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34A-13 PETROLEUM INSPECTION AND RELEASE COMPENSATION
CHAPTER 34A-13

PETROLEUM INSPECTION AND RELEASE COMPENSATION

34A-13-1      Definition of terms.
34A-13-2, 34A-13-3. Repealed.
34A-13-4      Immediate corrective action by department.
34A-13-5      Joint adoption of response procedure.
34A-13-6      Repealed.
34A-13-7      Furnishing of information to director--Denial of benefits based on failure to furnish information.
34A-13-8      Examination of records--Entering upon public or private property--Denial of benefits based upon failure to allow access to property and documents.
34A-13-8.1      Reimbursement by fund for corrective action costs--Limitation--Costs for releases.
34A-13-8.2      Percentage of deductible waived for certain releases.
34A-13-8.3      Limitation on reimbursement for release sites.
34A-13-8.4      Defense costs of certain third-party claims.
34A-13-8.5      Reimbursement to covered party.
34A-13-9      Cost of corrective action--Amount of reimbursement--Exceptions.
34A-13-9.1      Conditions for reimbursement.
34A-13-9.2      Subrogation of fund--Right to recover.
34A-13-10      Avoidance of liability by conveyance or agreement prohibited--Exceptions.
34A-13-11      Recovery of expenses in civil action--Prima facie evidence of reasonable expenses--Disposition of recovered funds.
34A-13-12      Administrative, civil, injunctive, and criminal remedies allowed where pursued by department--Exhaustion of administrative remedies not required.
34A-13-12.1      Administrative, civil, injunctive, and criminal remedies allowed where pursued by director--Exhaustion of administrative remedies not required.
34A-13-13      Repealed.
34A-13-14      Petroleum Release Compensation Board--Appointment of members--Terms.
34A-13-15      Employment of staff--Costs and appropriations--Delegation of authority.
34A-13-16      Adoption of rules and procedures.
34A-13-16.1      Training and testing of persons who perform services to be reimbursed.
34A-13-17      Attachment of fund to Department of Environment and Natural Resources--Reimbursement of costs.
34A-13-18      Deposit and crediting of revenue.
34A-13-19      Repealed .
34A-13-20      Petroleum release compensation and tank inspection fee--Amount of fee--Allocation of revenue.
34A-13-20.1      Transfer of funds to and from state highway fund.
34A-13-21      Repealed.
34A-13-22      Payment of fee on monthly basis--Rules.
34A-13-23      Audits of persons subject to fee.
34A-13-24      Failure to pay fee as misdemeanor--Subsequent violation as felony.
34A-13-25      Notice of suspension of benefits--Notice to department--Appeal for reinstatement of benefits--Ratification of certain suspensions and reinstatements.


34A-13-26      Administration of provisions.
34A-13-27      Fund expenditures.
34A-13-28 to 34A-13-30. Repealed.
34A-13-31      Determination of cost as actual, reasonable, and not in excess of petroleum remediation requirements--Reduction for ineligible claims.
34A-13-32      Continuous appropriation to board for making reimbursements and other purposes--Submission of administrative budget for approval.
34A-13-33      Liability of covered party not limited by reimbursement.
34A-13-34      Reimbursement paid to third party who performed cleanup not subject to attachment--Board and fund not subject to legal process, attachment.
34A-13-35      Repealed.
34A-13-36      Repealed.
34A-13-37      Repealed.
34A-13-38      Repealed.
34A-13-39      Short title.
34A-13-40      Limits of reimbursement for corrective action and third party claims.
34A-13-41      Reimbursement to licensed petroleum marketers and other tank owners.
34A-13-42      Rules for amount, terms and period of third-party reimbursement.
34A-13-43      Repealed.
34A-13-44      Repealed.
34A-13-44.1      Third-party damages--Benefits intended in or on behalf of covered party.
34A-13-45      Damage prior to April 1, 1990.
34A-13-46      Tanks at abandoned sites.
34A-13-47      Time limit for third-party claim.
34A-13-48      Private insurance as risktaker--Annual report identifying potential companies.
34A-13-49      Abandoned tank removal program created--Eligibility for participation.
34A-13-50      Scope of program.
34A-13-51      Repealed.
34A-13-52      Department responsible for tank removal and corrective actions under program--Director to make payments from fund.
34A-13-53      Promulgation of rules.
34A-13-54      Director to suspend payments except at high-risk sites when fund balance is two million dollars or less.


34A-13-1Definition of terms.

