Chapter 0299 - 532R - S Ver of HB2310

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 49-1006.02, Arizona Revised Statutes, is amended to read:

START_STATUTE49-1006.02. Insurance primacy; requirements; fund access

A. For owners or operators that satisfy financial responsibility requirements through insurance, the following apply:

1. The policy that covers the underground storage tank system at the time the release is discovered shall be primary to eligibility under sections 49‑1017 and 49‑1054.

2. The owner or operator is not required to exhaust insurance coverage in order to be eligible under sections 49‑1017 and 49‑1054.

3. except as provided in subsection c of this section, eligibility under sections 49‑1017 and 49‑1054 is contingent on filing a timely insurance claim under the policy and pursuing that claim until a denial is received or, after assistance from the department as prescribed in section 49‑1006.01, subsection D, until the department determines that the claim has been constructively denied.

4. An owner or operator that fails to pursue an insurance claim is no longer eligible under sections 49‑1017 and 49‑1054.

B. An owner or operator that satisfies financial responsibility requirements through insurance and that will not receive payment from its insurance provider until after the expenditure of at least fifty thousand dollars per facility as provided in an insurance policy that is in effect on April 1, 2015 or that satisfies financial responsibility requirements through an alternative financial responsibility mechanism is eligible under sections 49‑1017 and 49‑1054 after meeting a cost sharing obligation by payment of the first fifty thousand dollars per facility for work that is conducted on or after January 1, 2016. This eligibility is subject to the limits prescribed in section 49‑1054, subsection A and is subject to the preapproval process prescribed in section 49‑1051. EXCEPT AS PROVIDED IN SUBSECTION C OF THIS SECTION, eligibility pursuant to this subsection for owners or operators that meet financial responsibility requirements through insurance is contingent on providing timely notice of the release to the insurance carrier under the policy and that eligibility ends on the date that the insurer is obligated to provide payment under the policy.

C. AN OWNER OR OPERATOR THAT SATISFIES FINANCIAL RESPONSIBILITY REQUIREMENTS THROUGH INSURANCE AND THAT HAD A RELEASE REPORTED BETWEEN JULY 1, 2006 AND DECEMBER 31, 2015, THAT REQUIRES ADDITIONAL CORRECTIVE ACTION IS ELIGIBLE UNDER SECTIONS 49-1017 AND 49-1054 SUBJECT TO THE PREAPPROVAL PROCESS PRESCRIBED IN SECTION 49-1051 WITHOUT FILING A TIMELY CLAIM AGAINST ITS INSURANCE CARRIER IF THE OWNER OR OPERATOR WAS IN COMPLIANCE WITH FINANCIAL RESPONSIBILITY REQUIREMENTS AT THE TIME OF THE RELEASE. THE MAXIMUM AMOUNT ELIGIBLE FOR REIMBURSEMENT UNDER THIS SUBSECTION IS FIVE HUNDRED THOUSAND DOLLARS PER FACILITY AFTER MEETING A COST SHARING OBLIGATION BY PAYMENT OF THE FIRST FIFTY THOUSAND DOLLARS PER FACILITY FOR WORK CONDUCTED ON OR AFTER JANUARY 1, 2016 AND WITHOUT ANY REDUCTIONS FOR PAYMENTS MADE PURSUANT TO LAWS 2015, CHAPTER 247, SECTION 25, AS AMENDED BY SECTION 2 OF THIS ACT. END_STATUTE

Sec. 2. Laws 2015, chapter 247, section 25 is amended to read:

Sec. 25. Previously time-barred underground storage tank revolving fund claims; requirements; limitations; appeals

Notwithstanding any other law:

1. For releases of a regulated substance that were properly reported before July 1, 2006:

(a) Costs for corrective action are eligible for reimbursement up to five hundred thousand dollars per facility for an applicant who satisfies federal financial responsibility obligations prescribed in 40 code of federal regulations part 280 through a financial assurance mechanism other than insurance and one million dollars per facility for an applicant who satisfies federal financial responsibility obligations through insurance, without regard to the number of releases at the facility AND WITHOUT ANY REDUCTIONS FOR PAYMENTS MADE PURSUANT TO THE PREAPPROVAL PROGRAM PRESCRIBED BY SECTIONS 49-1051 AND 49-1053, ARIZONA REVISED STATUTES.

(b) If reimbursement eligibility for a facility was exhausted through claims submitted on or before June 30, 2010 as a result of payment or eligibility limits in place on that date, that facility is not eligible for any additional reimbursement under this section.

