§ 68-215-111 — Use of fund

(a) The fund shall be available to the board and the commissioner for expenditures for the purposes of providing for the investigation, identification, and for the reasonable and safe cleanup, including monitoring and maintenance, of petroleum sites and locations from which underground storage tank systems have been removed within the state as provided in this chapter. (b) The fund may also be used by the commissioner as a source of federal matching funds for the state in the petroleum underground storage tank program. (c) The commissioner may enter into contracts and use the fund for those purposes directly associated with identification, investigation, containment and cleanup, including monitoring and maintenance prescribed above, including: (1) Hiring consultants and personnel; (2) Purchase, lease or rental of necessary equipment; and (3) Other necessary expenses. (d) The fund may be used for the administrative costs of the underground storage tank program and be included in the department's annual budget request to the general assembly. (e) The fund may be used to provide a mechanism to meet the financial responsibility requirements for owners or operators, or both, of petroleum underground storage tanks for cleanup of contamination and third-party claims due to bodily injury or property damage, or both, caused by releases from petroleum underground storage tanks. (f) (1) The fund may be used to provide for cleanup of contamination in accordance with conditions for eligibility and coverage of releases established in this part and in rules of the board. (2) Petroleum underground storage tanks for which notification has been received by the commissioner are eligible for reimbursement from the fund for the costs of cleanup of contamination caused by releases from the tanks; however, before costs related to a particular release may be reimbursed, all of the applicable requirements of this part and the rules must be met. (3) The board is authorized to promulgate rules that establish the following: (A) The amount of the deductible that must be incurred by either the tank owner or operator or the owner of the petroleum site at the time of corrective action before the tank owner or operator or the owner of the petroleum site is eligible to receive reimbursement from the fund. Notwithstanding this authority, in no event shall the board set the amount of this required deductible at a level greater than thirty thousand dollars ($30,000) per occurrence; and (B) A system of incentives to provide for reduced required deductible amounts in order to encourage tank owners to use technologies or management practices that go beyond the minimum requirements related to release detection and prevention for tanks and piping. In order to qualify for the incentives, the technologies or management practices must be found by the board to be proven methods of significantly enhancing prevention of releases or reducing the detection timeframe for releases. (4) The amount of the deductible that must be incurred by either the tank owner or operator or the owner of the petroleum site, before the tank owner or operator or the owner of the petroleum site is eligible to receive reimbursement from the fund for an occurrence reported to the department on or after July 1, 2005, shall be twenty thousand dollars ($20,000) per occurrence; provided, however, that, pursuant to subdivision (f)(3)(A), the board may promulgate rules raising the amount of the deductible to a maximum of thirty thousand dollars ($30,000) per occurrence. In addition, the board is authorized to set the required deductible at lower amounts, if the board determines that the condition of the fund warrants setting it at lower amounts. (5) (A) The fund shall be responsible for up to a maximum of one million dollars ($1,000,000) of cleanup costs. The sum of the deductible and the maximum reimbursement shall not exceed one million dollars ($1,000,000). The fund shall be responsible for cleanup of contamination due to releases from petroleum underground storage tanks on a per site per occurrence basis. (B) Notwithstanding subdivision (f)(5)(A), the fund shall be responsible for up to a maximum of two million dollars ($2,000,000) of cleanup costs for sites still undergoing corrective action on July 1, 2015, and releases that occur on or after July 1, 2015. The sum of the deductible and the maximum reimbursement shall not exceed two million dollars ($2,000,000). The fund shall be responsible for cleanup of contamination due to releases from petroleum underground storage tanks on a per-site, per-occurrence basis. (6) Unless it has been determined by the commissioner that the expenditure of fund dollars for removal, replacement, or repair of property improvements, including, but not limited to, petroleum dispensing equipment, canopies, signage, buildings