H.B. 117

1

UNDERGROUND STORAGE TANK FUNDING
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Bill Wright
5 AN ACT RELATING TO HEALTH AND ENVIRONMENT; REPEALING THE
6 ENVIRONMENTAL SURCHARGE ON PETROLEUM; CREATING A VOLUNTARY
7 PROGRAM FOR QUALIFIED PETROLEUM STORAGE TANKS REGARDING THE
8 COSTS OF RELEASES; CREATING AN ENVIRONMENTAL ASSURANCE FEE TO BE
9 PAID BY PROGRAM PARTICIPANTS; PROVIDING FOR ADMINISTRATION AND
10 PURPOSES OF THE PROGRAM; AND PROVIDING FOR ADMINISTRATION OF TANKS
11 NOT PARTICIPATING IN THE PROGRAM, TO ENSURE THEIR FINANCIAL
12 RESPONSIBILITY.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 19-6-402, as last amended by Chapter 79, Laws of Utah 1996
16 19-6-403, as last amended by Chapter 297, Laws of Utah 1994
17 19-6-404, as last amended by Chapter 214, Laws of Utah 1992
18 19-6-405.5, as enacted by Chapter 214, Laws of Utah 1992
19 19-6-407, as last amended by Chapter 297, Laws of Utah 1994
20 19-6-408, as last amended by Chapter 28, Laws of Utah 1995
21 19-6-409, as last amended by Chapter 297, Laws of Utah 1994
22 19-6-411, as last amended by Chapter 162, Laws of Utah 1996
23 19-6-412, as last amended by Chapter 214, Laws of Utah 1992
24 19-6-414, as last amended by Chapter 214, Laws of Utah 1992
25 19-6-415, as last amended by Chapter 214, Laws of Utah 1992
26 19-6-417, as last amended by Chapter 214, Laws of Utah 1992
27 19-6-419, as last amended by Chapter 162, Laws of Utah 1996

1 19-6-420, as last amended by Chapter 297, Laws of Utah 1994
2 19-6-421, as last amended by Chapter 188, Laws of Utah 1993
3 19-6-423, as last amended by Chapter 214, Laws of Utah 1992
4 19-6-424, as last amended by Chapter 214, Laws of Utah 1992
5 19-6-425, as last amended by Chapter 214, Laws of Utah 1992
6 19-6-426, as last amended by Chapter 214, Laws of Utah 1992
7 59-1-403, as last amended by Chapter 259, Laws of Utah 1994
8 ENACTS:
9 19-6-410.5, Utah Code Annotated 1953
10 19-6-415.5, Utah Code Annotated 1953
11 19-6-428, Utah Code Annotated 1953
12 19-6-429, Utah Code Annotated 1953
13 REPEALS:
14 19-6-410, as last amended by Chapter 1, Laws of Utah 1993, Second Special Session
15 This act enacts uncodified material.
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 19-6-402 is amended to read:
18 19-6-402. Definitions.
19 As used in this part:
20 (1) "Abatement action" means action taken to limit, reduce, mitigate, or eliminate a release
21 from an underground storage tank or petroleum storage tank, or to limit or reduce, mitigate, or
22 eliminate the damage caused by that release.
23 (2) "Board" means the Solid and Hazardous Waste Control Board created in Section
24 19-1-106.
25 (3) "Bodily injury" means bodily harm, sickness, disease, or death sustained by any
26 person.
27 (4) "Certificate of compliance" means a certificate issued to a facility by the executive
28 secretary:
29 (a) demonstrating that an owner or operator of a facility containing one or more petroleum
30 storage tanks has met the requirements of this part [to be eligible for payments of costs from the
31 fund regarding any release meeting the requirements of Section 19-6-424]; and

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1 (b) listing all tanks at the facility, specifying which tanks may receive petroleum and
2 which tanks have not met the requirements for compliance.
3 (5) "Certificate of registration" means a certificate issued to a facility by the executive
4 secretary demonstrating that an owner or operator of a facility containing one or more underground
5 storage tanks has:
6 (a) registered the tanks; and
7 (b) paid the annual underground storage tank fee.
8 (6) (a) "Certified underground storage tank consultant" means any person who:
9 (i) meets the education and experience standards established by the board under
10 Subsection 19-6-403(1)(a)[(v)] (vi) in order to provide or contract to provide information,
11 opinions, or advice relating to underground storage tank management, release abatement,
12 investigation, corrective action, or evaluation for a fee, or in connection with the services for which
13 a fee is charged; and
14 (ii) has submitted an application to the board and received a written statement of
15 certification from the board.
16 (b) "Certified underground storage tank consultant" does not include:
17 (i) an employee of the owner or operator of the underground storage tank, or an employee
18 of a business operation that has a business relationship with the owner or operator of the
19 underground storage tank, and that markets petroleum products or manages underground storage
20 tanks; or
21 (ii) persons licensed to practice law in this state who offer only legal advice on
22 underground storage tank management, release abatement, investigation, corrective action, or
23 evaluation.
24 (7) "Closed" means an underground storage tank no longer in use that has been:
25 (a) emptied and cleaned to remove all liquids and accumulated sludges; and
26 (b) either removed from the ground or filled with an inert solid material.
27 (8) "Corrective action plan" means a plan for correcting a release from a petroleum storage
28 tank that includes provisions for all or any of the following:
29 (a) cleanup or removal of the release;
30 (b) containment or isolation of the release;
31 (c) treatment of the release;

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1 (d) correction of the cause of the release;
2 (e) monitoring and maintenance of the site of the release;
3 (f) provision of alternative water supplies to persons whose drinking water has become
4 contaminated by the release; or
5 (g) temporary or permanent relocation, whichever is determined by the executive secretary
6 to be more cost-effective, of persons whose dwellings have been determined by the executive
7 secretary to be no longer habitable due to the release.
8 (9) "Costs" means any monies expended for:
9 (a) investigation;
10 (b) abatement action;
11 (c) corrective action;
12 (d) judgments, awards, and settlements for bodily injury or property damage to third
13 parties;
14 (e) legal and claims adjusting costs incurred by the state in connection with judgments,
15 awards, or settlements for bodily injury or property damage to third parties; or
16 (f) costs incurred by the state risk manager in determining the actuarial soundness of the
17 fund.
18 (10) "Covered by the fund" means the requirements of Section 19-6-424 have been met.
19 (11) "Dwelling" means a building that is usually occupied by a person lodging there at
20 night.
21 (12) "Enforcement proceedings" means a civil action or the procedures to enforce orders
22 established by Section 19-6-425.
23 (13) "Executive secretary" means the executive secretary of the board.
24 (14) "Facility" means all underground storage tanks located on a single parcel of property
25 or on any property adjacent or contiguous to that parcel.
26 h [ (15) "Fee" means the environmental assurance fee imposed under Section 19-6-410.5. ] h
27 h [ [ ] (15) [ ] ] [ (16) ] h "Fund" means the Petroleum Storage Tank h TRUST h Fund created in
27a Section 19-6-409.
28 h [ [ ] (16) [ ] ] [ (17) ] h "Loan fund" means the Petroleum Storage Tank Loan Fund created in
28a Section
29 19-6-405.3.
30 h [ [ ] (17) [ ] ] [ (18) ] h "Operator" means any person in control of or who is responsible on a
30a daily
31 basis for the maintenance of an underground storage tank that is in use for the storage, use, or

