§ 17-327.3 — Reimbursement for allowable costs from an eligible

Oklahoma § 17-327.3

• Jurisdiction: Oklahoma
• Title 17: Corporation Commission

Text

release. A. The Oklahoma Petroleum Storage Tank Indemnity Program shall provide reimbursement to eligible persons for allowable costs resulting from an eligible release pursuant to the provisions of this section. B. 1. The Oklahoma Petroleum Storage Tank Indemnity Fund: a. may require that any corrective action taken as a result of an eligible release, other than corrective action taken in an emergency situation, may be made by the competitive bid of at least two bidders. Acquisition or contracts or subcontracts for corrective action or for labor or equipment comprising a single task or scope of work which exceeds Two Thousand Five Hundred Dollars ($2,500.00) from any one vendor or subcontractor for any one site shall be awarded to the lowest and best bidder, b. shall require that an eligible person or a property owner whose off-site property has been contaminated by a release shall not retain an environmental consultant to conduct the remediation of the release in which the eligible person, property owner or impacted party has more than a ten-percent interest ownership, is an employee, or is an officer of the environmental consultant, and c. may require the owner or operator to submit documentation evidencing proof of such competitive bidding. 2. Any competitive bid submitted pursuant to this section shall be accompanied by the sworn noncollusion statement contained in Section 85.22 of Title 74 of the Oklahoma Statutes, modified in wording as appropriate. In the event bids are not obtained pursuant to this subsection, expenditures made without bids shall only be reimbursed by the amount determined to be the reasonable value of the equipment purchased or the task or scope of work performed. 3. Professional engineering, geological, land surveying and other professional services or services provided by a Commission- licensed storage tank environmental consultant required for investigation and the preparation of corrective action plans or proposed corrective action plans and oversight of corrective action shall be selected based upon professional qualifications and technical experience of the consultant at a fair and reasonable fee as negotiated between the eligible person and his or her environmental consultant. C. The eligible person responsible for taking the corrective action shall keep and preserve suitable records of hydrological and other site investigations and assessments, site rehabilitation plans, contracts and contract negotiations, and accounts, invoices, sales tickets, or other payment records from purchases, sales, leases, or other transactions or claims involving costs actually incurred related to such corrective action or injury or damage. Such records shall be made available upon request to agents and employees of the Oklahoma Petroleum Storage Tank Indemnity Fund during regular business hours, and at other times upon written request. In addition, the employees, agents and representatives of the Oklahoma Petroleum Storage Tank Indemnity Fund may from time to time request submission of such site-specific information as it may require. All records of costs actually incurred shall be certified by affidavit to the Oklahoma Petroleum Storage Tank Indemnity Fund as being true and correct. D. 1. a. The Administrator shall deny or approve and pay, in whole or in part, the application for reimbursement on behalf of or to eligible persons and shall complete initial reimbursement within ninety (90) days after receipt of the complete application including but not limited to all requisite supporting documents, unless the time for review is extended by the Administrator giving the applicant written notice of intent to extend no later than eighty (80) days from the date of receipt of the application. The total review period shall not be extended beyond one hundred twenty (120) days from the date of receipt of the complete application including but not limited to all requisite supporting documents, unless otherwise extended by written mutual agreement of the applicant and the Administrator. b. The Administrator, within thirty (30) days of receipt of the complete application including but not limited to all requisite supporting documents, shall determine whether such person is eligible for reimbursement and shall notify such applicant as to his or her eligibility in writing. c. An application deemed to be incomplete shall not trigger the time allowed for review. 2. Disposition of an application shall be provided to the applicant in writing, accompanied by a written explanation setting forth in detail the reason or reasons for the approval or denial of a claim, in whole or in part. If the Administrator fails to make a determination on an application or payment within the time provided or denies an application, or if a dispute otherwise arises with regard to reimbursement, the applicant may seek appropriate legal remedies. 3. For claims submitted subsequent to submittal of the application, the Administrator shall have thirty (30) days from the date of receipt of the supplemental claim in which to approve or deny the supplemental claim. If a supplemental claim is made subsequent to the date of the application but prior to the completion of the review of the application, the thirty-day review period shall not commence until the Oklahoma Petroleum Storage Tank Indemnity Fund has completed its review of the application. This time for review may be extended by the Administrator giving the applicant written notice of intent to extend no later than twenty (20) days from the date of receipt of the claim. 