§ 35-11-1424 — Corrective action account created; use of monies; cost recovery

(a) There is created the corrective action account. This
account is intended to provide for financial assurance coverage
required by federal law and shall be used by the department to
take corrective action in response to a release and to remediate
orphan sites and solid waste landfills. The department shall use
monies from the corrective action account as appropriated by the
legislature for the administration of this article, W.S. 35-11-
533 through 35-11-537 and 35-11-1701. Interest earned by this
account shall be deposited in the general fund. Monies in the
corrective action account may also be used for the state
drinking water and water pollution control revolving loan
accounts pursuant to W.S. 16-1-201 through 16-1-207 and 16-1-301
through 16-1-308. Except as provided in subsection (p) of this
section, and contingent on availability of money in the
corrective action account, the director shall distribute monies
in the corrective action account to the solid waste landfill
remediation account created by W.S. 35-11-535 and the orphan
site remediation account created pursuant to W.S. 35-11-1701 on
July 1 of each specified year in an amount up to:
(i) 2019-one million dollars ($1,000,000.00) to the
solid waste landfill remediation account and one million dollars
($1,000,000.00) to the orphan site remediation account;
(ii) 2020-four million dollars ($4,000,000.00) to the
solid waste landfill remediation account and one million dollars
($1,000,000.00) to the orphan site remediation account;
(iii) 2021 – five million dollars ($5,000,000.00) to
the solid waste landfill remediation account and one million
dollars ($1,000,000.00) to the orphan site remediation account;
(iv) 2022 – five million dollars ($5,000,000.00) to
the solid waste landfill remediation account and one million
dollars ($1,000,000.00) to the orphan site remediation account;
(v) 2023 – six million dollars ($6,000,000.00) to the
solid waste landfill remediation account and one million dollars
($1,000,000.00) to the orphan site remediation account;
(vi) 2024 through 2028 – provided that in no event
shall monies plus net accounts receivable in the corrective
action account on July 1 of any year of this period be less than
two million dollars ($2,000,000.00), the director shall:
(A) Determine expected expenditures from the
corrective action account for the underground storage tank
program for the next fiscal year and retain monies equal to that
amount in the corrective action account;
(B) Deposit up to one million dollars
($1,000,000.00) from the remainder of the monies in the
corrective action account into the orphan site remediation
account; and
(C) Deposit the remainder of the monies from the
corrective action account into the solid waste landfill
remediation account.
(vii) 2029 and each year thereafter-the director
shall determine expected expenditures from the corrective action
account for the underground storage tank program for the next
fiscal year and retain monies equal to that amount in the
corrective action account, with the remainder of the monies
being divided and deposited at the director's discretion into
the solid waste landfill remediation account and the orphan site
remediation account, but in no event shall monies plus net
accounts receivable in the corrective action account on July 1
of any year be less than two million dollars ($2,000,000.00).
(b) The department shall establish priority lists of sites
contaminated by tanks. The priorities shall be based on public
health, safety and welfare and environmental concerns. The
council after recommendation from the director of the
department, the administrator of the various divisions and their
respective advisory boards shall promulgate rules and
regulations for defining priorities.
(c) The department shall use corrective action account
monies to take corrective actions at sites contaminated by
tanks. The department shall take corrective actions based on
the sites' placement on the priority list. However, if an
emergency threat to public health, safety and welfare or to the
environment exists, or costs of cleanup may be significantly
reduced, a site may be moved up on the priority list for
immediate corrective action.
(d) For a site to be eligible for use of monies in the
corrective action account, the owner or operator of the site
shall, if required, pay the tank fee required by W.S.
35-11-1425, conduct a minimum site assessment, as defined by
rule and regulation, and, if contamination is found, take action
to prevent continuing contamination. The department shall
notify all owners and operators on record at the department of
the minimum site assessment requirements. Sites which do not
meet the eligibility requirements specified in this subsection
shall not be eligible for use of any monies in the corrective
action account. Owners and operators of these ineligible sites
shall not use the corrective action account for proof of
financial assurance for the sites. Pending determination of the
site's eligibility, the department may use corrective action
account monies for corrective actions at a contaminated site.