Terms used in this chapter mean:

(1)    "Abandoned site," any release site on which none of the tanks have been used for the intentional storage of petroleum after April 1, 1988;

(2)    "Asset value," with respect to valuation of amounts on deposit in or credited to any account or fund, the amount of cash on deposit in or credited to the account or fund plus the lesser of the cost or the face amount of any investments or other obligations on deposit in or credited to the account or fund;

(3)    "Backfill area," the space containing the tank system and supporting material bounded by the ground surface, the sides and bottom of the pit, and the trenches into which the product lines for the tank system were placed at the time of installation;

(4)    "Board," the Petroleum Release Compensation Board;

(5)    "Corrective action," a necessary and reasonable action taken pursuant to an approved plan to minimize, contain, eliminate, remediate, mitigate or clean up, or monitor a release, including remedial emergency measures as defined in the regulated substance cleanup act, but does not include any action taken in excess of minimum environmental standards established by the department;

(6)    "Covered party," a responsible person, an employee of a responsible person, or any person having legal custody of a responsible person's real property;

(7)    "Deductible," the ten thousand dollars, or lesser amount established by the secretary of transportation, as an exclusion from reimbursable costs incurred in a corrective action;

(8)    "Department," the Department of Environment and Natural Resources;

(9)    "Director," the director of the petroleum release compensation fund;

(10)    "Petroleum marketer," any person licensed by the Department of Revenue to sell motor fuels, special fuels, or distillates of petroleum within the state;

(11)    "Fund," the petroleum release compensation fund;

(12)    "Occurrence," any release which is discovered and identified within a twelve-month period of time and known to have originated from a release site;

(13)    "Operator," any person in control of, or having responsibility for, the operation of a tank;

(14)    "Owner," any person who holds title to, controls, or possesses any interest in a tank. However, the term does not include a person who holds an interest in a tank solely for financial security, unless, through foreclosure or other related actions, the holder of a security interest has taken possession or control of the tank;

(15)    "Person," any individual, partnership, association, public or private corporation, or other legal entity, including the United States government, an interstate commission or other body, the state, or any agency, board, bureau, office, department, or political subdivision of the state;

(16)    "Petroleum," gasoline, alcohol blended fuels, diesel fuels, aviation gasoline, jet fuel, fuel oil, kerosene, and burner oil. Products that are specifically excluded from this definition include naphtha, lubricating oils, motor oil, automatic transmission fluid, waste oil, crude oil, oil sludge, oil refuse, and alcohols other than those that have been denatured with gasoline and stored to be used as blended fuel grade ethanol;

(17)    "Reimburse," any payment made by the fund to a covered party, his assignee, or service provider for work performed or materials supplied, as part of a corrective action or third-party claim;

(18)    "Release," is any unintentional spilling, leaking, emitting, discharging, escaping, leaching, or disposing of petroleum from a tank into the environment occurring in South Dakota, but does not include discharges or designed venting allowed under adopted rules or under federal or state law or discharges arising out of war, invasion, act of a foreign enemy, hostilities, revolution, earthquake, flood, or other catastrophic disaster occurring due to nature;

(19)    "Release site," one continuous property, not separated or divided by a public road or other commonly held boundary, on which the tank or tanks which are the source of the release are located as determined at the time of discovery of the release or as modified based upon subsequent assessment;

(20)    "Responsible person," any person who is an owner or operator of a tank at any time during or after a release;

(21)    "Service provider," any person providing a service to accomplish a corrective action, including consultants, environmental consultants, engineers, environmental engineers, contractors, excavators, landfill operators, materialmen, and any other person providing goods or services to a covered party pursuant to a written agreement;

(22)    "Tank," any one or a combination of containers, vessels, and enclosures, including structures and appurtenances connected to them, that is, or has been, used to contain or dispense petroleum which is either stationary or attached to a motor vehicle. Any vessel or container, in order to be covered by this chapter, shall be used primarily or exclusively to contain petroleum. However, the term does not include any pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. chapter 24, or the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. chapter 29, as in effect on January 1, 1988, or any tank farms if title to the petroleum has not passed to a distributor licensed in South Dakota;

(23)    "Tank pulling," the removal and disposal of backfill material and a tank, excluding the contents of the tank, and the removal and replacement of the surface above the backfill area;

(24)    "Upgrade," any improvement to a release site, including improvements to its fixtures, surface characteristics, and drainage when compared with the site prior to the corrective action, made before, during, or after a corrective action.

Source: SL 1988, ch 290, § 1; SL 1989, ch 310, § 1; SL 1990, ch 292, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1991, ch 294, § 1; SL 1992, ch 260, § 1; SL 1994, ch 351, § 73; SL 1995, ch 71, § 189; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


34A-13-2
     34A-13-2, 34A-13-3.   Repealed by SL 2013, ch 166, §§ 33, 34.


34A-13-4Immediate corrective action by department.

To assure an adequate response to a release, the director may take corrective action without following the procedures in §§ 34A-13-2 and 34A-13-3 if the department determines that the release constitutes a clear and immediate danger requiring immediate action to prevent, minimize, or mitigate damage to the public health and welfare or the environment. Before taking any action pursuant to this section, the department shall make all reasonable efforts, taking into consideration the urgency of the situation, to order and permit a responsible person to take a corrective action and notify the owner of real property where the corrective action is to be taken.

Source: SL 1988, ch 290, § 4.


34A-13-5Joint adoption of response procedure.

The board and the department shall develop jointly, and adopt by rules promulgated pursuant to chapter 1-26, a response procedure for emergency and other corrective actions.

Source: SL 1988, ch 290, § 5.


34A-13-6
     34A-13-6.   Repealed by SL 2013, ch 166, § 35.


34A-13-7Furnishing of information to director--Denial of benefits based on failure to furnish information.