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1 dispensing of a regulated substance.
2 h [ [ ] (18) [ ] ] [ (19) ] h "Owner" means:
3 (a) in the case of an underground storage tank in use on or after November 8, 1984, any
4 person who owns an underground storage tank used for the storage, use, or dispensing of a
5 regulated substance; and
6 (b) in the case of any underground storage tank in use before November 8, 1984, but not
7 in use on or after November 8, 1984, any person who owned the tank immediately before the
8 discontinuance of its use for the storage, use, or dispensing of a regulated substance.
9 h [ [ ] (19) [ ] ] [ (20) ] h "Petroleum" includes crude oil or any fraction of crude oil that is liquid at
9a 60
10 degrees Fahrenheit and at a pressure of 14.7 pounds per square inch absolute.
11 h [ [ ] (20) [ ] ] [ (21)(a) ] h "Petroleum storage tank" means a tank that:
12 [(a)] (i) is underground;
13 [(b)] (ii) is regulated under Subtitle I of the Resource Conservation and Recovery Act, 42
14 U.S.C. Section 6991c, et seq.; and
15 [(c)] (iii) contains petroleum; or
16 (b) is a tank that the owner or operator voluntarily submits for participation in the
17 Petroleum Storage Tank h TRUST h Fund under Section 19-6-415.
18 [(28)] h [(22) ] (21) h "[Underground] Petroleum Storage Tank Account" means the
18a account created
19 in Section 19-6-405.5.
20 h [(23) ] (22) h "Program" means the Environmental Assurance Program under Section
20a 19-6-410.5.
21 [(21)] h [(24) ] (23) h "Property damage" means physical injury to or destruction of
21a tangible property
22 including loss of use of that property.
23 [(22)] h [ (25) ] (24) h "Regulated substance" means petroleum and petroleum-based
23a substances
24 comprised of a complex blend of hydrocarbons derived from crude oil through processes of
25 separation, conversion, upgrading, and finishing, and includes motor fuels, jet fuels, distillate fuel
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26 oils, residual fuel oils, lubricants, petroleum solvents, and used oils.
27 [(23)] h [(26) ] (25) h "Release" means any spilling, leaking, emitting, discharging,
27a escaping,
28 leaching, or disposing from an underground storage tank or petroleum storage tank. The entire
29 release is considered a single release.
30 [(24)] h [ (27) ] (26) h (a) "Responsible party" means any person who:
31 (i) is the owner or operator of a facility;

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1 (ii) owns or has legal or equitable title in a facility or an underground storage tank;
2 (iii) owned or had legal or equitable title in the facility at the time any petroleum was
3 received or contained at the facility;
4 (iv) operated or otherwise controlled activities at the facility at the time any petroleum was
5 received or contained at the facility; or
6 (v) is an underground storage tank installation company.
7 (b) "Responsible party" as defined in Subsections h [(27) ] (26) h (a)(i), (ii), and (iii) does
7a not include:
8 (i) any person who is not an operator and, without participating in the management of a
9 facility and otherwise not engaged in petroleum production, refining, and marketing, holds indicia
10 of ownership:
11 (A) primarily to protect his security interest in the facility; or
12 (B) as a fiduciary or custodian under Title 75, Uniform Probate Code, or under an
13 employee benefit plan; or
14 (ii) governmental ownership or control of property by involuntary transfers as provided
15 in CERCLA Section 101(20)(D), 42 U.S.C. Section 9601(20)(D).
16 (c) The exemption created by Subsection (b)(i)(B) does not apply to actions taken by the
17 state or its officials or agencies under this part.
18 (d) The terms and activities "indicia of ownership," "primarily to protect a security
19 interest," "participation in management," and "foreclosure on property and postforeclosure
20 activities," under this part shall be in accordance with 40 CFR 300.1100, National Contingency
21 Plan.
22 (e) The terms "participation in management" and "indicia of ownership" as defined in 40
23 CFR 300.1100, National Contingency Plan, include and apply to the fiduciaries listed in
24 Subsection [(23)] h [ (27) ] (26) h (b)(i)(B).
25 [(25)] h [ (28) ] (27) h "Soil test" means a test, established or approved by board rule, to
25a detect the
26 presence of petroleum in soil.
27 [(26)] h [ (29) ] (28) h "State cleanup appropriation" means the money appropriated by the
27a Legislature
28 to the department [under Section 19-6-409] to fund the investigation, abatement, and corrective
29 action regarding releases not covered by the fund [and not on the national priority list as defined
30 in Section 19-6-302].
31 [(27)] h [ (30) ] (29) h "Underground storage tank" means any tank regulated under
31a Subtitle I,

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1 Resource Conservation and Recovery Act, 42 U.S.C. Section 6991c, et seq., including:
2 (a) a petroleum storage tank;
3 (b) underground pipes and lines connected to a storage tank; and
4 (c) any underground ancillary equipment and containment system.
5 [(29)] h [ (31) ] (30) h "Underground storage tank installation company" means any
5a person, firm,
6 partnership, corporation, governmental entity, association, or other organization who installs
7 underground storage tanks.
8 [(30)] h [ (32) ] (31) h "Underground storage tank installation company permit" means a
8a permit issued
9 to an underground storage tank installation company by the executive secretary.
10 [(31)] h [ (33) ] (32) h "Underground storage tank technician" means a person employed
10a by and acting
11 under the direct supervision of a certified underground storage tank consultant to assist in carrying
12 out the functions described in Subsection (6)(a).
13 Section 2. Section 19-6-403 is amended to read:
14 19-6-403. Powers and duties of board.
15 (1) (a) The board shall regulate underground storage tanks and petroleum storage tanks
16 by applying the provisions of this part and by making rules for:
17 (i) certification of tank installers, inspectors, testers, and removers;
18 (ii) registration of tanks;
19 (iii) administration of the petroleum storage tank program;
20 (iv) format and required information regarding records to be kept by tank owners or
21 operators who are participating in the fund;
22 [(iv)] (v) voluntary participation in the fund for above ground petroleum storage tanks and
23 tanks exempt from regulation under 40 C.F.R., Part 280, Subpart (B), and specified in Section
24 19-6-415; and
25 [(v)] (vi) certification of underground storage tank consultants, including requirements for
26 minimum education or experience, which rules shall recognize the educational background of a
27 professional engineer licensed under Title 58, Chapter 22, Professional Engineers and Land
28 Surveyors Licensing Act, as meeting the education requirements for certification, but shall require
29 proof of experience that meets certification requirements.
30 (b) The board shall make rules in accordance with Title 63, Chapter 46a, Utah
31 Administrative Rulemaking Act, adopting requirements for underground storage tanks contained

