Section 328IAC1-3-3. Tank fees and reduction of reimbursements

   (a) A person listed in section 1 of this rule shall comply with the following for a claim for reimbursable costs or a third party liability claim to be considered for reimbursement from the fund by the administrator:

(1) Demonstrate that the requirements in IC 13-23-8-4(a)(1) through IC 13-23-8-4(a)(4) have been met.

(2) Demonstrate that the initial site characterization (ISC), for the property associated with the release, required by rules of the solid waste management board at 329 IAC 9-5-5.1 has been completed and submitted to the department within sixty (60) days of reporting a release to the department. If this requirement is not met, the ELTF eligibility percentage will be reduced by five percent (5%) on the ninety-first day. An additional five percent (5%) will then be deducted for every six (6) months that passes prior to the ISC being submitted to the department.

(3) The CAP as required by IC 13-23-8-4(a)(4) and 329 IAC 9-5-7 must be submitted with projected costs that describe in detail the costs for work to be completed under the CAP. The projected costs must be in a form or format approved by the administrator.

(4) Demonstrate that the tank owner or operator was in substantial compliance with the spill reporting rule or law applicable at the time the release was suspected.

(5) When site access is granted by the owner or operator to a third party for the purposes of an environmental investigation, one (1) of the following must be demonstrated:

(A) That within forty-five (45) days from the date the third party accessed the site, the owner or operator requested, in a letter sent by certified mail, the results of the investigation that identified a potential release on that site and reported any spill or release, as required by the rules of the solid waste management board at 329 IAC 9-4-4.

(B) The access agreement with the third party specified that the results of the investigation are provided to the owner or operator within forty-five (45) days of sample collection.

If clause (A) or (B) is not met, the ELTF eligibility percentage will be reduced by five percent (5%). An additional five percent (5%) will then be deducted for every six (6) months that passes prior to clause (A) having been met.

(6) Pay all:

(A) past and currently due fees under IC 13-23-12-1; and

(B) interest and penalties that are due under subsections (e) and (f).

Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.

(7) For a person who acquires ownership in accordance with subsection (d), make timely payment of all past due tank fees, interest, and penalties in accordance with subsection (f) to make a claim for reimbursable costs for any site characterization or corrective action related to a release that is first suspected, discovered, or confirmed after the payment of all past and currently due fees, interest, and penalties. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC9-6-1 and are:

(A) operable; or

(B) in temporary closure.

(8) Register the tank or tanks within thirty (30) days of the time the tank or tanks were first put into use, even if a release is discovered or confirmed before the tank or tanks were registered. Tanks are considered in use when the tank:

(A) contains or has ever contained a regulated substance; and

(B) has not been closed under 329 IAC 9-6.

(9) Comply with the requirements of IC 13-23, 329 IAC 9, and this title.

  (b) Persons listed in section 1 of this rule shall be reimbursed from the fund according to the following formula:

(1) Determine the number of payments that were owed under IC 13-23-12-1 on all regulated tanks at the facility from which a release occurred:

(A) beginning with the date that the fees for each tank first became due under IC 13-23-12; and

(B) continuing until the date on which the release occurred.

Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.

(2) Determine the number of payments actually made under IC 13-23-12-1 on all regulated tanks at the facility from which a release occurred:

(A) beginning with the date each tank became regulated under IC 13-23; and

(B) continuing until the date on which the release occurred.

Divide the number of payments actually made by the number of payments due as determined in subdivision (1).

(3) Determine any additional percentage reduction related to either the ISC submittal in subsection (a)(2) or the third party access agreement in subsection (a)(5).

(4) Determine the amount of money the person would have received from the fund if all payments due on the date the release occurred had been paid when due and multiply the amount by the percentage determined in subdivisions (2) and (3).

  (c) Payments that were made or could have been paid four (4) times per year under IC 13-23-12-3 count as one (1) payment for purposes of this section.

  (d) A person who acquires ownership or operation of an underground petroleum storage tank under IC 13-23-8-4.5(2) [IC 13-23-8-4.5 was repealed by P.L.96-2016, SECTION 26, effective July 1, 2016.] may not become eligible for reimbursement from the fund for any releases reported after the date that the commissioner receives the "Intent to Acquire UST and Reinstate Eligibility" form (Form) unless the person does the following:

(1) Submits a Form as prescribed by the commissioner at least sixty (60) days prior to acquiring ownership or operation of an underground petroleum storage tank. This form will be kept confidential up to the earlier of the following:

(A) The date of the transfer of the property.