(c) If claims for reimbursement at a facility were made on or before June 30, 2010, the total amount of payment on those claims shall reduce eligibility for reimbursement under this section by the amount paid on the claims.

2. For releases of a regulated substance that were properly reported on or after July 1, 2006, but before January 1, 2016, costs for corrective actions are eligible for reimbursement up to five hundred thousand dollars per facility for an applicant who satisfies federal financial responsibility obligations prescribed in 40 code of federal regulations part 280 through a financial assurance mechanisms other than insurance and one million dollars per facility for an applicant who satisfies federal financial responsibility obligations through insurance, without regard to the number of releases at the facility.

3. The department of environmental quality is not required to take any action on an application for reimbursement until January 1, 2017.

4. The department of environmental quality shall pay all compensable claims for corrective action costs arising from releases that were reported before July 1, 2006 and that are submitted on or before December 31, 2016, before paying any claims under this section for corrective action costs arising from releases reported on or after July 1, 2006. Claims submitted pursuant to this section are compensable only for costs incurred after June 30, 2010.

5. Subject to paragraph 4 of this section, the department of environmental quality shall pay all compensable claims submitted by December 31, 2016 in equal proportion based on the amount of the claim, without regard to who the applicant is or the time that the claim is submitted, if the claim is timely submitted. The department of environmental quality shall determine the percentage of each claim to be paid based on the monies available in the underground storage tank revolving fund established by section 49‑1015, Arizona Revised Statutes.

6. Only claims that are approved by the department of environmental quality are eligible for payment under this section. The department shall reimburse costs that are reasonable and were actually incurred for corrective actions that were actually performed. The costs for the corrective actions shall be documented in an application by the facility for payment from the underground storage tank revolving fund that shall be submitted by December 31, 2016, except that claims submitted pursuant to paragraph 9 of this section shall be submitted by December 31, 2018. The department shall provide reimbursement for ninety percent of the reasonable and necessary costs of eligible activities pursuant to this section. Applications for reimbursement shall include a declaration that is signed by the owner or operator and that affirms that the submitted costs are true and accurate, have not previously been submitted to the department and have not been reimbursed to the owner or operator by insurance or an alternative financial assurance mechanism. A provider of insurance or an alternative financial assurance mechanism that is not an owner or operator with respect to that facility is not eligible for payment under this section.

7. The department of environmental quality shall determine the amount of monies in the underground storage tank revolving fund prescribed by section 49-1015, Arizona Revised Statutes, as added amended by this act Laws 2016, chapter 120, section 2, on December 31, 2016 that is available to pay claims under this section. The department is not required to evaluate available monies from the fund and issue payments more than once per year thereafter.

8. An owner or operator is not eligible to receive payment from the department of environmental quality unless the owner or operator is in compliance with the financial responsibility obligations under 40 code of federal regulations part 280.

9. Notwithstanding paragraph 8 of this section, for releases of a regulated substance that were properly reported and confirmed before financial responsibility was required by 40 code of federal regulations part 280:

(a) Costs for corrective actions that were conducted between July 1, 2010 and December 31, 2016 are eligible for reimbursement of up to one million dollars per facility, without regard to the number of releases at the facility AND WITHOUT ANY REDUCTIONS FOR PAYMENTS MADE PURSUANT TO THE PREAPPROVAL PROGRAM PRESCRIBED BY SECTIONS 49-1051 AND 49-1053, ARIZONA REVISED STATUTES.

(b) If previous reimbursement for a facility exceeds one million dollars for claims submitted on or before December 31, 2016, that facility is not eligible for any additional reimbursement under this paragraph.

(c) If claims for reimbursement at a facility were made pursuant to this section on or before DECEMBER 31, 2016 and were previously reimbursed, the total amount of payment on those claims shall reduce ELIGIBILITY for reimbursement under this paragraph by the amount paid on the claims.

(d) the costs for the corrective actions shall be DOCUMENTED in an application by the facility for payment from THE underground storage tank revolving fund established by section 49-1015, Arizona Revised Statutes, that shall be submitted by DECEMBER 31, 2018.

(e) Paragraphs 5, 6, 7 and 10 of this section apply to any claims for reimbursement prescribed by this paragraph.

9. 10. Any appeals of reimbursement decisions made under this section are subject to title 41, chapter 6, article 10, Arizona Revised Statutes.