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1 in Subtitle I of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6991c, et seq.,
2 and other future applicable final federal regulations.
3 (2) The board shall ensure that the rules made under the authority of Subsection (1) meet
4 federal requirements for the state's assumption of primacy in the regulation of underground storage
5 tanks, as provided in Section 9004 of the Resource Conservation and Recovery Act, 42 U.S.C.
6 Section 6991c, et seq.
7 Section 3. Section 19-6-404 is amended to read:
8 19-6-404. Powers and duties of executive secretary.
9 (1) The executive secretary shall administer the h [ underground storage tank program and ] h
10 petroleum storage tank program established in this part.
11 (2) As necessary to meet the requirements or carry out the purposes of this part, the
12 executive secretary may:
13 (a) advise, consult, and cooperate with other persons;
14 (b) employ persons;
15 (c) authorize a certified employee or a certified representative of the department to conduct
16 facility inspections and reviews of records required to be kept by this part and by rules made under
17 this part;
18 (d) encourage, participate in, or conduct studies, investigation, research, and
19 demonstrations;
20 (e) collect and disseminate information;
21 (f) enforce rules made by the board and any requirement in this part by issuing notices and
22 orders;
23 (g) review plans, specifications, or other data;
24 (h) represent the state in all matters pertaining to interstate underground storage tank
25 management and control, including, with the concurrence of the executive director, entering into
26 interstate compacts and other similar agreements;
27 (i) enter into contracts or agreements with political subdivisions for the performance of
28 any of the department's responsibilities under this part if:
29 (i) [such a] the contract or agreement is not prohibited by state or federal law and will not
30 result in a loss of federal funding; and
31 (ii) the executive secretary determines that:

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1 (A) the political subdivision is willing and able to satisfactorily discharge its
2 responsibilities under the contract or agreement; and
3 (B) the contract or agreement will be practical and effective;
4 (j) take any necessary enforcement action authorized under this part;
5 (k) require an owner or operator of an underground storage tank to:
6 (i) furnish information or records relating to the tank, its equipment, and contents;
7 (ii) monitor, inspect, test, or sample the tank, its contents, and any surrounding soils, air,
8 or water; or
9 (iii) provide access to the tank at reasonable times;
10 (l) take any abatement, investigative, or corrective action as authorized in this part; and
11 (m) enter into agreements or issue orders to apportion percentages of liability of
12 responsible parties under Section 19-6-424.5.
13 (3) Except as otherwise provided in Subsection 19-6-414 (3), appeals of decisions made
14 by the executive secretary under this part shall be made to the board.
15 Section 4. Section 19-6-405.5 is amended to read:
16 19-6-405.5. Creation of restricted account.
17 (1) There is created in the General Fund a restricted account known as the [Underground]
18 Petroleum Storage Tank h RESTRICTED h Account.
19 (2) All penalties imposed under this part shall be deposited in this account. Specified
20 program funds under this part that are unexpended at the end of the fiscal year lapse into this
21 account.
22 (3) The Legislature shall appropriate the money in the account to the department for the
23 costs of administering the [underground] petroleum storage tank program under this part.
24 Section 5. Section 19-6-407 is amended to read:
25 19-6-407. Underground storage tank registration -- Change of ownership or
26 operation -- Civil penalty.
27 (1) (a) Each owner or operator of an underground storage tank shall register the tank with
28 the executive secretary if the tank:
29 (i) is in use; or
30 (ii) was closed after January 1, 1974.
31 (b) If a new person assumes ownership or operational responsibilities for an underground

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1 storage tank, that person shall inform the executive secretary of the change within 30 days after
2 the change occurs.
3 (c) Each installer of an underground storage tank shall notify the executive secretary of
4 the completed installation within 60 days following the installation of an underground storage
5 tank.
6 (2) The executive secretary may issue a notice of agency action assessing a civil penalty
7 in the amount of $1,000 if an owner, operator, or installer, of a petroleum or underground storage
8 tank fails to register the tank or provide notice as required in Subsection (1).
9 (3) The penalties collected under authority of this section shall be deposited in the
10 [Underground] Petroleum Storage Tank h RESTRICTED h Account created in Section 19-6-405.5.
11 Section 6. Section 19-6-408 is amended to read:
12 19-6-408. Underground storage tank registration fee.
13 (1) The department may assess an annual underground storage tank registration fee against
14 owners or operators of underground storage tanks that have not been closed. These fees shall be:
15 (a) billed per facility;
16 (b) due on July 1 annually;
17 (c) deposited with the department as dedicated credits; [and]
18 (d) used by the department for the administration of the underground storage tank program
19 outlined in this part; and
20 (e) established under Section 63-38-3.2.
21 (2) (a) In addition to the fee under Subsection (1), an owner or operator who elects to
22 demonstrate financial assurance through a mechanism other than the Environmental Assurance
23 Program shall pay a processing fee of:
24 (i) for fiscal year 1997-98, $1,000 for each financial assurance mechanism document
25 submitted to the division for review; and
26 (ii) on and after July 1, 1998, a processing fee established under Section 63-38-3.2.
27 (b) If a combination of financial assurance mechanisms is used to demonstrate financial
28 assurance, the fee under Subsection (2)(a) shall be paid for each document submitted.
29 (c) As used in this Subsection (2), "financial assurance mechanism document" may be a
30 single document that covers more than one facility through a single financial assurance
31 mechanism.

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1 [(2)] (3) Any funds provided for administration of the underground storage tank program
2 under this section that are not expended at the end of the fiscal year lapse into the [Underground]
3 Petroleum Storage Tank h RESTRICTED h Account created in Section 19-6-405.5.
4 [(3) In establishing fees, the department shall follow the procedures of Section 63-38-3.2.]
5 (4) The executive secretary shall provide all owners or operators who pay the annual
6 underground storage tank registration fee a certificate of registration.
7 (5) (a) The executive secretary may issue a notice of agency action assessing a civil
8 penalty of $1,000 per facility if an owner or operator of an underground storage tank facility fails
9 to pay the required fee within 60 days after the July 1 due date.
10 (b) The registration fee and late payment penalty accrue interest at 12% per annum.
11 (c) If the registration fee, late payment penalty, and interest accrued under this subsection
12 are not paid in full within 60 days after the July 1 due date any certificate of compliance issued
13 prior to the July 1 due date lapses. The executive secretary may not reissue the certificate of
14 compliance until full payment under this subsection is made to the department.
15 (d) The executive secretary may waive any penalty assessed under this subsection if no
16 fuel has been dispensed from the tank on or after July 1, 1991.
17 Section 7. Section 19-6-409 is amended to read:
18 19-6-409. Petroleum Storage Tank h Trust h Fund created -- Source of revenues.
19 (1) (a) There is created an expendable trust fund entitled the Petroleum Storage Tank
19a h TRUST h Fund.
20 (b) The sole sources of revenues for the fund are:
21 (i) petroleum storage tank fees under Section 19-6-411;
22 (ii) underground storage tank installation company permit fees under Section 19-6-411;
23 (iii) the environmental [surcharge assessed] assurance fee paid under Section [19-6-410]
24 19-6-410.5; and
25 (iv) costs recovered under this part.
26 (c) Interest earned on fund monies shall be deposited into the fund.
27 (2) Fund monies may be used to pay:
28 (a) costs as provided in [this part] Section 19-6-419; and
29 (b) for the administration of the fund and the environmental [surcharge] assurance program
30 and fee h UNDER SECTION 19-6-410.5 h .
31 (3) Costs for the administration of the fund and the environmental [surcharge] assurance