4. For eligible releases requiring extensive corrective action, the Administrator is authorized to make an initial payment and periodic supplemental payments for reimbursements to eligible persons for ongoing reimbursable costs actually incurred. An eligible person intending to file for supplemental payments for reimbursement shall submit work plans for implementation of the corrective action plan approved by the Commission's regulatory program pursuant to the Oklahoma Petroleum Storage Tank Consolidation Act, or for other work which is proposed to be performed. Such work plans shall include, but not be limited to, the work to be completed, schedule of actions to be taken and estimates of costs to be reimbursed. Such information may be submitted with the application for reimbursement or whenever appropriate. Such work plans shall be submitted for informational purposes only. After approval of the application, the Administrator shall have thirty (30) days from the date of receipt of a claim for supplemental payment in which to approve and pay or deny the supplemental claim. The thirty-day time for review may be extended by the Administrator for an additional thirty (30) days upon giving the applicant written notice of such intent to extend no later than twenty (20) days from the date of receipt of the claim. If the claim for payment is included with the application for reimbursement, paragraph 1 of this subsection shall control. E. 1. For reimbursement to any person the following conditions apply: a. the person claiming reimbursement must be an eligible person, b. the eligible person must have been in substantial compliance with the applicable rules promulgated pursuant to the provisions of the Oklahoma Petroleum Storage Tank Indemnity Fund and the Oklahoma Storage Tank Consolidation Act at the time of the reporting of the release, c. allowable costs resulting from a release must have been incurred on or after December 23, 1988, d. the Commission determined that the release no longer poses a threat to the public health and welfare or the environment, e. the Commission was given adequate notice by such owner or operator of the release pursuant to Section 309 of Title 17 of the Oklahoma Statutes, and f. such owner or operator, to the extent possible, fully cooperated with the Commission in responding to the release. A person seeking reimbursement who has not been in substantial compliance with the applicable rules as required in subparagraph b of this paragraph or who failed to give adequate notice as required in subparagraph e of this paragraph will remain ineligible until all corrective action ordered by the Commission has been accomplished and all fines paid. Payment of fines and documentation of corrective action shall be shown by a certification signed by the Director of the Petroleum Storage Tank Division. The certificate must state that all fines resulting from noncompliance have been paid and any required corrective action has been completed and no additional enforcement actions are required. 2. For reimbursement to any person, the following conditions apply: a. the person claiming reimbursement must be an eligible person, b. the person, to the extent possible, has fully cooperated with the Commission, and c. allowable costs for any corrective action must have been incurred on or after December 23, 1988. F. Except as otherwise provided by the Oklahoma Petroleum Storage Tank Indemnity Fund, a reimbursement shall not be made to any eligible person who has received or is eligible for payment or reimbursement from any other state or federal agency or other third- party payor for the corrective action taken or the damages or the injuries associated with a release. If a state or federal agency or other third-party payor does not fully compensate the eligible person, then the eligible person may seek compensation for the uncompensated amount from the Indemnity Fund. G. 1. An eligible person shall be reimbursed from the Indemnity Fund for allowable costs in excess of the copayment of one percent (1%) of the reimbursable costs for the corrective action. Copayments shall not exceed a maximum of Five Thousand Dollars ($5,000.00). The Indemnity Fund shall charge the eligible person directly for an initial one-thousand-dollar copayment and thereafter in one-thousand-dollar increments as warranted by the progressive total case costs. When the total case cost is finalized, the Petroleum Storage Tank Indemnity Fund shall reimburse the eligible person any overpayment of the one-percent copayment. For releases that occurred prior to June 4, 2004, eligible persons shall pay the five-thousand-dollar deductible as a copayment which may be paid in installments. 2. An impacted party whose on-site or off-site property has been contaminated by a release who elects the procedure authorized by this subsection shall not be required to remit copayments in order to receive reimbursement from the Petroleum Storage Tank Indemnity Fund. The impacted party or adjacent owner submits to the jurisdiction of the Commission by applying for Indemnity Fund reimbursement. 3. Reimbursements shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00) per occurrence, and: a. Four Million Dollars ($4,000,000.00) annual aggregate for owners of one to one hundred storage tank systems, or b. Five Million Dollars ($5,000,000.00) annual aggregate for owners of more than one hundred storage tank systems. The reimbursement limits in this paragraph shall not include funds expended on city, county, state or political subdivision property where the city, county, state or political subdivision is an impacted party or adjacent property owner. 