Any person who the director has reason to believe is a covered party, or the owner of real property where corrective action is ordered to be taken, or any person who may have information concerning a release or a corrective action, shall, if requested by the director, furnish to the director any information that person has or may reasonably obtain that is relevant to the release. Failure on the part of the covered party to do so allows denial of benefits under this chapter pursuant to subdivision 34A-13-8.5(6).

Source: SL 1988, ch 290, § 7; SL 1991, ch 294, § 2; SL 1992, ch 260, § 3; SL 2011, ch 165, § 155.


34A-13-8Examination of records--Entering upon public or private property--Denial of benefits based upon failure to allow access to property and documents.

The director may, upon presentation of official fund credentials:

(1)    Examine and copy books, papers, records, memoranda, or data of any person who has a duty to provide information to the director under § 34A-13-7; and

(2)    Enter upon public or private property for the purpose of taking action authorized by this section, including obtaining information from any person who has a duty to provide the information under § 34A-13-7, conducting surveys and investigations, and taking corrective action.

Failure by the covered party to allow access to the property and examination or copying of the documents authorized in this section allows denial of benefits under this chapter pursuant to subdivision § 34A-13-8.5(6).

Source: SL 1988, ch 290, § 8; SL 1991, ch 294, § 3; SL 1992, ch 260, § 4; SL 2011, ch 165, § 156.


34A-13-8.1Reimbursement by fund for corrective action costs--Limitation--Costs for releases.

The fund may provide reimbursement of reasonable and necessary costs to an eligible covered party for an approved corrective action in excess of ten thousand dollars and not to exceed one million dollars for releases reported after April 1, 1988. Costs incurred for releases reported prior to April 1, 1988, are eligible for reimbursement only to the extent the costs were incurred after that date. Reimbursement to an eligible covered party may not exceed one million nine hundred ninety thousand dollars within any fiscal year as provided in § 4-10-10. Reimbursement may include costs of an approved corrective action and third-party claims for releases reported after April 1, 1990. Reimbursement may not exceed the reasonable and necessary costs of cleanup under the risk-based cleanup method approved by the water management board pursuant to subdivisions 34A-2-93(13) and 34A-2-99(4).

Source: SL 1992, ch 260, § 5; SL 1995, ch 204, § 3.


34A-13-8.2Percentage of deductible waived for certain releases.

The board may waive any percentage it deems appropriate of the deductible if the release is reported after April 1, 1990, and is discovered as a result of an action designed to bring existing equipment into compliance with environmental legal requirements as set forth in §§ 34A-2-99 and 34A-2-101.

Source: SL 1992, ch 260, § 6.


34A-13-8.3Limitation on reimbursement for release sites.

Regardless of the number of releases involved, locations involved, covered parties involved, claims made, suits brought, or persons filing claims or bringing legal action, in no event may the amount of reimbursement for any release site exceed nine hundred ninety thousand dollars unless the director has determined a new occurrence has taken place and all claims for prior occurrences have been established or settled. The provisions of this chapter do not authorize the board to pay any exemplary and noneconomic damages, including damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, hedonic damages, or punitive damages on behalf of any covered party.

Source: SL 1992, ch 260, § 7.


34A-13-8.4Defense costs of certain third-party claims.

In addition to the amounts set forth in this chapter, the board shall provide the defense of third-party claims and all costs related thereto for claims of covered parties arising under this chapter, including attorneys' fees. However, the board may not provide the defense of third-party claims and costs relating thereto, including attorneys' fees, if the coverage limit under this section is exhausted by judgments, settlements, or corrective action costs prior to the commencement of a civil action by the third-party claimant against the covered party.

Source: SL 1992, ch 260, § 8.


34A-13-8.5Reimbursement to covered party.

Reimbursement from the fund may be made to a covered party only if:

(1)    The department and fund were given notice of the release as provided by rule;

(2)    At the time the release was discovered, the tank or other container was in substantial compliance with state rules and federal regulations applicable to the tank or other container;

(3)    The tank was used primarily or exclusively to contain petroleum;

(4)    The covered party applying to the fund, if subject to the tank inspection fee established in this chapter, has paid the fee and is current, or the petroleum involved in the release was supplied by a person who is subject to the tank inspection fee, or the release site is determined to be an abandoned site;

(5)    The covered party has satisfied the deductible;

(6)    The covered party is cooperating with the director and department in responding to the release;

(7)    In a corrective action, the covered party has received funding approval for a site assessment plan from the director prior to incurring costs for the assessment except as provided in § 34A-13-9.1;

(8)    In a corrective action, the covered party has conducted a site assessment, except as provided in § 34A-13-9.1;

(9)    In a corrective action, the covered party has submitted a corrective action plan and the director has authorized funding prior to the incurring of costs under the plan except as provided in § 34A-13-9.1;

(10)    In a corrective action, if the department has declared that an emergency exists and immediate abatement is necessary as provided in § 34A-13-4, even though the requirements of subdivisions (7), (8), and (9) of this section are not met until the factors causing the emergency have been addressed to the satisfaction of the department; and

(11)    The covered party has submitted his claim on forms provided by the fund and has supplied the information in the manner required by the fund.

Source: SL 1992, ch 260, § 9.


34A-13-9Cost of corrective action--Amount of reimbursement--Exceptions.