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1 fee shall be appropriated by the Legislature.
2 (4) The executive secretary may expend monies from the fund for:
3 (a) legal and claims adjusting costs incurred by the state in connection with claims,
4 judgments, awards, or settlements for bodily injury or property damage to third parties;
5 (b) costs incurred by the state risk manager in determining the actuarial soundness of the
6 fund; and
7 (c) other costs as provided in this part.
8 [(5) Money in the Petroleum Storage Tank Fund in excess of $18,000,000 may be
9 appropriated by the Legislature to either or both of the following:]
10 [(a) the loan fund for purposes stated in Section 19-6-405.3; or]
11 [(b) the department to be applied to the costs of investigation, abatement, and corrective
12 action regarding releases not covered by the fund and not on the national priority list as defined
13 in Section 19-6-302.]
14 [(6) The board shall:]
15 [(a) establish by rule criteria for determining priorities for taking action or expending
16 money under Subsection (5)(b); and]
17 [(b) give due emphasis to releases that present a threat to public health or the
18 environment.]
19 [(c) All funds appropriated to the department under Subsections (3) and (5)(b) that are not
20 expended or committed at the end of the fiscal year lapse into the Underground Storage Tank
21 Account.]
22 (5) For fiscal year 1997-98, money in the Petroleum Storage Tank h TRUST h Fund, up to a
22a maximum
23 of $2,200,000, may be appropriated by the Legislature to the department as nonlapsing funds to
24 be applied to the costs of investigation, abatement, and corrective action regarding releases not
25 covered by the fund and not on the national priority list as defined in Section 19-6-302.
26 Section 8. Section 19-6-410.5 is enacted to read:
27 19-6-410.5. Environmental assurance program -- Petroleum fee.
28 (1) There is created an Environmental Assurance Program. The program shall provide to
29 participating owners and operators, upon payment of the fee imposed under Subsection (2),
30 assistance with the costs of investigation, abatement, and corrective action regarding releases at
31 facilities participating in the program h , h to the extent provided under Section h [19-6-409 ]
31a 19-6-419 h .

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1 (2) Participation in the program is voluntary.
2 (3) (a) There is assessed of all participants in the program the greater of:
3 (i) an environmental assurance fee of 1/2 cent per gallon on all petroleum delivered to any
4 tank participating in the program; or
5 (ii) an environmental assurance fee of $250 annually for each tank participating in the
6 program.
7 (b) The department shall deposit revenue from the fee in the Petroleum Storage Tank
7a h TRUST h
8 Fund.
9 (c) Revenue collected under this section shall be used solely for the purposes under
10 Section 19-6-409.
11 (4) (a) The department shall by rule establish procedures and due dates for payment of the
12 fee.
13 (b) The rules shall include provisions that:
14 (i) if the fee is not paid on or before the due date established by rule, the department may
15 impose a late penalty of $60 for each facility for which the fee is overdue;
16 (ii) the fee and the late penalty accrue interest at 12% per annum;
17 (iii) if the fee, the late penalty, and all accrued interest are not received by the department
18 within 60 days of the due date established by rule, the eligibility of the owner or operator to
19 receive payments for claims against the fund lapses; and
20 (iv) in order for the owner or operator to reinstate eligibility to receive payments for claims
21 against the fund, the owner or operator shall meet the requirements of Subsection 19-6-428(3).
22 Section 9. Section 19-6-411 is amended to read:
23 19-6-411. Petroleum storage tank fee.
24 (1) In addition to the underground storage tank registration fee paid in Section 19-6-408,
25 the owner or operator of a petroleum storage tank who elects to participate in the environmental
26 assurance program under Section 19-6-410.5 shall also pay an annual petroleum storage tank fee
27 to the department for each facility as follows:
28 (a) on and after July 1, 1990, through June 30, 1993, an annual fee of:
29 (i) $250 for each tank:
30 (A) located at a facility engaged in petroleum production, refining, or marketing; or
31 (B) with an annual monthly throughput of more than 10,000 gallons; and

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1 (ii) $125 for each tank:
2 (A) not located at a facility engaged in petroleum production, refining, or marketing; and
3 (B) with an annual monthly throughput of 10,000 gallons or less;
4 (b) on and after July 1, 1993, through June 30, 1994, an annual fee of:
5 (i) $150 for each tank:
6 (A) located at a facility engaged in petroleum production, refining, or marketing; or
7 (B) with an average monthly throughput of more than 10,000 gallons; and
8 (ii) $75 for each tank:
9 (A) not located at a facility engaged in petroleum production, refining, or marketing; and
10 (B) with an average monthly throughput of 10,000 gallons or less; and
11 (c) on and after July 1, 1994, an annual fee of:
12 (i) $50 for each tank in a facility with an annual facility throughput rate of 400,000 gallons
13 or less;
14 (ii) $150 for each tank in a facility with an annual facility throughput rate of more than
15 400,000 gallons; and
16 (iii) $150 for each tank in a facility regarding which:
17 (A) the facility's throughput rate is not reported to the department within 30 days after the
18 date this throughput information is requested by the department; or
19 (B) the owner or operator elects to pay the fee under this subsection, rather than report
20 under Subsection (1)(c)(i) or (ii).
21 (2) (a) As a condition of [permitting,] receiving a permit and being eligible for benefits
22 under Section 19-6-419 from the Petroleum Storage Tank h TRUST h Fund, each underground storage
22a tank
23 installation company shall pay to the department the following fees to be deposited in the fund:
24 (i) an annual fee of:
25 (A) $2,000 per underground storage tank installation company if the installation company
26 has installed 15 or fewer underground storage tanks within the 12 months preceding the fee due
27 date; or
28 (B) $4,000 per underground storage tank installation company if the installation company
29 has installed 16 or more underground storage tanks within the 12 months preceding the fee due
30 date; and
31 (ii) $200 for each underground storage tank installed in the state, to be paid prior to

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1 completion of installation.
2 (b) The board shall make rules specifying which portions of an underground storage tank
3 installation shall be subject to the permitting fees when less than a full underground storage tank
4 system is installed.
5 (3) (a) Fees under [Subsections] Subsection (1) [and (2)(a)(i)] are due on or before July
6 1 annually.
7 (b) If the department does not receive the fee on or before July 1 [or before the installation
8 under Subsection (2)(a)(ii) is completed], the department shall impose a late penalty of $60 per
9 facility [or per installation company].
10 (c) (i) The fee and the late penalty accrue interest at 12% per annum.
11 [(4) (a) If the fee, late penalty, and all accrued interest due under Subsection (3)(a) are not
12 received by the department within 60 days after July 1, the issued certificate of compliance or
13 underground storage tank installation company permit, and eligibility to receive payments for
14 claims against the fund lapse on the 61st day after July 1.]
15 [(b) If the fee, late penalty, and all accrued interest due under Subsection (2)(a)(ii) are not
16 received by the department within 60 days after the underground storage tank installation is
17 completed, the issued underground storage tank installation company permit and eligibility to
18 receive payments for claims against the fund lapse on the 61st day after the tank installation is
19 completed.]
20 [(c) The executive secretary may not reissue the certificate of compliance or underground
21 storage tank installation company permit until the fee, late penalty, and all accrued interest are
22 received by the department.]
23 (ii) If the fee, the late penalty, and all accrued interest are not received by the department
24 within 60 days after July 1, the eligibility of the owner or operator to receive payments for claims
25 against the fund lapses on the 61st day after July 1.
26 (iii) In order for the owner or operator to reinstate eligibility to receive payments for
27 claims against the fund, the owner or operator shall meet the requirements of Subsection
28 19-6-428(3).
29 (4) (a) (i) Fees under Subsection (2)(a)(i) are due on or before July 1 annually. If the
30 department does not receive the fees on or before July 1, the department shall impose a late penalty
31 of $60 per installation company. The fee and the late penalty accrue interest at 12% per annum.