(e) Sites where tanks have been removed or abandoned in
accordance with any government regulations effective at the time
of abandonment may become eligible for use of corrective action
account monies if the person who owns the site pays a two
hundred dollar ($200.00) annual fee per site and conducts a site
assessment as required by subsection (d) of this section. The
annual fee per site required under this subsection shall be paid
for a maximum of ten (10) years and shall then lapse until
corrective action is undertaken by the department. Failure to
meet these requirements may subject the person who owns the site
to suit for corrective action or cost recovery. The fee
collected under this subsection shall be deposited in the
corrective action account. The department shall notify all the
owners and operators who are on record at the department who
have removed or properly abandoned a tank of the provisions of
this subsection.
(f) If, after due diligence, no owner or operator can be
found, a contaminated site shall be placed on the priority list
in appropriate rank with other sites. If an owner or operator
of a site which is not in compliance and the owner or operator
refuses to comply with subsection (d) of this section is
discovered, that site shall be considered as ineligible for use
of corrective action account monies and shall be treated as
defined in subsection (g) of this section.
(g) The department may, by an action brought by the
attorney general against an owner or operator, recover
reasonable and necessary expenses incurred by the department in
taking a corrective action. These recoverable expenses include
but are not limited to costs of investigating a release,
administrative costs and reasonable attorney fees. The
department's certification of expenses is prima facie evidence
the expenses are reasonable and necessary. Expenses recovered
under this section shall be deposited in the corrective action
account unless otherwise required by state or federal law. The
department may sue for recovery of expenses only if:
(i) The owner or operator has failed to take the
actions required for that site in subsection (d) of this
section; or
(ii) The owner or operator had tank insurance for
that site at the time of the release. However no such recovery
under this subsection may exceed the limits or coverage of the
insurance policy in question.
(h) The state has a right of subrogation to any insurance
policies in existence at the time of the release to the extent
of any rights the owner may have had under that policy. This
right of subrogation shall apply regardless of the owner's
eligibility to use corrective action account monies under
subsection (d) of this section. In implementing this section
the department shall:
(i) Notify all known owners and operators, past and
present, of sites where contamination from a tank is known to
exist and request information relating to any insurance policies
they possess or possessed at the time of release that may
provide coverage for corrective action or cleanup of the
contamination at the site;
(ii) Notify all insurance companies which have been
identified to the department pursuant to W.S. 35-11-1419 and may
have issued insurance policies that provide coverage for
contamination from tanks and request copies of any such
policies. In notifying insurance companies the department shall
provide the insurance company with the name of all known owners,
past and present, and the legal description of the site upon
which the tank is or was located. The department notification
shall require each insurance company to notify the department
whenever there is a change in the insurance policy, including
cancellation.
(j) Nothing in this section shall be construed to
authorize payments for the repair, removal or replacement of any
tank or equipment.
(k) Nothing in this section shall be construed to
authorize payments or commitments for payments in amounts in
excess of the monies available.
(m) Within thirty (30) days after receipt of notification
that the corrective action account has become incapable of
paying for assured corrective actions, the owner or operator
shall obtain alternate financial assurance.
(n) Any person or insurance company notified by the
department under paragraph (h)(i) or (ii) of this section shall
provide the requested information to the department within
thirty (30) days of receipt of the notification. In addition to
other remedies provided for in this act, failure of any
insurance company to provide copies of the requested policies
shall result in the statute of limitations provided in
subsection (o) of this section being tolled for any action the
department may bring in subrogation until such time as the
policy is discovered.
(o) Notwithstanding any other applicable period of
limitation, upon notification by any owner, operator or
insurance company of any insurance coverage in existence, the
department shall have five (5) years to commence any action for
the recovery of proceeds under the applicable policy.
(p) The director is authorized to withhold distributions
from the corrective action account to the solid waste
remediation account and the orphan site remediation account as
provided in subsection (a) of this section in the event of:
(i) An emergency involving a leaking underground
storage tank which requires immediate corrective action which
will require an expenditure of monies in excess of the monies
available in the corrective action account; or
(ii) Monies in the account are less than the amount
required by federal law to provide for financial assurance
coverage or adequate leaking underground storage tank
remediation.
(q) The director shall submit a report to the joint
minerals, business and economic development interim committee by
June 15, 2019 and by June 15 of every year thereafter,
describing the amount to be withheld in the corrective action
account pursuant to subsections (a) and (p) of this section, and
the factors used in making those determinations, and describing
the distributions of monies from the corrective action account
to the solid waste landfill remediation account and the orphan
site remediation account.
(r) Repealed by Laws 2018, ch. 12, § 2.