A responsible person is liable for the cost of the corrective action taken by the board or the department, including the cost of investigating the release and administrative and legal expenses of the fund. This chapter does not create any new cause of action for damages on behalf of third parties for release of petroleum products against the fund, petroleum marketer, or covered parties. Reimbursement shall be made to a covered party who qualifies pursuant to the criteria set forth in this chapter.

No reimbursement from the fund may be made to a covered party if:

(1)    Corrective action has been taken in an emergency pursuant to § 34A-13-4, and the responsible person failed to report the existence of the emergency;

(2)    The board has taken corrective action because a responsible person could not be identified or a tank has not been registered as required by law; or

(3)    The conditions of § 34A-13-8.5 have not been met.

Source: SL 1988, ch 290, § 9; SL 1989, ch 310, § 2; SL 1990, ch 292, § 4; SL 1991, ch 294, § 4; SL 1992, ch 260, § 10; SL 1995, ch 71, § 190; SL 2013, ch 166, § 36.


34A-13-9.1Conditions for reimbursement.

Reimbursement, without a corrective action plan, may be allowed for tank pulling if petroleum contamination in the backfill area exceeds standards established by the department and if the tank pulling removes petroleum contamination to department standards. No reimbursement may be provided for upgrade of a release site taken during a corrective action.

Source: SL 1990, ch 292, § 2; SL 1992, ch 260, § 11; SL 2011, ch 165, § 157.


34A-13-9.2Subrogation of fund--Right to recover.

The fund shall be subrogated to any insurer, risk retention group, or third-party payor. The fund has the right to recover, under any pollution liability insurance contract available to a covered party, any applicable contract involving the covered party, or from any tort-feasor liable to a covered party for a release or an intentional release, or any third-party payor and that right may not be waived by contract. In any action by the fund to recover under this section, the fund may recover all its costs and, in the discretion of the court, its reasonable attorney's fees involved in the action provided demand for payment has been made at least thirty days prior to commencement of an action. Demand for payment under this section shall stay the running of any statute of limitations for thirty days. This section applies to any claim filed after April 1, 1988.

Source: SL 1990, ch 292, § 5; SL 1992, ch 260, § 12.


34A-13-10Avoidance of liability by conveyance or agreement prohibited--Exceptions.

No covered party may avoid liability by means of a conveyance of any right, title, or interest in real property; or by any indemnification, hold harmless agreement, or similar agreement.

However, the provisions of this chapter do not:

(1)    Prohibit a person who may be liable from entering into an agreement by which the person is insured or is a member of a risk retention group, and is thereby indemnified for part or all of the liability;

(2)    Prohibit the enforcement of an insurance, hold harmless, or indemnification agreement; or

(3)    Bar a cause of action brought by a person who may be liable or by an insurer or guarantor, whether by right of subrogation or otherwise.

Source: SL 1988, ch 290, § 10; SL 1992, ch 260, § 13.


34A-13-11Recovery of expenses in civil action--Prima facie evidence of reasonable expenses--Disposition of recovered funds.

Any reasonable and necessary expenses incurred by the fund in taking a corrective action, including costs of investigating a release, third-party claims, administrative and legal expenses including attorney's fees for prosecuting any action, and defense costs including attorney's fees for any claims, may be recovered in a civil action in circuit court brought by the director against a covered party. The certification of expenses by an approved agent of the fund is prima facie evidence that the expenses are reasonable and necessary. Any expenses that are recovered under this section shall be deposited in the fund.

Source: SL 1988, ch 290, § 11; SL 1990, ch 292, § 6; SL 1991, ch 294, § 5; SL 1992, ch 260, § 14.


34A-13-12Administrative, civil, injunctive, and criminal remedies allowed where pursued by department--Exhaustion of administrative remedies not required.

Nothing in this chapter limits the powers of the department, or precludes the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department. The department need not exhaust administrative remedies under this chapter in order to pursue any other legal remedy.

The remedies provided by this chapter are in addition to those provided under existing statutory or common law.

Source: SL 1988, ch 290, § 12; SL 1991, ch 294, § 6.


34A-13-12.1Administrative, civil, injunctive, and criminal remedies allowed where pursued by director--Exhaustion of administrative remedies not required.

The director need not exhaust administrative remedies under this chapter in order to pursue any other administrative, civil, injunctive, or criminal remedies on behalf of the fund or the board.

Source: SL 1991, ch 294, § 25.


34A-13-13
     34A-13-13.   Repealed by SL 2013, ch 166, § 37.


34A-13-14Petroleum Release Compensation Board--Appointment of members--Terms.

The Petroleum Release Compensation Board consists of five persons appointed by the Governor as follows: one with experience in insurance or claims adjusting; one with experience in banking or a finance related business; one engineer or one person with experience in a technical field; and two persons from the petroleum marketing industry. Not all members of the board may be of the same political party. The term of an appointment shall be five years. Two members shall originally be appointed for five years, two persons for four years and one person for three years.

All functions of the Petroleum Release Compensation Board under chapter 34A-13 are hereby transferred to the secretary of the Department of Environment and Natural Resources. The Petroleum Release Compensation Board shall continue as an advisory board to the secretary of the Department of Environment and Natural Resources as provided for by § 1-32-4.1, on issues concerning petroleum inspection and release compensation.