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1 (ii) If the fee, late penalty, and all accrued interest due are not received by the department
2 within 60 days after July 1, the underground storage tank installation company's permit and
3 eligibility to receive payments for claims against the fund lapse on the 61st day after July 1.
4 (b) (i) Fees under Subsection (2)(a)(ii) are due prior to completion of installation. If the
5 department does not receive the fees prior to completion of installation, the department shall
6 impose a late penalty of $60 per facility. The fee and the late penalty accrue interest at 12% per
7 annum.
8 (ii) If the fee, late penalty, and all accrued interest are not received by the department
9 within 60 days after the underground storage tank installation is completed, eligibility to receive
10 payments for claims against the fund for that tank lapse on the 61st day after the tank installation
11 is completed.
12 (c) The executive secretary may not reissue the underground storage tank installation
13 company permit until the fee, late penalty, and all accrued interest are received by the department.
14 (5) If the state risk manager determines the fees established in Subsections (1) and (2) and
15 the environmental [surcharge] assurance fee established in Section [19-6-410] 19-6-410.5 are
16 insufficient to maintain the fund on an actuarially sound basis, he shall petition the Legislature to
17 increase the petroleum storage tank and underground storage tank installation company permit
18 fees, and the environmental assurance fee to a level that will sustain the fund on an actuarially
19 sound basis.
20 (6) The provisions of this subsection take precedence over all other provisions of this
21 section:
22 (a) when a petroleum storage tank is initially registered with the executive secretary, the
23 department shall assess and collect a petroleum storage tank fee of $250 from the owner or
24 operator for that fiscal year; and
25 (b) the department may not assess any other petroleum storage tank fee from the owner
26 or operator for that fiscal year.
27 (7) The executive secretary may waive all or part of the fees required to be paid on or
28 before May 5, 1997, for a petroleum storage tank under this section if no fuel has been dispensed
29 from the tank on or after July 1, 1991.
30 (8) (a) Each petroleum storage tank or underground storage tank, for which payment of
31 fees has been made and other requirements have been met to qualify for a certificate of compliance

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1 under this part, shall be issued a form of identification, as determined by the board under
2 Subsection (8)(b).
3 (b) The board shall make rules providing for the identification, through a tag or other
4 readily identifiable method, of petroleum storage tanks or underground storage tanks under
5 Subsection (8)(a) that qualify for a certificate of compliance under this part.
6 Section 10. Section 19-6-412 is amended to read:
7 19-6-412. Petroleum storage tank -- Certificate of compliance.
8 (1) (a) Beginning July 1, 1990, an owner or operator of a petroleum storage tank may
9 obtain a certificate of compliance for the facility.
10 (b) Effective July 1, 1991, each owner or operator of a petroleum storage tank shall have
11 a certificate of compliance for the facility.
12 (2) The executive secretary shall issue a certificate of compliance if:
13 (a) the owner or operator has a certificate of registration;
14 (b) [the petroleum storage tank fee has been paid] the owner or operator demonstrates it
15 is participating in the Environmental Assurance Program under Section 19-6-410.5, or otherwise
16 demonstrates compliance with financial assurance requirements as defined by rule;
17 (c) all state and federal statutes, rules, and regulations have been substantially complied
18 with; and
19 (d) all tank test requirements of Section 19-6-413 have been met.
20 (3) If the ownership of or responsibility for the petroleum storage tank changes, the
21 certificate of compliance is still valid unless it has been revoked or has lapsed.
22 (4) The executive secretary may issue a certificate of compliance for a period of less than
23 one year to maintain an administrative schedule of certification.
24 (5) The executive secretary shall reissue a certificate of compliance if the owner or
25 operator of an underground storage tank has complied with the requirements of Subsection (2).
26 (6) If the owner or operator electing to participate in the program has a number of tanks
27 in an area where the executive secretary finds it would be difficult to accurately determine which
28 of the tanks may be the source of a release, the owner may only elect to place all of the tanks in
29 the area in the program, but not just some of the tanks in the area.
30 Section 11. Section 19-6-414 is amended to read:
31 19-6-414. Grounds for revocation of certificate of compliance and ineligibility for

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1 payment of costs from fund.
2 (1) If the executive secretary determines that any of the requirements of Subsection
3 19-6-412 (2) and Section 19-6-413 have not been met, the executive secretary shall notify the
4 owner or operator by certified mail that:
5 (a) his certificate of compliance may be revoked;
6 (b) if he is participating in the program, he is violating the eligibility requirements for the
7 fund; and
8 (c) he shall demonstrate his compliance with this part within 60 days after receipt of the
9 notification or his certificate of compliance will be revoked and if participating in the program he
10 will be ineligible to receive payment for claims against the fund.
11 (2) If the executive secretary determines the owner's or operator's compliance problems
12 have not been resolved within 60 days after receipt of the notification in Subsection (1), the
13 executive secretary shall send written notice to the owner or operator that the owner's or operator's
14 certificate of compliance is revoked and he is no longer eligible for payment of costs from the
15 fund.
16 (3) Revocation of certificates of compliance may be appealed to the executive director.
17 Section 12. Section 19-6-415 is amended to read:
18 19-6-415. Voluntary participation of tanks.
19 (1) An underground storage tank exempt from regulation under 40 C.F.R., Part 280,
20 Subpart A, may become eligible for payments from the Petroleum Storage Tank h TRUST h Fund if it:
21 [(1)] (a) (i) is a farm or residential tank with a capacity of 1,100 gallons or less and is used
22 for storing motor fuel for noncommercial purposes;
23 [(b)] (ii) is used for storing heating oil for consumptive use on the premises where stored;
24 or
25 [(c)] (iii) is used for any oxygenate blending component for motor fuels;
26 [(2)] (b) complies with the requirements of Section 19-6-412; [and]
27 [(3)] (c) meets other requirements established by rules made under Section 19-6-403; and
28 (d) pays h [ equivalent ] h registration and tank fees and environmental assurance fees
28a h , EQUIVALENT TO THOSE FEES h outlined
29 in Sections 19-6-408, 19-6-410.5, and 19-6-411.
30 (2) An above ground petroleum storage tank may become eligible for payments from the
31 Petroleum Storage Tank h TRUST h Fund if the owner or operator:

