Section 329IAC9-8-22. Drawing on financial assurance mechanisms

   (a) Except as specified in subsection (d), the commissioner shall require the guarantor, surety, institution that issues a letter of credit, or owner or operator that obtains a certificate of deposit to place the amount of funds stipulated by the commissioner, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if either of the following occur:

(1) The conditions of clauses (A) and (B) are completed as follows:

(A) The owner or operator fails to establish alternate financial assurance within sixty (60) days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism.

(B) Either of the following occur:

(i) The commissioner determines or suspects that a release from an underground storage tank covered by the mechanism has occurred and so notifies the owner or operator.

(ii) The owner or operator has notified the commissioner under 329 IAC 9-4 or 329 IAC 9-5 of a release from an underground storage tank covered by the mechanism.

(2) The conditions of subsection (b)(1), (b)(2)(A), or (b)(2)(B) are satisfied.

  (b) The commissioner may draw on a standby trust fund when either of the following occur:

(1) The commissioner makes a final determination that a release has occurred and immediate or long term corrective action for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply under 329 IAC 9-4 and 329 IAC 9-5, has not conducted corrective action as required under 329 IAC 9-5.

(2) The commissioner has received either of the following:

(A) Certification from the:

(i) owner or operator;

(ii) third party liability claimant;

(iii) attorney representing the owner or operator; and

(iv) attorney representing the third party liability claimant;

that a third party liability claim should be paid. The certification must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Certification of Valid Claim

The undersigned, as principals and as legal representatives of [owner or operator] and [insert name and address of third party claimant], hereby certify that the claim of bodily injury [and/or] property damage caused by an accidental release arising from operating [owner's or operator's] underground storage tank should be paid in the amount of $[______].

[Signatures]

Owner or Operator

Attorney for Owner or Operator

(Notary)

Date

[Signatures]

Claimant(s)

Attorney(s) for Claimant(s)

(Notary)

Date

(B) A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from an underground storage tank covered by financial assurance under this rule the commissioner determines that the owner or operator has not satisfied the judgment.

  (c) If the commissioner determines that the amount of corrective action costs and third party liability claims eligible for payment under subsection (b) may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment must be corrective action costs necessary to protect human health and the environment. The commissioner shall direct payment of third party liability claims in the order in which the commissioner receives:

(1) certifications under subsection (b)(2)(A); and

(2) valid court orders under subsection (b)(2)(B).

  (d) A governmental entity that acts as guarantor under section 16(e) of this rule, the local government guarantee without standby trust, shall make payments as directed by the commissioner under the circumstances described in this section. (Solid Waste Management Division; 329 IAC 9-8-22; filed Jul 19, 1999, 12:00 p.m.: 22 IR 3759; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)