8-7-907. Payments for corrective action.

8-7-907. Payments for corrective action. (a)(1) No payment for corrective action shall be paid from the Petroleum Storage Tank Trust Fund until the owner or operator has expended seven thousand five hundred dollars ($7,500) on corrective action for the occurrence, except in cases in which the Director of the Division of Environmental Quality is using emergency authority under § 8-7-905(e). It is the intent of the General Assembly that this initial level of expenditure be considered the equivalent of an insurance policy deductible. (2) Owners or operators of underground storage tanks must demonstrate financial responsibility for the seven-thousand-five-hundred-dollar deductible for corrective actions. (b) Payment for corrective action shall not exceed one million five hundred thousand dollars ($1,500,000) per occurrence. (c) All payments for corrective action expenses of the owner or operator shall be made only following proof that: (1)(A) At the time of discovery of the release the owner or operator had paid all fees required under state law or rules applicable to petroleum storage tanks. (B) If the petroleum storage tank is an aboveground storage tank, the owner or operator may be eligible for reimbursement if the aboveground storage tank is registered under § 8-7-813 and all fees required under state law or rule have been paid; (2) The corrective action expenses submitted for reimbursement consist of items and amounts that are in accord and compliant with Division of Environmental Quality rules; and (3) The owner or operator cooperated fully with the division in corrective action to address the release. (d) Payment for corrective action may be denied if the storage tank owner or operator fails to report a release as required by rule promulgated by the Arkansas Pollution Control and Ecology Commission, and the failure to report the release causes a delay in the corrective action that contributes to an adverse impact to the environment. (e)(1) The commission may provide through rule for interim payments for corrective action. (2) Interim payments shall be subject to these limitations: (A) Proof of compliance with the requirements of subdivisions (c)(1)-(3) of this section must be provided; (B) Specific assurances must be provided that an approved corrective action plan, division directive, or order is being implemented and followed to date; and (C)(i) Interim payments shall consist of payment of an amount not to exceed ninety percent (90%) of one million five hundred thousand dollars ($1,500,000). (ii) The remaining ten percent (10%) shall be released only upon final payment for corrective action concerning the occurrence. (f)(1) In the event moneys are expended from the fund for corrective action and the owner or operator was not at the time of the occurrence eligible to receive reimbursement for corrective action, as defined by this subchapter and rules promulgated under this subchapter, the division may recover from the owner or operator the amount of moneys expended from the fund for corrective action by filing an action in the appropriate circuit court or by using the administrative procedures set forth in § 8-7-804. (2)(A) The division also has a right of subrogation: (i) To any insurance policies in existence at the time of the occurrence to the extent of any rights the owner or operator of a site may have had under that policy; and (ii) Against any third party who caused or contributed to the occurrence. (B) The right of subrogation shall apply to sites where corrective action is taken by: (i) Owners or operators; or (ii) The division. (C) As used in this subsection, “third party” does not include a former owner or operator of the site where corrective action is taken. (g)(1) Unknown petroleum storage tanks that have satisfied the requirements of subdivisions (c)(1)-(3) of this section shall be eligible for reimbursement for corrective action as provided by this section if: (A) The unknown petroleum storage tank is discovered while removing, upgrading, or replacing a petroleum storage tank meeting the requirements of subsection (c) of this section or while performing petroleum investigation or corrective action activities required by federal or state laws and the petroleum storage tank meeting the requirements of subsection (c) of this section is located on the same property or facility; or (B) The unknown petroleum storage tank is located on a right-of-way purchased by a city, county, or state governmental agency or entity and is discovered during construction in such a right-of-way. (2) Eligibility for reimbursement of unknown petroleum storage tanks will be conditioned on the payment of three hundred seventy-five dollars ($375) to the division. (h) If the owner or operator is found to have been in noncompliance with any state laws and rules and federal laws and regulations relating to storage tanks at the time of the occurrence, the division may assess a penalty in accordance with its applicable policies and procedures. (i)(1) An owner or operator determined to be eligible for payment for corrective action for a release from a qualified storage tank or the division may transfer the eligibility to a subsequent owner or operator of the qualified storage tank if the division determines that the subsequent owner or operator has the financial and legal capacity to complete the corrective action and the subsequent owner or operator agrees in writing to assume responsibility for corrective action. (2) A transfer under subdivision (i)(1) of this section shall not affect the potential liability of the owner or operator for undertaking any required corrective action. (3) The removal of the storage tank after initiation of corrective action shall not bar the transfer of eligibility as provided in subdivision (i)(1) of this section. (j)(1) A lender or secured creditor that holds ownership in a storage tank primarily to protect a security interest on the storage tank or the facility on which it is located, or both, is eligible for payment for corrective action if the lender or secured creditor assumes responsibility for completing the corrective action of a release from a qualified storage tank. (2) If an owner or operator is performing corrective action to the division's satisfaction, a lender or secured creditor is not eligible to assume responsibility for corrective action or to receive payment for corrective action. (3) Subdivisions (j)(1) and (2) of this section do not affect the liability of the owner or operator for undertaking any required corrective action. (k)(1) The commission shall provide through rule a procedure under which an owner or operator or a consultant can be eligible for payment for the purchase of equipment needed for undertaking corrective action. (2) The procedure adopted under subdivision (k)(1) of this section shall include without limitation: (A) Depreciation schedules; (B) Reasonable rent as appropriate; (C) Evaluation of residual value of equipment; and (D) Providing for reversion of equipment to the division if the responsibility for the maintenance or payment for the equipment is not met. (3) The eligibility for payment of a consultant applies only to this subsection.