lilac-February 27, 1997

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1 (a) pays h [ the ] THOSE FEES THAT ARE h equivalent to the registration and tank fees
1a and environmental assurance fees
2 under Sections 19-6-408, 19-6-410.5, and 19-6-411;
3 (b) complies with the requirements of Section 19-6-412; and
4 (c) meets other requirements established by rules made under Section 19-6-403.
5 Section 13. Section 19-6-415.5 is enacted to read:
6 19-6-415.5. State-owned underground tanks to participate in program.
7 Any underground storage tank owned or leased by the state of Utah and subject to the
8 financial assurance requirements established by division rule shall participate in the program.
9 Section 14. Section 19-6-417 is amended to read:
10 19-6-417. Use of fund revenues to investigate release from petroleum storage tank.
11 If the executive secretary is notified of or otherwise becomes aware of a release or
12 suspected release of petroleum, he may expend revenues from the fund to investigate the release
13 or suspected release if he has reasonable cause to believe the release is from a tank that is covered
14 by the fund.
15 Section 15. Section 19-6-419 is amended to read:
16 19-6-419. Costs covered by the fund -- Costs paid by owner or operator -- Payments
17 to third parties -- Apportionment of costs.
18 (1) If all requirements of this part have been met and a release occurs from a tank that is
19 covered by the fund, the costs per release shall be covered as provided under this section.
20 (2) The responsible party shall pay:
21 (a) the first $10,000 of costs; and
22 (b) (i) all costs over $1,000,000, if the release was from a tank:
23 (A) located at a facility engaged in petroleum production, refining, or marketing; or
24 (B) with an average monthly facility throughput of more than 10,000 gallons; and
25 (ii) all costs over $500,000, if the release was from a tank:
26 (A) not located at a facility engaged in petroleum production, refining, or marketing; and
27 (B) with an average monthly facility throughput of 10,000 gallons or less.
28 (3) If money is available in the fund and the responsible party has paid costs of $10,000,
29 the executive secretary shall pay costs from the fund in an amount not to exceed:
30 (a) $990,000 if the release was from a tank:
31 (i) located at a facility engaged in petroleum production, refining, or marketing; or

lilac-February 27, 1997

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1 (ii) with an average monthly facility throughput of more than 10,000 gallons; and
2 (b) $490,000 if the release was from a tank:
3 (i) not located at a facility engaged in petroleum production, refining, or marketing; and
4 (ii) with an average monthly facility throughput of 10,000 gallons or less.
5 (4) The total costs of tank releases regarding any responsible party that may be paid in any
6 fiscal year by fund monies are:
7 (a) $990,000 for a responsible party of one to 99 petroleum storage tanks; or
8 (b) $1,990,000 for a responsible party of 100 or more petroleum storage tanks.
9 (5) (a) In authorizing payments for costs from the fund, the executive secretary shall
10 apportion monies first to legal, adjusting, and actuarial expenses incurred by the state; expenses
11 incurred in investigation, abatement action, and corrective action; and then to payment of
12 judgments, awards, or settlements to third parties for bodily injury or property damage.
13 (b) The board shall make rules governing the apportionment of costs among third party
14 claimants.
15 Section 16. Section 19-6-420 is amended to read:
16 19-6-420. Releases -- Abatement actions -- Corrective actions.
17 (1) If the executive secretary determines that a release from a petroleum storage tank has
18 occurred, he shall:
19 (a) identify and name as many of the responsible parties as reasonably possible; and
20 (b) determine which responsible parties, if any, are covered by the fund regarding the
21 release in question.
22 (2) Regardless of whether the [responsible parties are] tank generating the release is
23 covered by the fund, the executive secretary may:
24 (a) order the owner or operator to take abatement, investigative, or corrective action,
25 including the submission of a corrective action plan; and
26 (b) if the owner or operator fails to take any of the abatement, investigative, or corrective
27 action ordered by the executive secretary, the executive secretary may take any one or more of the
28 following actions:
29 (i) subject to the conditions in this part, use monies from the fund, if the tank involved is
30 covered by the fund, or state cleanup appropriation to perform investigative, abatement, or
31 corrective action;

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1 (ii) commence an enforcement proceeding;
2 (iii) enter into agreements or issue orders as allowed by Section 19-6-424.5; or
3 (iv) recover costs from responsible parties equal to their proportionate share of liability
4 as determined by Section 19-6-424.5.
5 (3) (a) Subject to the limitations established in Section 19-6-419, the executive secretary
6 shall provide monies from the fund for abatement action for a release generated by a tank covered
7 by the fund if:
8 (i) the owner or operator takes the abatement action ordered by the executive secretary;
9 and
10 (ii) the executive secretary approves the abatement action.
11 (b) If a release presents the possibility of imminent and substantial danger to the public
12 health or the environment, the owner or operator may take immediate abatement action and
13 petition the executive secretary for reimbursement from the fund for the costs of the abatement
14 action. If the owner or operator can demonstrate to the satisfaction of the executive secretary that
15 the abatement action was reasonable and timely in light of circumstances, the executive secretary
16 shall reimburse the petitioner for costs associated with immediate abatement action, subject to the
17 limitations established in Section 19-6-419.
18 (c) The owner or operator shall notify the executive secretary within 24 hours of the
19 abatement action taken.
20 (4) (a) If the executive secretary determines corrective action is necessary, the executive
21 secretary shall order the owner or operator to submit a corrective action plan to address the release.
22 (b) If the owner or operator submits a corrective action plan, the executive secretary shall
23 review the corrective action plan and approve or disapprove the plan.
24 (c) In reviewing the corrective action plan, the executive secretary shall consider the
25 following:
26 (i) the threat to public health;
27 (ii) the threat to the environment; and
28 (iii) the cost-effectiveness of alternative corrective actions.
29 (5) If the executive secretary approves the corrective action plan or develops his own
30 corrective action plan, he shall:
31 (a) approve the estimated cost of implementing the corrective action plan;

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1 (b) order the owner or operator to implement the corrective action plan;
2 (c) (i) if the release is covered by the fund, determine the amount of fund monies to be
3 allocated to an owner or operator to implement a corrective action plan; and
4 (ii) subject to the limitations established in Section 19-6-419, provide monies from the
5 fund to the owner or operator to implement the corrective action plan.
6 (6) (a) The executive secretary may not distribute any monies from the fund for corrective
7 action until the owner or operator obtains the executive secretary's approval of the corrective action
8 plan.
9 (b) An owner or operator who begins corrective action without first obtaining approval
10 from the executive secretary and who is covered by the fund may be reimbursed for the costs of
11 the corrective action, subject to the limitations established in Section 19-6-419, if:
12 (i) the owner or operator submits the corrective action plan to the executive secretary
13 within seven days after beginning corrective action; and
14 (ii) the executive secretary approves the corrective action plan.
15 (7) If the executive secretary disapproves the plan, he shall solicit a new corrective action
16 plan from the owner or operator.
17 (8) If the executive secretary disapproves the second corrective action plan, or if the owner
18 or operator fails to submit a second plan within a reasonable time, the executive secretary may:
19 (a) develop his own corrective action plan; and
20 (b) act as authorized under Subsections (2) and (5).
21 (9) (a) When notified that the corrective action plan has been implemented, the executive
22 secretary shall inspect the location of the release to determine whether or not the corrective action
23 has been properly performed and completed.
24 (b) If the executive secretary determines the corrective action has not been properly
25 performed or completed, he may issue an order requiring the owner or operator to complete the
26 corrective action within the time specified in the order.
27 Section 17. Section 19-6-421 is amended to read:
28 19-6-421. Third party payment restrictions and requirements.
29 (1) If there are sufficient revenues in the fund, and subject to the provisions of Sections
30 19-6-419, 19-6-422, and 19-6-423, the executive secretary shall authorize payment from the fund
31 to third parties regarding a release covered by the fund as provided in Subsection (2) if:

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1 (a) (i) he is notified that a final judgment or award has been entered against the responsible
2 party covered by the fund that determines liability for bodily injury or property damage to third
3 parties caused by a release from the tank; or
4 (ii) approved by the state risk manager, the responsible party has agreed to pay an amount
5 in settlement of a claim arising from the release; and
6 (b) the responsible party has failed to satisfy the judgment or award, or pay the amount
7 agreed to.
8 (2) The executive secretary shall authorize payment to the third parties of the amount of
9 the judgment, award, or amount agreed to subject to the limitations established in Section
10 19-6-419.
11 Section 18. Section 19-6-423 is amended to read:
12 19-6-423. Claim or suit against responsible parties -- Prerequisites for payment from
13 fund to responsible parties or third parties -- Limitations of liability for third party claims.
14 (1) In order to be eligible for payments from the fund, if a responsible party receives actual
15 or constructive notice of an occurrence likely to give rise to a claim, that a suit has been filed, or
16 a claim has been made against him for bodily injury or property damage connected with a release
17 of petroleum from a petroleum storage tank, the responsible party shall:
18 (a) inform the state risk manager immediately of the occurrence, suit, or claim;
19 (b) allow the state risk manager and his legal counsel to participate with the responsible
20 party and his legal counsel in:
21 (i) the defense of any suit;
22 (ii) determination of legal strategy and any other decisions affecting the defense of any
23 suit; and
24 (iii) any settlement negotiations; and
25 (c) conduct the defense of any suit or claim in good faith.
26 (2) The executive secretary may not authorize payment of fund monies for any judgment
27 or award to third parties unless the state risk manager:
28 (a) indicates that he was not prevented from participating in the defense of the suit; and
29 (b) approves the settlement.
30 (3) In making payments to third parties from the fund pursuant to Section 19-6-421, or in
31 funding a corrective action plan pursuant to Section 19-6-420, the executive secretary may not pay

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1 an award or judgment or fund a corrective action plan to the extent that it imposes any liability or
2 makes any payment for:
3 (a) obligations of a responsible party under a workers' compensation, disability benefits,
4 or unemployment compensation law or other similar law;
5 (b) bodily injury to an employee of the responsible party arising from and in the course
6 of his employment or to the spouse, child, parent, brother, sister, heirs, or personal representatives
7 of that employee as a result of that bodily injury;
8 (c) bodily injury or property damage arising from the ownership, maintenance, use, or
9 entrustment to others of any aircraft, motor vehicle, or watercraft;
10 (d) property damage to any property owned by, occupied by, rented to, loaned to, bailed
11 to, or otherwise in the care, custody, or control of the owner or operator except to the extent
12 necessary to complete a corrective action plan;
13 (e) bodily injury or property damage for which the responsible party is obligated to pay
14 damages only by reason of the assumption of liability in a contract or agreement, other than a
15 contract or agreement entered into to meet the financial responsibility requirements of Subtitle I
16 of the Resource Conservation and Recovery Act, 42 U.S.C., Section 6991c, et seq., or this part,
17 or regulations or rules made under either of them;
18 (f) bodily injury or property damage for which the responsible party is liable to a third
19 party solely on account of personal injury to the spouse of that third party;
20 (g) bodily injury or property damage caused by a release from a petroleum storage tank
21 covered by the fund or the cost of a corrective action plan, where the total amount previously paid
22 by the executive secretary to compensate third parties or for funding a corrective action plan in
23 respect to that same accidental release from the covered tank equals [$975,000] $990,000; or
24 (h) bodily injury or property damage caused by a release from a petroleum storage tank
25 covered by the fund or the cost of a corrective action plan when the total amount previously paid
26 by the executive secretary to compensate third parties or for funding corrective action plans in
27 respect to releases from tanks of any one responsible party during any fiscal year equals
28 [$975,000] $990,000 for a responsible party regarding one to 99 petroleum storage tanks or
29 [$1,975,000] $1,990,000 for a responsible party regarding 100 or more petroleum storage tanks.
30 Section 19. Section 19-6-424 is amended to read:
31 19-6-424. Claims not covered by fund.

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1 (1) The executive secretary may not authorize payments from the fund unless:
2 (a) the claim was based on a release occurring during a period for which [a responsible
3 party holds or has previously held a valid certificate of compliance for] that tank was covered by
4 the fund;
5 (b) the claim was made:
6 (i) during a period for which [the responsible party held a valid certificate of compliance
7 for] that tank was covered by the fund; or
8 (ii) (A) within one year after [the end of the period during which the responsible party held
9 a valid certificate of compliance for] that fund-covered tank is closed; or
10 (B) within six months after the end of the period during which the tank was covered by
11 the fund; and
12 (c) there are sufficient revenues in the fund.
13 (2) The executive secretary may not authorize payments from the fund for an underground
14 storage tank installation company unless:
15 (a) the claim was based on a release occurring during the period prior to the issuance of
16 a certificate of compliance;
17 (b) the claim was made within 12 months after the date the tank is issued a certificate of
18 compliance for that tank; and
19 (c) there are sufficient revenues in the fund.
20 (3) The executive secretary may require the claimant to provide additional information as
21 necessary to demonstrate coverage by the fund at the time of submittal of the claim.
22 [(2)] (4) If the Legislature repeals or refuses to reauthorize the program for petroleum
23 storage tanks established in this part, the executive secretary may authorize payments from the
24 fund as provided in this part for claims made until the end of the time period established in
25 Subsection (1) or (2) provided there are sufficient revenues in the fund.
26 Section 20. Section 19-6-425 is amended to read:
27 19-6-425. Violation of part -- Civil penalty -- Suit in district court.
28 (1) Except as provided in Section 19-6-407, any person who violates any requirement of
29 this part or any order issued or rule made under the authority of this part is subject to a civil
30 penalty of not more than $10,000 per day for each day of violation.
31 (2) The executive secretary may enforce any requirement, rule, agreement, or order issued