and out buildings would result in a reduction of the total cost of cleanup activities at a petroleum site from what would be required otherwise, neither the fund nor the deductible for cleanup shall be used for the repair, replacement, or maintenance of petroleum underground storage tanks or property improvement on which the petroleum underground storage tanks are located, including, but not limited to: (A) Underground storage tank repair; (B) Underground storage tank replacement; (C) Repair or maintenance of associated lines; and (D) Replacement of asphalt or concrete. (7) (A) If there is evidence of a suspected or a confirmed release on or after July 1, 2004, in order for the tank owner, tank operator or petroleum site owner to receive reimbursement from the fund, an application for fund eligibility shall be filed: (i) Within ninety (90) days of the discovery of evidence of a suspected release which is subsequently confirmed in accordance with the rules promulgated pursuant to this part; or (ii) Within sixty (60) days of a release which was identified in any manner other than the process for confirmation of a suspected release stated in the rules promulgated pursuant to this part. (B) The tank owner or tank operator shall send notification to the petroleum site owner by certified mail, return receipt requested, within seven (7) days of confirmation of a release. Failure to comply with the applicable deadline of subdivision (f)(7)(A)(i) or (f)(7)(A)(ii) shall make the release ineligible for reimbursement from the fund. (8) On or after July 1, 2004, all applications for payment of costs of cleanup shall be received by the division within one (1) year of the performance of the task or tasks covered by that application in order to be eligible for payment from the fund. (g) (1) Petroleum underground storage tanks for which notification has been received by the commissioner are eligible for reimbursement from the fund for third-party claims involving bodily injury or property damage caused by releases from petroleum underground storage tanks; however, before payment for the claims related to a particular release may be paid, all of the applicable requirements of this part and the rules promulgated by the board must be met. (2) The board is authorized to promulgate rules that establish the amount of the deductible for third-party claims for bodily injury or property damage that must be incurred by either the tank owner or operator or the owner of the petroleum site subject to the claim, before the amount of the claim in excess of the deductible may be paid by the fund. Notwithstanding this authority, in no event shall the board set the amount of this required deductible at a level greater than thirty thousand dollars ($30,000) per occurrence. (3) The amount of the deductible for the third-party claims for the tank owner or operator or the owner of any petroleum site for an occurrence reported to the department on or after July 1, 2005, shall be twenty thousand dollars ($20,000); provided, however, that, pursuant to subdivision (g)(1), the board may promulgate rules setting the amounts of financial responsibility at greater amounts, up to a maximum of thirty thousand dollars ($30,000) per occurrence. In addition, the board is authorized to set the required deductible at lower amounts, if the board determines that the condition of the fund warrants setting it at lower amounts. (4) The fund shall be responsible for court awards involving third-party claims up to a maximum of one million dollars ($1,000,000). The sum of the deductible and the maximum reimbursement shall not exceed one million dollars ($1,000,000). The fund shall be responsible for third-party claims involving bodily injury or property damage, or both, caused by releases from petroleum underground storage tanks on a per site per occurrence basis. All claims against the fund for third-party damages must have been awarded in a court of suitable jurisdiction. (h) All claims against the fund are clearly obligations only of the fund and not of the state, and any amounts required to be paid under this part are subject to the availability of sufficient moneys in the fund. The full faith and credit of the state shall not in any way be pledged or considered to be available to guarantee payment from such fund. (i) Notwithstanding any provision of this part, tanks that are owned by the state of Tennessee are not eligible for reimbursement for either cleanup costs or third party claims.

Legislative History

Amended by 2015 Tenn. Acts, ch. 292,s 7, eff. 7/1/2015. Acts 1988, ch. 984, § 13; 1990, ch. 855, § 5; 1990, ch. 1012, §§ 4-6; 1991, ch. 483, § 1; T.C.A., § 68-53-111; Acts 1992, ch. 906, § 1; 1995, ch. 65, § 1; 2002, ch. 821, §§ 5 - 7; 2004, ch. 925, §§ 7, 8; 2005, ch. 283, §§ 5 - 7; 2008, ch. 794, §§ 7, 8; 2010, ch. 903, § 1.