La. Admin. Code tit. 33 § XI-1135

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

Section XI-1135 - Drawing on Financial Assurance Mechanisms

A. The administrative authority shall require the guarantor, surety, or institution issuing a letter of credit to place the amount of funds stipulated by the administrative authority, up to the limit of funds provided by the financial assurance mechanism, into the standby trust under the circumstances described in either Paragraph A.1 or 2 below.

1. The administrative authority shall require that the funds be placed into the standby trust if both of the following occur:

a. the owner or operator fails to establish alternate financial assurance within 60 days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism; and

b. the administrative authority determines or suspects that a release from an underground storage tank covered by the mechanism has occurred and so notifies the owner or operator, or the owner or operator has notified the administrative authority pursuant to LAC 33:XI.707-713 or 715 of a release from an underground storage tank covered by the mechanism.

2. The conditions of Paragraph B.1 or Subparagraph B.2.a or b of this Section are satisfied.

B. The administrative authority may draw on a standby trust fund under the following circumstances.

1. The administrative authority makes a final determination that a release has occurred and immediate or long-term corrective action for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply, has not conducted corrective action as required under LAC 33:XI.715.

2. The administrative authority has received one of the following.

a. The administrative authority receives certification from the owner or operator and the third-party liability claimant(s) and from attorneys representing the owner or operator and the third-party liability claimant(s) that a third-party liability claim should be paid. The certification shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

Certification of Valid Claim

The undersigned, as principals and as legal representatives of [insert owner or operator] and [insert name and address of third-party claimant], hereby certify that the claim of bodily injury [and/or] property damage caused by an accidental release arising from operating [owner's or operator's] underground storage tank should be paid in the amount of $[________].

[Signatures]

Owner or Operator

Attorney for Owner or Operator

(Notary) Date

[Signature(s)]

Claimant(s)

Attorney(s) for Claimant(s)

(Notary) Date

b. The administrative authority receives a valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from an underground storage tank covered by financial assurance under this Chapter, and the administrative authority determines that the owner or operator has not satisfied the judgment.

C. If the administrative authority determines that the amount of corrective action costs and third-party liability claims eligible for payment under Subsection B of this Section may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The administrative authority shall pay third-party liability claims in the order in which the administrative authority receives certifications under Subparagraph B.2.a of this Section, and valid court orders under Subparagraph B.2.b of this Section.

La. Admin. Code tit. 33, § XI-1135

Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Underground Storage Tank Division, LR 16:614 (July 1990), Amended by the Office of the Secretary, Legal Affairs and Criminal Investigations Division, LR 441628 (9/1/2018).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2001 et seq.