La. Admin. Code tit. 33 § XI-1121

Current through Register Vol. 50, No. 9, September 20, 2024

Section XI-1121 - Use of the Motor Fuels Underground Storage Tank Trust Fund

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Substantial Compliance-Repealed.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.

La. Admin. Code tit. 33, § XI-1121

Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Underground Storage Tank Division, LR 16:614 (July 1990), amended LR 17:658 (July 1991), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2561 (November 2000), LR 27:521 (April 2001), amended by the Office of Environmental Assessment, LR 31:1577 (July 2005), amended by the Office of the Secretary, Legal Affairs Division, LR 34:864 (May 2008), LR 35:1881 (September 2009), Amended by the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 441625 (9/1/2018).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2001 et seq. and specifically 2195-2195.10.