- 25 -

1 under this part by bringing a suit in the district court in the county where the underground storage
2 tank or petroleum storage tank is located.
3 (3) The department shall deposit the penalties collected under this part in the
4 [Underground] Petroleum Storage Tank h RESTRICTED h Account created under Section 19-6-405.5.
5 Section 21. Section 19-6-426 is amended to read:
6 19-6-426. Limitation of liability of state -- Liability of responsible parties --
7 Indemnification agreement involving responsible parties.
8 (1) This part is not intended to create an insurance program.
9 (2) The fund established in this part shall only provide funds to finance costs for
10 responsible parties who meet the requirements of this part when releases from petroleum storage
11 tanks occur.
12 (3) The assets of the fund, if any, are the sole source of monies to pay claims against the
13 fund.
14 (4) The state is not liable for:
15 (a) any amounts payable from the fund for which the fund does not have sufficient assets;
16 (b) any expenses or debts of the fund; or
17 (c) any claim arising from the creation, management, rate-setting, or any other activity
18 pertaining to the fund.
19 (5) The responsible parties are liable for any costs associated with any release from the
20 underground storage tank system.
21 (6) This part does not preclude a responsible party from enforcing or recovering under any
22 agreement or contract for indemnification associated with a release from the tank or from pursuing
23 any other legal remedies that may be available against any party.
24 (7) If any payment is made under this part, the fund shall be subrogated to all the
25 responsible parties' rights of recovery against any person or organization and the responsible
26 parties shall execute and deliver instruments and papers and do whatever else is necessary to
27 secure the rights. The responsible parties shall do nothing after a release is discovered to prejudice
28 the rights. In the event of recovery by the fund, any amount recovered shall first be used to
29 reimburse the responsible parties for costs they are required to pay pursuant to Section 19-6-419.
30 (8) Parties who elect to participate in the fund do so subject to the conditions and
31 limitations in this section and in this part.

lilac-February 27, 1997

- 26 -

1 Section 22. Section 19-6-428 is enacted to read:
2 19-6-428. Eligibility for participation in the fund.
3 (1) All owners and operators of existing petroleum storage tanks that are covered by the
4 fund on May 5, 1997, may elect to continue to participate in the program by meeting the
5 requirements of this part, including paying the tank fees and environmental assurance fee as
6 provided in Sections 19-6-410.5 and 19-6-411.
7 (2) Any new petroleum storage tanks installed after May 5, 1997, or tanks eligible under
8 Section 19-6-415, may elect to participate in the program by complying with the requirements of
9 this part.
10 (3) All owners and operators of petroleum storage tanks who elect to not participate in the
11 program, including by the use of an alternative financial assurance mechanism, shall comply with
12 this Subsection (3) in order to subsequently participate in the program:
13 (a) perform a tank tightness test and site check, including soil and groundwater samples
14 to demonstrate no release of petroleum exists or adequate remediation of releases as required by
15 board rules;
16 (b) remit to DEQ all tank fees and environmental assurance fees which would have been
17 collected, including an amount equal to any interest which would have accrued on those monies
18 on and after May 5, 1997, or from the date of cessation of participation in the program; and
19 (c) comply with the requirements of this part.
20 Section 23. Section 19-6-429 is enacted to read:
21 19-6-429. False information and claims.
22 (1) Any person who presents or causes to be presented any oral or written statement,
23 knowing the statement contains false information, in order to obtain a certificate of compliance
24 is guilty of a class B misdemeanor.
25 (2) (a) Any person who presents or causes to be presented any claim for payment from the
26 fund, knowing the claim contains materially false information or knowing the claim is not eligible
27 for payment from the fund, is subject to the criminal penalties under Section 76-10-1801 regarding
28 fraud.
29 (b) The level of criminal penalty shall be determined by the value involved, in the same
30 manner as in Section 76-10-1801.
31 Section 24. Section 59-1-403 is amended to read:

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1 59-1-403. Confidentiality -- Penalty -- Application to property tax.
2 (1) Any tax commissioner, agent, clerk, or other officer or employee of the commission
3 or any representative, agent, clerk, or other officer or employee of any county, city, or town may
4 not divulge or make known in any manner any information gained by him from any return filed
5 with the commission. The officials charged with the custody of such returns are not required to
6 produce any of them or evidence of anything contained in them in any action or proceeding in any
7 court, except:
8 (a) in accordance with judicial order;
9 (b) on behalf of the commission in any action or proceeding under this title or other law
10 under which persons are required to file returns with the commission;
11 (c) on behalf of the commission in any action or proceeding to which the commission is
12 a party; or
13 (d) on behalf of any party to any action or proceeding under this title when the report or
14 facts shown thereby are directly involved in such action or proceeding. In any event, the court
15 may require the production of, and may admit in evidence, any portion of reports or of the facts
16 shown by them, as are specifically pertinent to the action or proceeding.
17 (2) This section does not prohibit:
18 (a) a person or his duly authorized representative from receiving a copy of any return or
19 report filed in connection with that person's own tax;
20 (b) the publication of statistics as long as they are classified to prevent the identification
21 of particular reports or returns;
22 (c) the inspection by the attorney general or other legal representative of the state of the
23 report or return of any taxpayer:
24 (i) who brings action to set aside or review the tax based on such report or return;
25 (ii) against whom an action or proceeding is contemplated or has been instituted under this
26 title; or
27 (iii) against whom the state has an unsatisfied money judgment.
28 (3) (a) Notwithstanding Subsection (1) and for purposes of administration, the commission
29 may, by rule, provide for a reciprocal exchange of information with the United States Internal
30 Revenue Service or the revenue service of any other state.
31 (b) Notwithstanding Subsection (1) and for all taxes except individual income tax and

- 28 -

1 corporate franchise tax, the commission may, by rule, share information gathered from returns and
2 other written statements with the federal government, any other state, any of their political
3 subdivisions, or any political subdivision of this state, except as limited by Sections 59-12-209 and
4 59-12-210, if these political subdivisions or the federal government grant substantially similar
5 privileges to this state.
6 (c) Notwithstanding Subsection (1) and for all taxes except individual income tax and
7 corporate franchise tax, the commission may, by rule, provide for the issuance of information
8 concerning the identity and other information of taxpayers who have failed to file tax returns or
9 to pay any tax due.
10 (d) Notwithstanding Subsection (1), the commission shall provide to the Solid and
11 Hazardous Waste Control Board executive secretary, as defined in Section 19-6-102, any records,
12 returns, and other information filed with the commission under Title 59, Chapter 13, Motor and
13 Special Fuel Tax Act, as requested by the executive secretary.
14 (4) Reports and returns shall be preserved for at least three years and then the commission
15 may destroy them.
16 (5) Any person who violates this section is guilty of a class A misdemeanor. If the
17 offender is an officer or employee of the state, he shall be dismissed from office and be
18 disqualified from holding public office in this state for a period of five years thereafter.
19 (6) This part does not apply to the property tax.
20 Section 25. Transfer of funds to new account.
21 All funds currently in the Underground Storage Tank h RESTRICTED h Account created in
21a Section
22 19-6-405.5 shall be transferred to the Petroleum Storage Tank h RESTRICTED h Account created by
22a amendment to
23 Section 19-6-405.5 in this act.
24 Section 26. Repealer.
25 This act repeals:
26 Section 19-6-410, Environmental surcharge on petroleum.
26a h IF THIS BILL AND H.B. 316, TAX ASSESSMENTS, REFUNDS, AND CREDITS, BOTH PASS, IT IS
26b THE INTENT OF THE LEGISLATURE THAT THE REPEAL OF SECTION 19-6-410 IN THIS BILL
26c SUPERSEDE THE AMENDMENTS OF SECTION 19-6-410 IN H.B. 316. h

lilac-February 27, 1997

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Legislative Review Note
as of 1-24-97 2:37 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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