect annually, from their number, a chairperson
who shall preside at meetings of the board, a vice-chairperson who shall
preside at meetings of the board in the absence of the chairperson, and a
secretary who shall maintain minutes of all board meetings.
(4) Application Procedure. Applications for
reimbursement or payment submitted pursuant to section
22a-449f
of the general statutes shall be mailed or personally delivered to the Office
of the Commissioner of Environmental Protection in Hartford, Connecticut or
such other agent as designated by the board.
(c)
Notification to Eligible
Parties
The board shall notify eligible parties of the existence of the
Underground Storage Tank Petroleum Clean-up fund as follows:
(1) A notice to owners and operators of
underground storage tanks who have filed notifications with the commissioner
pursuant to section
22a-449(d)
-1 (d) of the regulations of Connecticut state agencies shall be mailed within
sixty (60) days after the adoption of these regulations.
(2) A notice shall be distributed
concurrently with the dissemination of forms for notification of underground
storage tank facilities pursuant to section
22a-449(d)
-1 (d) of the regulations of Connecticut state agencies.
(d)
Eligible Costs
Eligible costs shall include reasonable costs incurred as a
result of a release or suspected release, provided such costs resulted from
activities which were performed in accordance with all applicable laws, and
shall include costs incurred for, but not limited to, the following
activities:
(1) Implementation of
emergency mitigative actions including, but not limited to, actions taken to:
(A) eliminate sources of pollution;
(B) prevent or abate imminent fire or
explosion hazards;
(C) intercept
and recover free petroleum; and
(D)
remove, store for an interim period and dispose of polluted soils.
(2) Preparation and submittal to
the commissioner of a proposed investigative scope of study which includes, but
is not limited to:
(A) locations and depths of
ground water monitoring wells;
(B)
locations of soil and surface water sampling;
(C) a sampling and analytical program,
including parameters to be tested, sampling and analytical methods, and quality
assurance and quality control procedures; and
(D) a schedule and cost estimate for
conducting the investigation.
(3) Conducting an investigation to
characterize the existing and potential extent and degree of soil, air, surface
water and ground water pollution.
(4) Preparation and submittal to the
commissioner of an engineering report which includes, but is not limited to,
the following:
(A) a detailed description of
the investigation performed;
(B) an
analysis of the existing and potential extent and degree of soil, air, surface
water and ground water pollution which is on, is emanating from or has emanated
from the site;
(C) an evaluation of
alternatives for remedial actions to abate such pollution;
(D) proposal of a preferred alternative with
supporting justification;
(E)
proposal of a detailed program and schedule to implement the preferred remedial
actions;
(F) proposal of soil, air,
surface water and ground water monitoring programs to determine the degree to
which the remedial actions have been effective, and a schedule for performing
all monitoring; and
(G) a cost
estimate for implementation of the preferred remedial action
strategy.
(5)
Preparation of contract plans and specifications for remedial actions, and
actions necessary to obtain all permits required for such actions, including
any reasonable legal or technical fees necessary for such actions.
(6) Performance of remedial
actions.
(7) Performance of studies
and monitoring programs to determine the effectiveness of the remedial
actions.
(8) Payment of third party
claims for bodily injury, property damage and damage to natural
resources.
(e)
Records Required for Submission of Claims
(1) All applications for costs incurred other
than those applications specified in subdivision (2) of this subsection shall
be submitted on forms prescribed by the board to the commissioner of
environmental protection or another agent designated by the board, and shall
include the following records and information:
(A) location of the underground storage tank
system from which the release emanated, or from which a release was suspected
to have emanated;
(B) name, address
and telephone number of each owner and operator of the underground storage tank
system from which the release emanated or from which a release was suspected to
have emanated;
(C) date and method
of discovery of the release;
(D)
date the release was reported to the department and to the board;
(E) what the applicant believes to be the
cause of the release and all information documenting the basis for that
belief;
(F) estimated amount and
type of petroleum released;
(G)
facility component or components, including registration numbers of components,
responsible for the release;
(H)
description of the services rendered and the dates of services rendered, and
copies of all bills for costs incurred as a result of the release or of a
suspected release, indicating whether or not such costs have been paid, and
which costs represent the first ten thousand dollars borne by the responsible
party;
(I) a demonstration that the
costs incurred were the result of a release or suspected release from an
underground storage tank system, and that the system was one for which the
responsible party was or would have been required to demonstrate financial
responsibility under 40 CFR Part
280.90 et seq., as published in the Federal
Register of October 26, 1988;
(J)
for costs other than those associated with legal representation, medical
services or emergency mitigative actions, and other than for activities
occurring prior to the adoption of these regulations or performed by
consultants who were retained prior to the adoption of these regulations, a
description of the process used to obtain three (3) written bids for services
rendered, copies of those bids and reason(s) specified if any lower bid was not
selected. This requirement shall apply only to those investigatory or remedial
services performed which exceed five thousand dollars in cost;
(K) copies of all required notifications, as
required by section
22a-449(d)
-1 (d) of the regulations of Connecticut state agencies, submitted to the
department as notification of the underground storage tank system from which