Source: SL 1988, ch 290, § 14; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 154, eff. Apr. 12, 2011.


34A-13-15Employment of staff--Costs and appropriations--Delegation of authority.

The board shall hire and provide staff to support its activities. The staff shall be employees of the executive branch of state government and subject to the statutes, rules, and other conditions of employment that are applied to employees in the executive branch of state government. All necessary costs and appropriations shall be paid from the inspection fees collected pursuant to this chapter. Reimbursements previously made by the board, upon which no contested case was requested prior to January 1, 1992, are hereby ratified except to the extent the state or federal constitution may require judicial review. The board may delegate to the director such duties and authority necessary to complete the daily operation and administration of the fund.

Source: SL 1988, ch 290, § 15; SL 1990, ch 292, § 7; SL 1991, ch 294, § 7; SL 1992, ch 260, § 16.


34A-13-16Adoption of rules and procedures.

The board may adopt, pursuant to chapter 1-26, rules regarding its practices and procedures, the form and procedure for applications for compensation from the fund, procedures for investigation of claims, procedures and criteria for determining the amount and type of costs that are eligible for reimbursement from the fund, procedures for acceptable methods of payment from the fund, procedures for persons to perform services for the fund, the method and forms necessary for the collection of the fee, procedures for conducting training and testing, including standards for identifying acceptable performance on a test, of those who perform services to be reimbursed under this chapter, and other provisions necessary to carry out this chapter.

Source: SL 1988, ch 290, § 16; SL 1989, ch 310, § 3; SL 1990, ch 292, § 8; SL 1991, ch 294, § 8; SL 1992, ch 260, § 34A.


34A-13-16.1Training and testing of persons who perform services to be reimbursed.

The director and the department, jointly, separately, or in cooperation with private organizations, may conduct training seminars for those who perform services to be reimbursed under this chapter, administer voluntary tests to seminar participants and publish or withhold the results of such tests to any interested members of the public.

Source: SL 1992, ch 260, § 34B.


34A-13-17Attachment of fund to Department of Environment and Natural Resources--Reimbursement of costs.

The fund is attached to the Department of Environment and Natural Resources for budgeting and administrative support. All necessary costs of the Department of Environment and Natural Resources for these services shall be reimbursed from the inspection fees collected pursuant to this chapter.

Source: SL 1988, ch 290, § 17; SL 1991, ch 294, § 26; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 154, eff. Apr. 12, 2011.


34A-13-18Deposit and crediting of revenue.

Revenue from the following sources shall be deposited in the state treasury and credited to a petroleum release compensation fund:

(1)    Any fees imposed by § 34A-13-20;

(2)    Any money recovered by the fund pursuant to § 34A-13-9, including administrative expenses, and any money paid under an agreement, stipulation, or settlement;

(3)    Any interest attributable to investment of money in the fund;

(4)    Any money received by the secretary of environment and natural resources in the form of gifts, grants other than federal grants, reimbursements, or appropriations from any source intended to be used for the purposes of the fund;

(5)    Any money or other assets received by the secretary of environment and natural resources in connection with any loan from the fund or any account in the fund or otherwise in connection with any financing pursuant to §§ 34A-14-3 to 34A-14-26, inclusive.

Source: SL 1988, ch 290, § 18; SL 1989, ch 310, § 4; SL 1993, ch 48, § 20; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2011, ch 1 (Ex. Ord. 11-1), § 155, eff. Apr. 12, 2011.


34A-13-19
     34A-13-19.   Repealed by SL 1993, ch 48, § 19.


34A-13-20Petroleum release compensation and tank inspection fee--Amount of fee--Allocation of revenue.

A petroleum release compensation and tank inspection fee is imposed upon any petroleum products upon which the fuel excise tax is imposed by §§ 10-47B-5 to 10-47B-10, inclusive, 10-47B-9.1, and 10-47B-13. None of the exemptions from fuel excise tax allowed in § 10-47B-19 apply to this fee. The parties required to pay the fuel excise tax pursuant to the provisions of §§ 10-47B-21 to 10-47B-26, inclusive, and 10-47B-29 and 10-47B-31 are liable for payment of the petroleum release and tank inspection fee. In cases where the fuel is exempt from the fuel excise tax under the provisions of subdivisions 10-47B-19(1), (3), and (5), the supplier shall pay the fee. Responsibility for payment of the fee ceases if the petroleum product is sold and delivered by a licensed exporter outside of the state. The amount of the fee imposed is twenty dollars per one thousand gallons of petroleum. The revenue collected pursuant to this section shall be distributed monthly in the following manner:

(1)    In fiscal year 2019, fifty-five percent shall be deposited in the state capital construction fund, twenty-five percent shall be deposited in the ethanol fuel fund, and twenty percent shall be deposited in the petroleum release compensation fund;

(2)    In fiscal year 2020, sixty percent shall be deposited in the state capital construction fund, twenty percent shall be deposited in the ethanol fuel fund, nineteen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund as created in § 10-47B-164.1;

(3)    In fiscal year 2021, sixty-six percent shall be deposited in the state capital construction fund, fifteen percent shall be deposited in the ethanol fuel fund, eighteen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund;

(4)    In fiscal year 2022, seventy-two percent shall be deposited in the state capital construction fund, ten percent shall be deposited in the ethanol fuel fund, seventeen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund; and

(5)    Beginning in fiscal year 2023, eighty-one and one-half percent shall be deposited in the state capital construction fund, seventeen percent shall be deposited in the petroleum release compensation fund, and one and one-half percent shall be deposited in the ethanol infrastructure incentive fund.

