250 R.I. Code R. 250-RICR-140-25-1.9

Current through December 26, 2024

Section 250-RICR-140-25-1.9 - The Rhode Island UST Financial Responsibility Fund

A. Purpose and Scope

1. The purpose of the fund, established in R.I. Gen. Laws Chapter 46-12.9, is to provide a mechanism to comply with financial responsibility requirements listed in § 1.8 of this Part and to ensure that the environmental and public health impacts of leaks from USTs are addressed in an effective and timely manner. The fund shall provide reimbursement for the eligible costs incurred as a result of the release of specific regulated substances from certain USTs or UST systems and for eligible third-party claims. The fund will provide reimbursement of not more than $1,000,000 per incident and up to $2,000,000 in the aggregate for eligible costs.

2. This Section shall be construed to be consistent with R.I. Gen. Laws Chapter 46-12.9 wherein said chapter has established guidelines for reimbursement from the fund. Any variance between these regulations and said chapter shall be controlled by said chapter.

B. Eligibility Requirements

1. A claimant must be subject to financial responsibility as required by 40 C.F.R. § 280 and § 1.8 of this Part.

a. To be eligible for reimbursement, a claimant must be a person who has incurred or will incur eligible costs as a result of taking corrective actions, paying third party claims, or otherwise incurring eligible costs as a result of a release of petroleum subject to the motor and special fuels tax.

2. Claimants may be eligible for reimbursement of eligible costs incurred for city, town, state or state agency sites provided that:

a. A city, town, the state or a state agency is the responsible party for a release at the site and was the owner of said site at the time of the release.

b. A city, town, the state or a state agency is the responsible party and owner of the site at the time of application on which a release occurred prior to the city, town or state agency's ownership, provided that the government entity purchased the property prior to March 1, 1998; or

c. A city, town, the state or a state agency was the responsible party at the time of the release and the site is owned by a successor in interest at the time of application.

3. Costs incurred must be related to the cleanup of, or third party claims from, the release of petroleum subject to the motor and special fuels tax from an underground storage tank or underground storage tank system.

4. Costs incurred prior to January 1, 1994 by responsible parties who are owners/operators of no more than one location containing USTs are not eligible for reimbursement. Costs incurred by all other responsible parties prior to July 8, 1994 are not eligible for reimbursement.

5. Underground storage tanks containing petroleum products for which the motor and special fuels tax is inapplicable, including underground storage tanks used for the distribution of No. 2 heating oil, used/waste oil, kerosene or other regulated substances as deemed appropriate by the Department, may be eligible for reimbursement with the following exceptions:

a. Underground storage tanks containing heating or fuel oils used solely for onsite consumption shall not be eligible.

b. Underground storage tanks exempted from these regulations under §§ 1.4(D), 1.11(B)(1) through (4) of this Part shall not be eligible.

6. Any costs incurred as a result of a release from a UST or UST system that is not registered pursuant to this Part or determined not to be in compliance with this Part as of the date the release was discovered, shall not be eligible for reimbursement from the fund. Should the UST or UST system come into compliance, however, said costs may become eligible for reimbursement. The claimant must be in compliance with all requirements of this Part, including but not limited to: requirements for registration, proper installation, spill containment, line leak detection, corrosion protection, leak detection, tank tightness testing, inventory control, closure and leak or spill reporting.

C. Owner/Operator Notification

1. The Department will inform owners/operators of USTs or UST systems subject to financial responsibility requirements about the existence and functioning of the fund when a release from their UST or UST system is reported to the Department pursuant to this Part.

D. Fund Procedures

1. Initial Application

a. Upon discovery of a release, notification to the Department, and expenditure or anticipated expenditure by the claimant of more than the deductible amount defined in § 1.9(D)(2) of this Part, or upon entry of a final judgment for bodily injury or property damage resulting from a third party claim, or in furtherance of an approved settlement of a third-party claim for bodily injury or property damage resulting from a release, a claimant may file an initial application with the Department.

b. Initial and subsequent applications for reimbursement from the fund shall be made to the Department on forms developed by or on behalf of the Department.

2. Deductible

a. Effective with the promulgation of this Part, claimants shall pay a deductible of $20,000 in eligible expenses unless the Department compliance determination indicates a lesser amount is owed.

3. Compliance Determination

a. Upon receipt of an initial fund application, the Department shall review its records to determine whether the UST or UST system responsible for the release had a valid registration certificate and was in compliance with this Part as of the date that the release was discovered. UST systems that are not in substantial compliance or have an unresolved Letter of Responsibility, Letter of Non-Compliance, Notice of Intent to Enforce, Notice of Violation, Notice of Intent to Prohibit Delivery, or Delivery Prohibition at the time of the release or discovery of release are not eligible for reimbursement from the UST Financial Responsibility Fund. USTs or UST systems with a history of non-compliance with this Part may not be considered for lower deductible amounts regardless of any settlements or contracts negotiated with the Department or any payments of administrative penalties to the Department. Registration fees must have been paid on time and in full to be considered for lower deductible amounts.

b. The Department shall notify the claimant of its status of determination within 30 days of receipt of the initial application. The Department may place restrictions on eligibility as pursuant to its compliance determination.