4. Reimbursement shall not be made from the Petroleum Storage Tank Indemnity Fund pursuant to this section until the Administrator has determined that the costs for which reimbursement is requested were actually incurred and were reasonable. H. The Petroleum Storage Tank Indemnity Fund shall cover corrective action taken and other actual physical damage caused by an eligible release. The Petroleum Storage Tank Indemnity Fund shall also cover any medical injuries incurred as a result of the eligible release to persons other than employees of the eligible person of the storage tank system or their agents and independent contractors retained to perform any such corrective action. The Petroleum Storage Tank Indemnity Fund shall not be used to: 1. Recover payments for loss of time; 2. Recover payment of costs which may be associated with but are not integral to corrective action such as the cost of renovating, removing or disposing of storage tanks unless the removing of any petroleum storage tanks, concrete, concrete accessories, lines, dispensers or other site improvements is necessary as required by a corrective action plan approved by the Commission's regulatory program; 3. Pay for punitive damages from any civil action resulting from the eligible release; 4. Recover costs for loss of business and taking of property associated with the corrective action; or 5. Pay legal expenses. I. The right to apply for reimbursement and the receipt of reimbursement does not limit the liability of an owner or operator for damages, injuries or the costs incurred as a result of an eligible release. J. The right to file the initial application, supplemental claims, and resubmittals for reimbursement and the right to certify that costs are true, correct and actually incurred shall not be assigned to a person rendering services for corrective action on the subject site. K. Any person who prevails in an action brought pursuant to the Oklahoma Petroleum Storage Tank Indemnity Fund to recover disallowed claims upon an application, supplemental claim or resubmittal requesting reimbursement shall be entitled to recover interest, the costs of the action and attorney fees. Costs of the action shall include filing fees, administrative costs, witness fees and expenses related to the proceeding. L. 1. In any case that has been determined to be eligible for reimbursement from the Petroleum Storage Tank Indemnity Fund, a property owner whose property has been contaminated by an eligible release may remediate his or her own property and make direct application to and receive reimbursement from the Petroleum Storage Tank Indemnity Fund for any of the following: a. the costs of investigation, b. participation in the determination of activities to be conducted upon the site, c. corrective action, and d. remediation of his or her property. 2. Reimbursement shall be subject to the same requirements as requests for reimbursement made by the eligible person on such sites and shall be handled in the same manner as other sites which have adjacent release or overlapping or commingled plumes. The amount reimbursed to the property owner and eligible person shall not exceed the statutory limits of subsection G of this section. M. In the event the Petroleum Storage Tank Indemnity Fund fails to reimburse a claim as provided by this section, any person who prevails in an action brought pursuant to the Oklahoma Petroleum Storage Tank Release Indemnity Program to recover claims disallowed by an administrative action of the Oklahoma Petroleum Storage Tank Indemnity Fund upon an application, supplemental claim or resubmittal requesting reimbursement shall be entitled to receive interest upon such claim at the rate provided for in subsection I of Section 727 of Title 12 of the Oklahoma Statutes. N. 1. Claims for reimbursement pursuant to the Petroleum Storage Tank Indemnity Fund must be made within two (2) years of June 9, 1998, or two (2) years after site closure, whichever is later. 2. Eligible persons should be encouraged to submit claims for reimbursement as the costs are incurred and in the order they are incurred. However, the right to submit a claim or the time during which to submit a claim for reimbursement shall not be limited or restricted except as provided in this subsection. 3. All claims, including but not limited to resubmitted claims, shall be evaluated by the Petroleum Storage Tank Indemnity Fund under the system of evaluation employed by the Indemnity Fund at the time the costs were incurred. O. 1. The Petroleum Storage Tank Indemnity Fund is authorized to enter into contracts for site remediation or corrective action which may be performance-based. Parties to such contracts shall be the eligible person, the off-site owner, the impacted party, the licensed environmental consultant and the Petroleum Storage Tank Indemnity Fund which may guarantee the remediation or corrective action. Each party must execute the contract before it is effective. Costs of equipment used in the performance-based contract may be reimbursed separate and apart from the performance- based contract as determined by the Administrator. 2. If: a. an owner or operator is not available and a storage tank system has made a release into the environment, or b. where there is a suspicion of a release onto any property where tanks are located and/or onto property proximate thereto, or where tanks are located and a site assessment is necessary to confirm a release or perform tank closure, and c. such property is located within the limits of the town, city or political subdivision, the town, city or political subdivision may obtain assignments from property owners in order to assume the rights of an eligible party for the purpose of reimbursement of the costs associated with the assessment, investigation and remediation of any site. 3. The Administrator of the Petroleum Storage Tank Indemnity Fund may also designate a town, city or political subdivision to be an eligible party for the purpose of reimbursement of the costs associated with the assessment, investigation and remediation of any site. 