the release or suspected release emanated and the reasons for failure to submit
any notifications to the department as required by section
22a-449(d)
-1 (d) of the regulations of Connecticut state agencies;
(L) report from a consultant as to the
responsible party's compliance status, for a period of at least three years
immediately prior to the date of the release or suspected release, with regard
to those provisions of the general statutes and regulations of Connecticut
state agencies governing the installation, operation and maintenance of
underground storage tanks. Such report shall include verification of compliance
or a description of the date, nature, extent and degree of each
violation;
(M) copies of all
certifications, if any, by the commissioner that the elements described in
subdivisions (1) through (7) of subsection (d) have been performed to the
satisfaction of the commissioner;
(N) copies of any approvals, permits, orders,
notices of violation, or lawsuits including referrals for civil action issued
by the commissioner regarding the site;
(O) verification that the responsible party
has borne the first ten thousand dollars of all costs of the release;
(P) for applications relating to third party
claims, the information specified in subparagraphs (B), (C), (F) and (G) of
subdivision (2) of this subsection;
(Q) signature of the applicant, and the
individual or individuals responsible for actually preparing the application,
who shall certify in writing as follows:
"I have personally examined and am familiar with the
information submitted in this document and all attachments and certify that
based on reasonable investigation, including my inquiry of those individuals
immediately responsible for obtaining the information, the submitted
information is true, accurate and complete to the best of my knowledge and
belief, and I understand that any false statement made in this document or its
attachments may be punishable as a criminal offense;" and
(R) date the application was completed and
signed.
(2) All
applications to the board which are submitted only by third parties for bodily
injury, property damage or damage to natural resources suffered by them shall
be submitted on forms prescribed by the board to the commissioner of
environmental protection, or another agent designated by the board, and shall
include the following records and information:
(A) location of the underground storage tank
system from which the release emanated, or from which a release was suspected
to have emanated;
(B) nature of the
claim for bodily injury, property damage or damage to natural resources and
date on which the injury or damage was discovered;
(C) evidence that the claim was finally
adjudicated or settled with the prior written approval of the board before an
application for reimbursement or payment was made;
(D) description of the services rendered and
the dates of services rendered, and copies of all bills for costs incurred as a
result of the release or of the suspected release, indicating whether or not
such costs have been paid, and which costs represent the first ten thousand
dollars borne by the responsible party;
(E) for costs other than those associated
with legal representation, medical services or emergency mitigative actions,
and other than for activities occurring prior to the adoption of these
regulations or performed by consultants who were retained prior to the adoption
of these regulations, a description of the process used to obtain three (3)
written bids for services rendered, copies of those bids and reason(s)
specified if any lower bid was not selected. This requirement shall apply only
to those services performed which exceed five thousand dollars in
cost;
(F) certifications from
licensed professionals substantiating third party claims for bodily injury,
property damage and damage to natural resources, including, but not limited to,
statements from licensed physicians, claims adjusters and attorneys;
(G) all documents relating to attempts by the
applicant to recover costs from the responsible party, and evidence that the
responsible party notified the board as soon as practicable of the release and
of any third party claim resulting from the release;
(H) signature of the applicant, and the
individual or individuals responsible for actually preparing the application,
who shall certify in writing as follows:
"I have personally examined and am familiar with the
information submitted in this document and all attachments and certify that
based on reasonable investigation, including my inquiry of those individuals
immediately responsible for obtaining the information, the submitted
information is true, accurate and complete to the best of my knowledge and
belief, and I understand that any false statement made in this document or its
attachments may be punishable as a criminal offense;"
(I) date the application was completed and
signed.
(3) The board
may at any time require a responsible party or an applicant to submit
additional information which the board deems necessary to act upon an
application. The board may reject an application for failure to submit such
required information.
(4) An
applicant may submit supplemental claims for payment or reimbursement as new
costs are incurred in connection with a release or suspected release. Such
supplemental applications to the board shall be submitted on forms prescribed
by the board and shall include such records and information as required in
subdivision (1) or (2) of this subsection as the board deems
necessary.
(5) Within fifteen (15)
days of the date an applicant, individual, or individuals responsible for
actually preparing an application becomes aware of a change in any information
submitted to the board under these regulations, or that any such information
was inaccurate or misleading or that any relevant information was omitted, the
applicant, individual, or individuals shall submit the correct or omitted
information to the board.
(f)
Procedures for Application
Review
(1) Upon filing of an
application, the commissioner or another agent designated by the board shall
determine if the application complies with the requirements of subdivision (1)
or (2) of subsection (e).
(2) An
application shall only be deemed complete by the commissioner or another agent
designated by the board upon satisfactory fulfillment of the requirements of
subdivision (1) or (2) of subsection (e).