Source: SL 1988, ch 290, § 20; SL 1989, ch 310, § 6; SL 1991, ch 294, § 10; SL 1992, ch 260, § 17; SL 1993, ch 48, § 18; SL 1995, ch 71, § 191; SL 1998, ch 218, § 1; SL 2002, ch 170, § 1; SL 2009, ch 55, § 33; SL 2018, ch 124, § 1.


34A-13-20.1Transfer of funds to and from state highway fund.

If the balance of the petroleum release compensation fund falls below two million dollars and has additional accounts payable that exceed projected monthly deposits pursuant to § 34A-13-20, a transfer shall be made from the state highway fund to the petroleum release compensation fund in an amount that brings the balance of the petroleum release compensation fund to five million dollars.

Any balance in the petroleum release compensation fund in excess of six million dollars, after any monthly deposit made pursuant to § 34A-13-20, shall be transferred to the state highway fund.

Source: SL 2018, ch 124, § 2.


34A-13-21
     34A-13-21.   Repealed by SL 2013, ch 166, § 38.


34A-13-22Payment of fee on monthly basis--Rules.

The fee required by § 34A-13-20 shall be paid on a monthly basis by all parties subject to the fee. The board shall establish, by rules promulgated pursuant to chapter 1-26, the time and method of collection, interest on past due amounts, forms and other matters necessary for the collection of the fee.

Source: SL 1988, ch 290, § 22; SL 1995, ch 71, § 192.


34A-13-23Audits of persons subject to fee.

The board may conduct audits or, by agreement, have the Department of Environment and Natural Resources conduct audits upon persons subject to the fee.

Source: SL 1988, ch 290, § 23; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 44, eff. Apr. 12, 2011.


34A-13-24Failure to pay fee as misdemeanor--Subsequent violation as felony.

If a party required to pay the fee imposed by § 34A-13-20 on the date due fails to do so, the party is guilty of a Class 1 misdemeanor. Each subsequent violation of this section is a Class 6 felony if the violation occurs within eighteen months of a previous violation.

Source: SL 1988, ch 290, § 24; SL 1991, ch 294, § 11; SL 1995, ch 71, § 193.


34A-13-25Notice of suspension of benefits--Notice to department--Appeal for reinstatement of benefits--Ratification of certain suspensions and reinstatements.

If any party required to pay the fee fails to do so, the director shall notify that party in writing that failure to pay the fee within fifteen days shall result in the suspension of all benefits under this chapter. The director shall also notify the department, by copy, of the party's failure, and the department may require additional proof of financial responsibility. If the past due fee is paid in full after benefits are suspended, the party may appeal to the board for reinstatement of benefits in a contested case proceeding pursuant to chapter 1-26. The board may deny reinstatement of benefits or grant partial or complete reinstatement of benefits. Any suspension or reinstatement undertaken by the board upon which no judicial action has been commenced prior to January 1, 1992, is hereby ratified.

Source: SL 1988, ch 290, § 25; SL 1991, ch 294, § 12; SL 1992, ch 260, § 18; SL 1995, ch 71, § 194.


34A-13-26Administration of provisions.

The requirements of chapter 1-26 govern the administration of this chapter. Any decision made by the director becomes final unless appealed to the board within thirty days of the date of that decision. The board may, upon agreement with all affected parties, waive any hearing requirements of chapter 1-26 in order to provide for summary disposition of claims.

Source: SL 1988, ch 290, § 26; SL 1991, ch 294, § 13; SL 1992, ch 260, § 19.


34A-13-27Fund expenditures.

Money in the fund may only be expended or obligated:

(1)    To administer the petroleum release compensation program established in this chapter;

(2)    For any administrative costs and costs of corrective action taken by the fund, including investigations, legal actions, consulting costs, and other necessary costs;

(3)    For any costs of recovering any expenses associated with corrective actions;

(4)    For training, testing, and certification of those who perform services to be reimbursed under this chapter;

(5)    For any costs paid to any state agency for services;

(6)    For research and studies designed to reduce releases and improve petroleum industry methods for storage and to develop information and knowledge to aid in cleanup;

(7)    To carry out inspections of tanks and to certify inspection persons who may perform approved inspections of tanks;

(8)    To purchase insurance for the purpose of limiting certain risks associated with providing fund coverage as deemed appropriate by the secretary of environment and natural resources;

(9)    For any service provider unless the director has determined that a conflict of interest exists between the consultant and the contractor that could affect the integrity of the cleanup activities;

(10)    For rule making; and

(11)    For training of board members and staff employed by the secretary of environment and natural resources.