4. If the town, city or political subdivision has title to the property or is the recipient of proceeds from a sale or auction of the property, the town or city shall reimburse the Petroleum Storage Tank Indemnity Fund for any required copayment within three (3) years from the closure of the case. 5. Terms of pay-for-performance contracts shall include, but not be limited to, the total amount to be paid for completion of the remediation or corrective action provided for by the contract and the length of time necessary to implement and complete the remediation or corrective action. Performance payments under pay- for-performance contracts shall be based upon the actual reduction of contamination upon the site being remediated. For those sites upon which it is estimated that remediation will take more than six (6) months and will require the installation and operation of a mechanical remediation system, payments under such contracts for the remediation to be accomplished by such system shall be as follows: a. twenty percent (20%) of the total contract price for the first twenty-five-percent reduction in contamination to be accomplished by such system, b. an additional twenty percent (20%) of the total contract price, for a total of forty percent (40%) for the next twenty-five percent (25%), for a total fifty- percent reduction in contamination to be accomplished by such system, c. an additional twenty percent (20%) of the total contract price, for a total of sixty percent (60%) for the next first twenty-five percent (25%), for a total seventy-five-percent reduction in contamination to be accomplished by such system, d. an additional twenty percent (20%) of the total contract price, for a total of eighty percent (80%) for the next first twenty-five percent (25%), for a total one-hundred-percent reduction in contamination to be accomplished by such system, and e. with a final payment of the remaining twenty percent (20%) of the contract price to be paid after the site remains clean for six (6) months. 6. Any environmental consultant or company who fails to complete corrective action or remediation as provided in a pay-for- performance contract, or who has failed or fails, before requesting and receiving the first payment under a pay-for-performance contract, to install equipment upon a site which was proposed or which was to be installed whenever possible, or who in any other manner materially breaches a pay-for-performance contract shall be prohibited from entering into another pay-for-performance contract or purchase order with the Indemnity Fund for a period of three (3) years and shall forfeit any rights to or interest in the equipment to the Indemnity Fund if the equipment was: a. paid in advance by the Indemnity Fund, and b. allocated for a pay-for-performance site. P. The Oklahoma Petroleum Storage Tank Indemnity Fund is authorized to enter into purchase orders for the performance of corrective action or various tasks or scopes of work to be performed upon a site as is prudent. Each purchase order shall establish an amount to be paid for the completion of a particular corrective action, task or scope of work. Such purchase orders shall be entered into between the Petroleum Storage Tank Indemnity Fund and the eligible person or his or her environmental consultant. The Indemnity Fund and the eligible person or his or her consultant shall conduct negotiations in good faith. Rules promulgated to implement this subsection shall not place any restrictions upon the negotiation process by limiting the number of revisions which may be submitted or restricting the time period during which they may be submitted. Q. In evaluating and determining the amount of reimbursement to be paid upon a claim, the Indemnity Fund shall consider the reasonable cost of the task or scope of work that was reasonable and completed and shall be based upon standard billing rates and practices for environmental services as normally billed by such professionals, contractors or other service providers. If the overall total cost of performing a particular task or scope of work is reasonable, the Indemnity Fund shall fully reimburse the total cost of the particular task or scope of work performed. R. 1. When a claim submitted for first reimbursement consideration is disallowed in whole or in part by the Administrator of the Petroleum Storage Tank Indemnity Fund, an applicant shall have ninety (90) days to resubmit the disallowed claim for reconsideration. Unless otherwise authorized by the Administrator of the Petroleum Storage Tank Indemnity Fund, resubmittal of a claim that has been disallowed in whole or in part shall only be allowed one time. 2. Except as otherwise provided by this paragraph, if the disallowed claim is not resubmitted within ninety (90) days from the date of the disallowance, the claim shall no longer be eligible for reimbursement from the Petroleum Storage Tank Indemnity Fund. An action by the applicant disputing a disallowed claim shall be commenced within one (1) year of the date of the last disallowance and shall be brought for an administrative hearing before the Commission. 3. Any applicant that, prior to November 1, 2004, has incurred a disallowance of a claim in whole or in part and has not resubmitted the disallowed claim for further consideration has until February 28, 2005, to resubmit the disallowed claim for such consideration. After February 28, 2005, the claim shall be deemed denied and shall no longer be eligible for reconsideration or reimbursement from the Petroleum Storage Tank Indemnity Fund. 4. The Director of the Petroleum Storage Tank Division may consider hardship exceptions such as, but not limited to, active military duty, to the time limits contained in this subsection.

Legislative History

Added by Laws 2018, c. 27, § 27, eff. Nov. 1, 2018.