4. Reimbursement

a. Supplemental Claim Submittals

(1) All supplemental claims, or requests for reimbursement submitted after the initial application, shall be subject to the quarterly reimbursement deadlines as set forth by the Department. These deadlines will be scheduled annually and be made available to claimants on the Department's website.

(2) All costs associated with a request for reimbursement must be submitted within 24 months after having been incurred, provided however, that the cost is not the subject of a legal dispute. For purposes of this Section, the date on which costs were incurred shall be the original invoice date. In the event the cost is a subject of a legal dispute, the claimant shall notify the fund of said dispute by filing a signed affidavit within 24 months of the onset of the dispute. The affidavit shall include the nature of the dispute and shall name any counsel representing the parties to the dispute. No action shall be taken by the fund, concerning the specific claim, until such time as the dispute is resolved and the fund receives a copy of any decision rendered by a court or arbitrator or settlement agreement.

(3) A claimant may not submit a supplemental claim for any individual site with a total less than $5,000.00 of costs related to eligible cleanup activities. However, if a site incurs less than $5,000.00 in related costs in one calendar year, the claimant may submit a single supplemental claim with no established minimum amount at the next quarterly deadline.

(4) The final claim submitted for reimbursement may be of any total amount. The submission must clearly be marked as the Final Request for Reimbursement. No additional claims for the specific release will be accepted. Future claims for the site shall be considered a new release and will be subject to all aspects of establishing compliance and demonstrating the deductible.

b. Claim Approvals, Modifications, or Denials

(1) Within 90 days following the scheduled quarterly deadline dates, the Department shall approve, modify or deny the requests for reimbursement. The Department may order technical and/or financial audits as deemed necessary.

(2) Claimants shall be notified via documentation that shall separately list the eligible costs to be reimbursed from the fund and/or those costs, expenses and other obligations denied reimbursement.

(3) If the Department review of a claim determines that additional information or backup documentation is needed to approve eligible costs, the claimant shall be notified and will not receive reimbursement for that quarterly submittal. The claimant must submit this additional information or documentation by the next quarterly deadline and may only resubmit the claim with backup documentation once.

c. Fund Disbursements

(1) The Department shall consider requests for reimbursement from the fund in the order received and shall authorize disbursements accordingly, except in cases where the Director, in their discretion, determines that a particular situation warrants priority.

(2) The Department reserves the right to determine allowable reimbursements for reasonable and appropriate eligible costs, and such allowable claims shall be reimbursed at a rate of 100% over a time period(s) determined by the Department subject to deductible limits and the provisions of R.I. Gen. Laws Chapter 46-12.9 and further subject to the availability of funds.

5. Cost Recovery

a. The Department may access the fund at its discretion to carry out investigative or corrective action activities at sites contaminated by petroleum releases from USTs. The Department may proceed to recover the costs incurred in carrying out these investigative and corrective action activities from the responsible party under the authority of R.I. Gen. Laws §§ 23-19.14-6 and 23-19.14-13, and in accordance with the Rules and Regulations for Assessment of Administrative Penalties, Part 130-00-1 of this Title.

E. Third Party Claims

1. A third-party claim may be submitted to the Department either in the form of a final judgment or a settlement, or request for settlement.

a. Within 120 days from the entry of final judgment, a claimant shall submit an initial application for reimbursement to the Department. The initial application for reimbursement shall be reviewed for a finding of eligibility pursuant to § 1.9(B) of this Part.

b. When a claim is submitted to the Department in the form a final judgment, the Department shall determine what costs of said judgment are relative to bodily injury and property damage upon recommendation of the staff.

c. When a claim is submitted to the Department with a settlement or request for settlement, said request shall be reviewed under a policy and procedure adopted by the Department, placed on file at the Department. Final approval of claims shall be by the Department.

F. Private Insurance Coverage

1. There shall be no right of recovery against the fund for payments made under other insurance.

2. Costs must be submitted to the private insurer until the limits of coverage are met.

a. If a private insurer denies payment of cleanup costs as not payable within the limits of coverage, a claimant may submit these denied costs to the fund for Department review.

b. When the limits of coverage are met, the claimant may submit reimbursement requests for any additional or ongoing cleanup costs.

G. Recordkeeping

1. A claimant shall keep all records relating to requests for reimbursement for at least three years from the date of final reimbursement or otherwise disposed of by the Department.

H. False Statements

1. Any person making false or misleading statements on any such application or other form to be submitted to the Department may be denied reimbursement from the fund.

I. Right to Financial Audits

1. To be eligible for reimbursement from the fund, a claimant shall allow the Department or its designee, in its sole discretion, to perform financial audits of all records pertinent to site clean-up to ensure compliance with this rule and to certify eligible remedial costs.

2. The Department reserves the right to pursue cost recovery if financial audits reveal discrepancies that resulted in overpayment of eligible remedial costs to the claimant.

J. Severability

1. If any of the provisions of these regulations of the applicability thereof is held invalid by any court or competent jurisdiction, the remainder of these provisions of these regulations shall not be affected hereby.

250 R.I. Code R. 250-RICR-140-25-1.9

Amanded effective 11/20/2018