(B) The administrator's receipt of the monies as owed under subsection (e).

(C) Ninety (90) days after the administrator receives the Form.

The administrator will provide a listing of environmental penalties, interest due to the fund, and fees due to the prospective purchaser and the property owner within forty-five (45) days of receipt of the Form.

(2) Pays all applicable tank fees, including past due fees, interest, and penalties, for each tank not more than thirty (30) days after the transaction whereby the person acquires ownership or operation of each tank. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are:

(A) operable; or

(B) in temporary closure.

(3) The seller of the underground petroleum storage tank site is liable for any and all unpaid tank fees, interest, and penalties that are assessed by the administrator in accordance with subsection (e). The purchaser is to:

(A) collect all past due tank fees, interest, and penalties from the noncompliant seller; and

(B) remit to the administrator the full amount of the assessment for the subject underground petroleum storage tank provided by the administrator in accordance with subsection (e) prior to a release.

The timely remittance of these monies is a condition of fund eligibility for the purchaser. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.

  (e) Persons listed in section 1 of this rule who fail to pay tank fees when due are subject to payment of interest and penalties on those fees in order to become eligible for the fund. Interest and penalties due include the following:

(1) Penalties and interest due the department of state revenue.

(2) All past due underground storage tank fees under IC 13-23-12. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are:

(A) operable; or

(B) in temporary closure.

(3) An environmental penalty as specified in subsection (f)(2). This penalty will be distributed into the fund and into the petroleum trust fund in accordance with IC 13-23-12-7(b) [IC 13-23-12-7 was repealed by P.L.38-2012, SECTION 5, effective July 1, 2012.].

(4) Interest will be charged for the missed fee or fees at the percent per year based on subsection (f) and IC 6-8.1-10-1 until all fees due have been paid in full for each tank. This interest will be deposited into the fund.

Payment of all fees, interest, and penalties due within thirty (30) days of the date of transfer of the subject property is a requirement for fund eligibility for the purchaser.

  (f) In addition to all past due fees owed, the amount of interest and penalties owed by a particular owner or operator is to be determined by the following formula:

(1) Interest, under IC 6-8.1-1-1 and IC 6-8.1-10-1, as follows:

Number of delinquent days × daily interest rate = interest due

Interest will be calculated according to IC 6-8.1-10-1.

(2) Penalty as follows:

(A) For sites containing only tanks that were never registered, or sites containing only tanks for which no tank fees were paid when due, the penalty will be calculated at two thousand dollars ($2,000) under IC 13-23-12-7(a) [IC 13-23-12-7 was repealed by P.L.38-2012, SECTION 5, effective July 1, 2012.] per petroleum underground storage tank per year that passes after each year's fee is due. The penalty will be calculated by multiplying the total number of years that have passed since the fee was due by the total number of tanks and multiplying the result by two thousand dollars ($2,000).

(B) For sites with tanks that are registered but not all fees have been completely paid, the penalty will be calculated at one thousand dollars ($1,000) per petroleum underground storage tank for each missed fee payment. If a quarterly fee payment is missed, the penalty is applied at one-fourth (1/4) the amount. The penalty will be calculated by multiplying the total number of years that have passed since the fee was due by the total number of tanks and multiplying the result by one thousand dollars ($1,000).

(C) The penalty is incurred:

(i) nine (9) months after the fee is due; or

(ii) three (3) months after the final quarterly installment is due.

(D) Penalties will not be collected for fees due before December 1, 2001.

(Underground Storage Tank Financial Assurance Board; 328 IAC 1-3-3; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1053; filed Jan 9, 1997, 4:00 p.m.: 20 IR 1104; errata, 20 IR 1593; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 790; errata filed Feb 27, 2002, 9:58 a.m.: 25 IR 2254; filed Aug 30, 2004, 9:40 a.m.: 28 IR 127; errata filed Oct 7, 2004, 11:45 a.m.: 28 IR 608; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA)