§342L-36  Financial responsibility.  (a)  The department, pursuant to chapter 91, shall adopt requirements for maintaining evidence of financial responsibility for taking response action and compensating third parties for bodily injury and property damage caused by any accidental releases arising from operating an underground storage tank or tank system.  Evidence of financial responsibility may be established by any one, or any combination of the following:  insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer, or any other method satisfactory to the department.  In prescribing requirements under this subsection, the department may specify policy or other contractual terms, conditions, or defenses that are necessary or acceptable to establish evidence of financial responsibility.

     (b)  If the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or if jurisdiction in any state or federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this subsection may be asserted directly against the provider of financial assurance.  In the case of action pursuant to this subsection, the provider of financial assurance may invoke all rights and defenses that would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the provider of financial assurance if an action had been brought against the provider of financial assurance by the owner or operator.

     (c)  The total liability of a provider of financial assurance shall be limited to the aggregate amount that the provider of financial assurance has provided as evidence of financial responsibility to the owner or operator under this subsection.  This subsection does not limit any other state or federal statutory, contractual, or common law liability of a provider of financial assurance to the owner or operator, including, but not limited to, the liability of the provider of financial assurance for bad faith in negotiating or in failing to negotiate the settlement of any claim.  This subsection does not diminish the liability of any person under section 107 or 111 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or other applicable law.

     (d)  The department may establish the amount of required coverage for particular classes or categories of underground storage tanks or tank systems containing petroleum, which shall not be less than $1,000,000 for each occurrence with an appropriate aggregate requirement.

     (e)  The department may establish amounts lower than the amounts required by subsection (d) for underground storage tanks or tank systems containing petroleum, which are at facilities not engaged in petroleum production, refining, or marketing, and which are not used to handle substantial quantities of petroleum.

     (f)  The department may consider the following factors in establishing the amount of coverage:

     (1)  The size, type, location, storage, and handling capacity of underground storage tanks or tank systems in the class or category and the volume of petroleum handled by the tanks or tank systems;

     (2)  The likelihood of release from underground storage tanks or tank systems in the class or category;

     (3)  The economic impact of the limits on the owners and operators of each such class or category, particularly relating to the small business segment of the petroleum marketing industry;

     (4)  The availability of methods of financial responsibility in amounts greater than the amount established by this section; and

     (5)  Such other factors as the department deems pertinent.

     (g)  The department may suspend enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks or tank systems if the department determines that methods of financial responsibility satisfying the requirements of this section are not generally available for underground storage tanks or tank systems in that class or category, and:

     (1)  Steps are being taken to form a risk retention group for the class of tanks or tank systems; or

     (2)  The State is taking steps to establish a fund to be implemented by the department or local agencies and departments for response action and compensation for the class of tanks or tank systems.

     The initial suspension by the department pursuant to this subsection may be for a period not to exceed one hundred eighty  days.  A determination to continue suspension may be made with respect to the same class or category at the end of the period, but only if substantial progress has been made in establishing a risk retention group, or the owners or operators in the class or category demonstrate, and the department finds, that the formation of such a group is not possible and that the State is unable or unwilling to establish such a fund described in paragraph (2). [L 1989, c 212, pt of §6; am L 1992, c 259, §26]

Note

  The amendment made by L 2014, c 218, §8 is not included in this section.