(3) Upon receipt of a complete application,
the board shall take the following actions:
(A) Refer the application to the commissioner
who shall:
(i) evaluate whether the costs were
incurred after July 5, 1989, and if the release or suspected release was from
an underground storage tank system for which the responsible party was or would
have been required to demonstrate financial responsibility under 40 CFR Part
280.90 et seq. as said regulation was published in the federal register of
October 26, 1988.
(ii) evaluate
whether the underground storage tank system from which a release emanated was
subject to the notification procedures of section
22a-449
of the general statutes, whether such a notification was completed and, if such
notification was not completed, whether the responsible party knowingly and
intentionally failed to notify the commissioner;
(iii) evaluate whether the release resulted
from a reckless, wilful, wanton or intentional act or omission of a responsible
party;
(iv) evaluate whether the
release occurred from an underground storage tank system which, at the time of
the release, was not in compliance with an order issued by the commissioner or
with the general statutes and regulations governing the installation, operation
and maintenance of underground storage tanks and such lack of compliance was a
proximate cause of such release;
(v) determine whether the first ten thousand
dollars of costs of the release have been borne by the responsible
party;
(vi) determine whether third
party claims were finally adjudicated or settled with the prior written
approval of the board before application for reimbursement or payment was made
to the board;
(vii) evaluate
whether grounds for recovery under section
22a-449f(b)
of the general statutes exist, in which case section
22a-449f(a)
prohibits the board from ordering reimbursement or payment from the
fund;
(viii) review and investigate
any or all requests for reimbursement or payment by a responsible party for
costs other than third party claims for bodily injury and property
damage.
(ix) evaluate the
eligibility of the applicant for payment of costs incurred and/or reimbursement
of costs paid, and in the case of a third party applicant, the eligibility of
the applicant for payment or reimbursement of claims for bodily injury,
property damage and/or damage to natural resources;
(x) evaluate whether some or all of the costs
incurred and/or paid were incurred as a result of a release or a suspected
release;
(xi) evaluate, based on
costs and standards prevalent in the relevant market or industry or other
relevant information, whether some or all of the costs incurred were reasonable
in amount for the goods and/or services provided;
(xii) determine whether proper notice of the
release and of third party claims has been provided to the board as soon as
practicable; and
(xiii) prepare a
written report of such review and investigation including his or her evaluation
and recommendations for the board to act on such application.
(B) Refer the application or
portions of the application to a consultant who is under contract to the
commissioner for a review and investigation pursuant to subdivision (3) of this
subsection for a review and investigation of any or all requests for payment of
claims by third parties for bodily injury, or the amount of claims for property
damage. The consultant shall submit to the board a written report of such
review and investigation, of the conclusions reached and of the recommendations
of such consultant for action by the board on such application.
(4) The board shall render a
decision not more than forty-five (45) days after the date an application is
received by the commissioner, or another agent designated by the board for the
receipt of applications, provided such application included all information
required by subdivision (1) or (2) of subsection (e) when received. Any
decision of the board shall briefly state the grounds for any denial and shall
be deemed issued upon deposit in the mail.
(g)
Payment of Claims
(1) Upon authorization of the board, the
commissioner shall reimburse the applicant for authorized costs or make payment
to vendors for services rendered. Payments shall be made based upon the
availability of monies in the fund. In the event that sufficient monies do not
exist in the fund to make reimbursements, the commissioner shall retain the
outstanding claims and shall make future payments pending availability of
monies in the fund. Such payments shall be processed based upon the date the
claim was approved by the board in order of approval date, the oldest approved
claim processed first.
(2) Where
costs incurred may be of a continuing nature, the applicant may submit monthly
requests for payment on a form provided by the board. The form shall indicate a
documented accounting of expenses authorized, cumulative expenses to date,
cumulative payments received to date, and verification of payments made. The
minimum monthly payment shall not be less than five thousand dollars
($5,000.00) unless the total cost authorized for payment does not exceed five
thousand dollars ($5,000.00). The board may, at its discretion, preauthorize
such ongoing costs for a period not to exceed twelve (12) months.
(h)
Assistance rendered to
the board by the commissioner of environmental protection
The commissioner may provide the following services to the
board:
(1) Notify eligible parties of
the existence of the fund in accordance with subsection (c) of these
regulations:
(2) Receive, review
and investigate applications for claims;
(3) Prepare reports and recommendations on
applications;
(4) Maintain records,
information, applications and minutes of board meetings as well as other
administrative records, as needed;
(5) Contract with consultants for those
services necessary for the board to perform its function as provided in section
22a-449c
of the general statutes and these regulations, the costs of such contractual
services to be funded as administrative costs as provided in section
22a-449c
of the general statutes, as amended by section 1 of Public Act
91-254;
(6) Provide other
administrative services, as needed, for the board to perform its function as
provided in section
22a-449a to section
22a-449h,
inclusive, of the general statutes.