Section 328IAC1-4-1. General procedure for prioritization

   (a) The following shall apply in the event the unencumbered balance, less the unpaid, approved claims for reimbursable costs and third party liability claims, in the fund falls below:

(1) Twenty-five million dollars ($25,000,000), the releases will be categorized according to this section.

(2) Five million dollars ($5,000,000), the prioritized claims, based on the categorized releases, will be paid according to section 4 of this rule.

The administrator may invoke these procedures prior to the unencumbered fund balance, less the unpaid, approved claims for reimbursable costs and third party liability, falling below the amounts specified in subdivision (1) or (2).

  (b) All claims or parts of claims submitted to the administrator for an emergency measure, as defined under 328 IAC 1-1-5.1, will be paid first. If the claim or part of the claim is for work performed that has not been determined to be an emergency measure as defined under 328 IAC 1-1-5.1, the claim or part of the claim for that work will be paid according to the category of the fund qualifying occurrence as determined in subsection (c).

  (c) After the initial site characterization, further site investigation, or a corrective action progress report is completed, the fund qualifying occurrence will be placed in the lowest numbered category for which it qualifies as follows, and all claims for reimbursement of costs and third party liability shall be paid in numerical order of the fund qualifying occurrence category subject to the release recategorization provisions under section 3 of this rule:

(1) If the administrator determines, based on the most recent information submitted to the administrator, that one (1) of the following has occurred and it is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 1 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for emergency measures are paid as provided in subsection (b):

(A) Petroleum or petroleum constituents are detected in a structure or a utility conduit, such as a:

(i) storm sewer;

(ii) sanitary sewer; or

(iii) utility conduit;

that exceed ten percent (10%) lower explosive limit (LEL).

(B) Vapors for petroleum or petroleum constituents are detected in an inhabitable building in levels greater than long-term, risk-based exposure for contaminants of concern.

(C) Petroleum or petroleum constituents are detected in a drinking water well at or above maximum contamination levels (MCLs) or RISC residential ground water cleanup objectives at the point of compliance or at the tap.

(2) If the administrator determines, based on the most recent information submitted to the administrator, that one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 2 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 1 fund qualifying occurrences are paid as provided in subdivision (1):

(A) Petroleum or petroleum constituents are detected in free phase in a thickness of at least one (1) foot in any one (1) well, or at least one (1) inch in two (2) or more wells where the wells are at least twenty (20) feet apart, provided that the wells are not screened in the underground storage tank cavity backfill.

(B) Petroleum or petroleum constituents are detected in surface water above water quality standards under rules of the water pollution control board at 327 IAC 2.

(3) If the administrator determines, based on the most recent information submitted to the administrator, that one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 3 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 2 fund qualifying occurrences are paid as provided in subdivision (2):

(A) Petroleum or petroleum constituents are detected off-site in ground water at concentrations exceeding RISC cleanup standards appropriate for the land use of the off-site location.

(B) Petroleum or petroleum constituents are detected off-site in soil at concentrations exceeding RISC cleanup standards appropriate for the land use of the off-site location.

(C) Petroleum or petroleum constituents are present in free phase in a thickness of at least one-sixteenth (1/16) inch in any well.

(D) Petroleum or petroleum constituents, attributable to a gasoline release, are detected in the ground water at concentrations exceeding RISC cleanup standards for the appropriate land use. For the purposes of this clause, gasoline has the meaning set forth in 45 IAC 12-1-7.

(4) If the administrator determines, based on the most recent information submitted to the administrator, that one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 4 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 3 fund qualifying occurrences are paid as provided in subdivision (3):

(A) Petroleum or petroleum constituents are detected in on-site ground water at concentrations exceeding RISC industrial cleanup standards in two (2) or more wells, where the wells are at least twenty (20) feet apart, where neither well is screened in the underground storage tank cavity backfill.

(B) Petroleum or petroleum constituents are detected in on-site soil at concentrations exceeding RISC industrial cleanup standards in at least two (2) boring holes at least twenty (20) feet apart.

(5) A fund qualifying occurrence that does not qualify as a category 1, 2, 3, or 4 category will be considered a category 5 fund qualifying occurrence.

(6) Claims in the same category will be paid in chronological order according to the date and time received by the administrator as indicated by the date and time stamped by the administrator on the claim submitted to the administrator.

  (d) Fund qualifying occurrences shall be initially categorized according to those conditions that existed at the time the first claim was submitted after prioritization was initiated.

  (e) Claims determined to be unreimburseable may be revised and resubmitted to the fund. The date and time of the revised claim for the purposes of subsection (c)(6) shall be based on the date and time that the fund administrator receives the revised claim as indicated by the date and time stamped by the administrator on the claim submitted to the administrator.

  (f) An applicant may request a review of a denial of payment using the procedures set forth in IC 13-23-9-4.

  (g) Categorization of a fund qualifying occurrence or placement of a claim on a priority list does not constitute a commitment to reimburse corrective action or third party liability costs. (Underground Storage Tank Financial Assurance Board; 328 IAC 1-4-1; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1055; filed Nov 1, 1995, 8:30 a.m.: 19 IR 347; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 799; filed Aug 30, 2004, 9:40 a.m.: 28 IR 137; 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)