Source: SL 1988, ch 290, § 27; SL 1989, ch 310, § 7; SL 1990, ch 292, § 9; SL 1991, ch 294, § 14; SL 1992, ch 260, § 20; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2011, ch 1 (Ex. Ord. 11-1), § 155, eff. Apr. 12, 2011; SL 2013, ch 166, § 39.


34A-13-28
     34A-13-28 to 34A-13-30.   Repealed by SL 1992, ch 260, §§ 21 to 23.


34A-13-31Determination of cost as actual, reasonable, and not in excess of petroleum remediation requirements--Reduction for ineligible claims.

Reimbursement may be made from the fund only if the board has determined that the costs for which reimbursement is requested were actually incurred, reasonable, and necessary as determined under rules promulgated by the board, and were for actions that did not exceed petroleum remediation requirements established by state statutes and regulations. In establishing what constitutes reasonable and necessary costs, the board shall consider trade usage, local labor and material costs, local conditions and practices, experience of the fund, and shall make allowance for site specific conditions.

Any attempt by a covered party to claim reimbursement under circumstances when the covered party knew or should have known that the claimed reimbursement was not allowable under this chapter or rules promulgated hereunder authorizes the board to reduce otherwise allowable claims submitted by the covered party. Any reduction imposed under this section is equal to the amount of the ineligible claim.

Source: SL 1988, ch 290, § 31; SL 1991, ch 294, § 18; SL 1992, ch 260, § 24.


34A-13-32Continuous appropriation to board for making reimbursements and other purposes--Submission of administrative budget for approval.

Money in the fund is continuously appropriated to the board for the purpose of making reimbursements under and for the other purposes described in this chapter. The board shall annually submit its administrative budget to the Legislature for approval as provided in § 4-8-1.

Source: SL 1988, ch 290, § 32; SL 1989, ch 310, § 9; SL 1991, ch 294, § 27.


34A-13-33Liability of covered party not limited by reimbursement.

The right to apply for reimbursement and the receipt of reimbursement does not limit the liability of a covered party for damages or costs incurred by any person as a result of a release.

Source: SL 1988, ch 290, § 33; SL 1992, ch 260, § 26.


34A-13-34Reimbursement paid to third party who performed cleanup not subject to attachment--Board and fund not subject to legal process, attachment.

The amount of reimbursement to be paid for cleanup which was performed by a third party is not subject to legal process or attachment. The board and the fund are not subject to legal process, attachment, lien, or lien foreclosure action by any persons having performed cleanup work or provided materials, supplies, or services for a cleanup project.

Source: SL 1988, ch 290, § 34; SL 1991, ch 294, § 19.


34A-13-35
     34A-13-35.   Repealed by SL 1992, ch 260, § 27.


34A-13-36
     34A-13-36.   Repealed by SL 1990, ch 292, § 22.


34A-13-37
     34A-13-37.   Repealed by SL 2013, ch 166, § 40.


34A-13-38
     34A-13-38.   Repealed by SL 1991, ch 294, § 20.


34A-13-39Short title.

This chapter may be cited as the "Petroleum Inspection and Release Compensation Act."

Source: SL 1988, ch 290, § 39.


34A-13-40Limits of reimbursement for corrective action and third party claims.

The board may provide by rules, promulgated pursuant to chapter 1-26, the limits of reimbursement for corrective action and third-party claims. These limits may not exceed those set forth in § 34A-13-8.1, but may consist of any amount equal to or less than the amounts authorized for releases discovered after April 1, 1990. Any limits provided pursuant to this section shall be in addition to reasonable defense costs, including attorneys' fees, for third-party claims.

Source: SL 1990, ch 292, § 11; SL 1991, ch 294, § 21; SL 1992, ch 260, § 28.


34A-13-41Reimbursement to licensed petroleum marketers and other tank owners.

The board shall provide reimbursement to licensed petroleum marketers, and other tank owners as defined by the board pursuant to rule for liability to third parties. Coverage may only be extended to tanks which are regulated in §§ 34A-2-98 and 34A-2-100, excluding tanks which are exempted from coverage requirements by rules promulgated pursuant to chapter 1-26 by the Board of Water Management, in any amount not to exceed nine hundred ninety thousand dollars as described in §§ 34A-13-8.1 and 34A-13-40 and set forth in §§ 34A-13-42 to 34A-13-46, inclusive.

Source: SL 1990, ch 292, § 12; SL 1992, ch 260, § 29; SL 1993, ch 256, § 39; SL 1995, ch 71, § 195; SL 2011, ch 165, § 158.


34A-13-42Rules for amount, terms and period of third-party reimbursement.

Prior to providing such third-party reimbursement, the board may promulgate rules pursuant to chapter 1-26 which state the amount of reimbursement, the terms and conditions of reimbursement, the period of reimbursement, and the tanks or occurrence covered by reimbursement.

Source: SL 1990, ch 292, § 13; SL 1991, ch 294, § 22.


34A-13-43
     34A-13-43.   Repealed by SL 1992, ch 260, § 30.


34A-13-44
     34A-13-44.   Repealed by SL 2013, ch 166, § 41.


34A-13-44.1Third-party damages--Benefits intended in or on behalf of covered party.

The provisions of this chapter relating to third-party damages are not intended to confer any benefit or create any rights or entitlements in or on behalf of any person other than a covered party.

Source: SL 1991, ch 294, § 24; SL 1992, ch 260, § 31.


34A-13-45Damage prior to April 1, 1990.

No reimbursement may be made for third-party claims if the damage was allegedly caused by a petroleum release reported prior to April 1, 1990.

Source: SL 1990, ch 292, § 16; SL 1992, ch 260, § 32.


34A-13-46Tanks at abandoned sites.

No reimbursement may be provided for third-party claims resulting from tanks at abandoned sites.

Source: SL 1990, ch 292, § 17; SL 1992, ch 260, § 33.


34A-13-47Time limit for third-party claim.

No action for recovery from the fund for any third-party claim may be maintained unless it is commenced within the time permitted by chapter 15-2 for the commencement of an action against the covered party.

Source: SL 1990, ch 292, § 18; SL 1992, ch 260, § 34.


34A-13-48Private insurance as risktaker--Annual report identifying potential companies.

The board shall endeavor to integrate private insurance as the primary or secondary risktaker. The board and insurance industry officials representing pollution coverage who have registered with the board shall meet at least annually to determine the availability, affordability, and progress made to identify potential private companies to provide insurance coverage for resident businesses or individuals for pollution coverage. A report of these findings shall be submitted by the board to the Legislature by January tenth of each year.

Source: SL 1990, ch 292, § 31A.


34A-13-49Abandoned tank removal program created--Eligibility for participation.

There is hereby created within the petroleum release compensation fund, a new program to be known as the abandoned tank removal program. Under this program, the director may provide payments for tank pulling and corrective action at abandoned sites where the owner or the person having legal custody of an abandoned site has voluntarily requested such action in the manner and time established by the secretary of the Department of Environment and Natural Resources and if the following criteria are met:

(1)    The owner or person having legal custody of the abandoned site has submitted to the director a written request to have the tank removed. The request shall be made in the manner established by the secretary of the Department of Environment and Natural Resources to include documentation of eligibility for the site to participate in the abandoned tank removal program, proof of ownership, and legal description;

(2)    The owner or person having legal custody of the abandoned site has, in writing, waived all claims against the state, its officers, agents, and employees for damages resulting directly or indirectly from the tank pulling or corrective action;

(3)    If the abandoned site is on private property, all property taxes are current; and

(4)    The owner or person having legal custody of the abandoned site has agreed to transfer ownership of the removed tank and its contents to the state.

No tank is eligible for coverage under this program if the tank is located at the site of a commercially operational motor fuel vendor in service on or after April 1, 1988.

Source: SL 2000, ch 175, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 156, eff. Apr. 12, 2011.


34A-13-50Scope of program.

Payments made from the director for tank pulling and corrective action under the abandoned tank removal program may include:

(1)    Tank pulling, as defined in this chapter, including the disposal of tank contents and specifically excluding the replacement of surface above the backfill area; and

(2)    Removal of abandoned waste oil tanks and corrective action of a waste oil release located on an abandoned site.

Source: SL 2000, ch 175, § 2.


34A-13-51
     34A-13-51.   Repealed by SL 2001, ch 192, § 1.


34A-13-52Department responsible for tank removal and corrective actions under program--Director to make payments from fund.

The Department of Environment and Natural Resources shall be responsible for the tank removal and corrective actions subject to §§ 34A-13-49 to 34A-13-54, inclusive. The department may contract directly with consultants, contractors, other service providers, state agencies, subdivisions of government, counties, cities, townships, and tribes to carry out the provisions of §§ 34A-13-49 to 34A-13-54, inclusive. After receiving itemized documentation of all actual costs from the department, the director of the petroleum release compensation fund shall make payment within thirty days of receipt. All tank removals, pollution assessments, and corrective actions taken under §§ 34A-13-49 to 34A-13-54, inclusive, shall comply with chapters 34A-2 and 34A-12 and the rules promulgated thereunder.

Source: SL 2000, ch 175, § 4.


34A-13-53Promulgation of rules.

The secretary of the Department of Environment and Natural Resources may promulgate, pursuant to chapter 1-26, rules regarding practices and procedures necessary to carry out the provisions of the abandoned tank removal program including the form and procedure for application for qualifying for tank pulling and corrective action.

Source: SL 2000, ch 175, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 157, eff. Apr. 12, 2011.


34A-13-54Director to suspend payments except at high-risk sites when fund balance is two million dollars or less.

Except at sites determined to be high risk by the secretary of the Department of Environment and Natural Resources using risk-based corrective action criteria, the director shall suspend payments for tank pulling and corrective action at abandoned sites eligible for the abandoned tank removal program if the balance of the fund is two million dollars or below. The director shall resume payments for tank pulling and corrective action at abandoned sites eligible for the abandoned tank removal program if the fund balance exceeds two million dollars. Except as provided in §§ 34A-13-49 to 34A-13-54, inclusive, all other limits of coverage, conditions, and criteria in this chapter apply to tank pulling and corrective action taken at abandoned sites.

Source: SL 2000, ch 175, § 6; SL 2002, ch 170, § 6.


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