Connecticut Seal

Substitute Senate Bill No. 543

Public Act No. 04-244

AN ACT CONCERNING THE COMMERCIAL UNDERGROUND STORAGE TANK ACCOUNT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 145 of public act 03-6 of the June 30 special session is repealed and the following is substituted in lieu thereof (Effective from passage):

Notwithstanding the provisions of sections 22a-449a to 22a-449m, inclusive, of the general statutes, on and after [September 1, 2003] July 1, 2005, and prior to October 1, 2005, neither the Underground Storage Tank Petroleum Clean-Up Account Review Board nor the Commissioner of Environmental Protection shall accept applications pursuant to section 22a-449f of the general statutes for reimbursement and payments from the account established under section 22a-449c of the general statutes.

Sec. 2. Section 22a-449c of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) (1) There is established an account to be known as the "underground storage tank petroleum clean-up account". The underground storage tank petroleum clean-up account shall be an account of the Environmental Quality Fund. Notwithstanding any provision of the general statutes to the contrary, any moneys collected shall be deposited in the Environmental Quality Fund and credited to the underground storage tank petroleum clean-up account. Any balance remaining in said account at the end of any fiscal year shall be carried forward in said account for the fiscal year next succeeding.

(2) The account shall be used by the Commissioner of Environmental Protection to provide money for reimbursement or payment pursuant to section 22a-449f to responsible parties or parties supplying goods or services, or both, to responsible parties for costs, expenses and other obligations paid or incurred, as the case may be, as a result of releases, and suspected releases, costs of investigation of releases and suspected releases, and third party claims for bodily injury, property damage and damage to natural resources. Notwithstanding the provisions of this section regarding reimbursements of parties pursuant to section 22a-449f, regulations promulgated pursuant to section 22a-449e, and regardless of when an application for payment or reimbursement may have been submitted to the board, after June 1, 2004, no payment or reimbursement shall be made for any costs, expenses and other obligations paid or incurred for remediation, including any monitoring to determine the effectiveness of the remediation, of a release to levels more stringent than or beyond those specified in the remediation standards established pursuant to section 22a-133k, except to the extent the applicant demonstrates that it has been directed otherwise by the Department of Environmental Protection. In addition, notwithstanding the provisions of this section regarding reimbursements of parties pursuant to section 22a-449f, the responsible party for a release shall bear all costs of the release that are less than ten thousand dollars or more than one million dollars, except that for any such release which was reported to the department prior to December 31, 1987, and for which more than five hundred thousand dollars has been expended by the responsible party to remediate such release prior to June 19, 1991, the responsible party for the release shall bear all costs of such release which are less than ten thousand dollars or more than five million dollars, provided the portion of any reimbursement or payment in excess of three million dollars may, at the discretion of the commissioner, be made in annual payments for up to a five-year period. There shall be allocated to the department annually, for administrative costs, two million dollars.

(b) There is established a subaccount within the underground storage tank petroleum clean-up account to be known as the "residential underground heating oil storage tank system clean-up subaccount" to be used solely for the provision of reimbursements under sections 22a-449l and 22a-449n, for the remediation of contamination attributed to residential underground heating oil storage tank systems. The subaccount shall hold the proceeds of the bond funds allocated pursuant to section 51 of public act 00-167*.

Sec. 3. Section 22a-449f of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) A responsible party may apply to the Underground Storage Tank Petroleum Clean-Up Account Review Board established under section 22a-449d, for reimbursement for costs paid and payment of costs incurred as a result of a release, or a suspected release, including costs of investigating a release, or a suspected release, incurred or paid by a responsible party who is determined not to have been liable for any such release. If a person or entity, other than a responsible party, claims to have suffered damage or personal injury from a release, and the responsible party denies there was a release or does not apply to the board for payment of such claim, the person or entity holding such claim may apply to the board for payment for such damage or personal injury. The board shall order reimbursement or payment from the account for any cost paid or incurred, as the case may be, if, (1) such cost is or was incurred after July 5, 1989, (2) 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, for the underground storage tank or underground storage tank system from which the release emanated, whether or not such owner is required to comply with said requirements on the date any such cost is incurred, provided if the state is the responsible party, the board may order payment from the account without regard to whether the state was or would have been required to demonstrate financial responsibility under said sections 40 CFR Part 280. 90 et seq. , (3) after the release, if any, the responsible party incurred a cost, expense or obligation for investigation, cleanup or for claims of third parties resulting from a release, provided any third party claim shall be required to be finally adjudicated or settled with the prior written approval of the board before an application for reimbursement or payment is made, (4) the board determines that the cost is for damage that was incurred as a result of the release, and that the grounds for recovery specified in subsection (b) of this section do not exist at the time such determination is made, [and] (5) the responsible party notified the board as soon as practicable of the release, and of any third party claim resulting from the release, in accordance with the regulations adopted pursuant to section 22a-449e, and (6) the applicant demonstrates the remediation, including any monitoring to determine the effectiveness of the remediation, for which payment or reimbursement is sought is not more stringent than that required by the remediation standards established pursuant to section 22a-133k, except to the extent the applicant demonstrates that it has been directed otherwise by the Department of Environmental Protection. In acting on a request for payment or reimbursement, the board, using funds from the underground storage tank petroleum clean-up account, may contract with experts, including, but not limited to, attorneys and medical professionals, to better evaluate and defend against claims and negotiate third party claims. The costs of the board for experts shall not be charged to the amount allocated to the Department of Environmental Protection pursuant to section 22a-449c.

(b) (1) For all work or services performed or materials provided after October 1, 2004, the board shall not order payment or reimbursement from the account for any cost paid or incurred, unless the application or preauthorization request seeking payment or reimbursement is received by the board within one hundred eighty days of the date that such work or services were rendered or performed or the date that any material was provided.

(2) For all work or services performed or materials provided before October 1, 2004, the board shall not order payment or reimbursement from the account for any cost paid or incurred, unless the application or preauthorization request seeking payment or reimbursement is received by the board on or before April 1, 2005.

(3) For purposes of this subsection, work or services shall be deemed rendered or performed on the date such work is rendered or performed and a material shall be deemed provided on the date a material is made available for use.

(c) The Attorney General, upon the request of the board, may institute an action in the superior court for the judicial district of Hartford to recover the amounts specified in this section from the responsible party if: (1) [prior] Prior to the occurrence of the release, the underground storage tank or underground storage tank system from which the release emanated was required by regulations adopted under section 22a-449, as amended, to be the subject of a notification to the Commissioner of Environmental Protection but the responsible party knowingly and intentionally failed to notify the commissioner; (2) the release results from a reckless, wilful, wanton or intentional act or omission of a responsible party; or (3) the release occurs from an underground storage tank or system which is 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. All costs to the state relating to actions to recover such payments, including but not limited to, reasonable attorneys' fees, shall initially be paid from the underground storage tank petroleum clean-up account. In any recovery the board is entitled to recover from a responsible party (A) all payments made by the board with respect to a release or suspected release, including, but not limited to, payments to third parties, (B) all payments made by the Department of Environmental Protection pursuant to subsection (d) of this section with respect to a release or suspected release, (C) interest on such payments at a rate of ten per cent per year from the date such payments were made, and (D) all costs of the state relating to actions to recover such payments, including, but not limited to, reasonable attorneys' fees. All actions brought pursuant to this section shall have precedence in the order of trial, as provided in section 52-191.

[(c)] (d) The review board shall render its decision not more than ninety days after receipt of an application from a responsible party or a third party provided, in the case of a second or subsequent application, the board shall render its decision not more than forty-five days after receipt of such application. A copy of the decision shall be sent to the Commissioner of Environmental Protection and the applicant or responsible party by certified mail, return receipt requested. The Commissioner of Environmental Protection or any person aggrieved by the decision of the board may, within twenty days from the date of issuance of such decision, request a hearing before the board in accordance with the provisions of chapter 54. After such hearing, the board shall consider the information submitted to it and affirm or modify its decision on the application. A copy of the affirmed or modified decision shall be sent to the applicant or responsible party by certified mail, return receipt requested.

[(d)] (e) Whenever the commissioner determines that as a result of a release, as defined in section 22a-449a, or a suspected release, a clean-up is necessary, including, but not limited to, actions to prevent or abate pollution or a potential source of pollution and to provide potable drinking water, the commissioner may undertake such actions using not more than one million dollars from the underground storage tank petroleum clean-up account for each release or suspected release from an underground storage tank or an underground storage tank system for which the responsible party is the state or 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. In addition, if a responsible party refuses to pay the first ten thousand dollars of third party claims, and has not already paid ten thousand dollars of costs resulting from the release or suspected release, the commissioner shall, upon order of the board pursuant to this section, make payment or reimbursement of the first ten thousand dollars of third party claims, provided (1) no more than ten thousand dollars of third party claims shall be paid pursuant to this subsection for each release or suspected release from an underground storage tank system for which the responsible party is the state or 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, and (2) that the board shall be entitled to recover such ten thousand dollars, notwithstanding the existence of the conditions specified in subdivisions (1) to (3), inclusive, of subsection (b) of this section.

Approved on June 8, 2004