H.B. 368

1

UNDERGROUND STORAGE TANK AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Kay L. McIff
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill increases the coverage limits for participants in the Petroleum Storage Tank
10 Trust Fund.
11 Highlighted Provisions:
12 This bill:
13 . increases the coverage limits for participants in the Petroleum Storage Tank Trust
14 Fund;
15 . expands the uses for which trust fund monies can be used; and
16 . makes technical corrections.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 19-6-409, as last amended by Laws of Utah 2002, Chapter 256
24 19-6-419, as last amended by Laws of Utah 1997, Chapter 172
25 19-6-423, as last amended by Laws of Utah 1997, Chapter 172
26
27 Be it enacted by the Legislature of the state of Utah:

28 Section 1. Section 19-6-409 is amended to read:
29 19-6-409. Petroleum Storage Tank Trust Fund created -- Source of revenues.
30 (1) (a) There is created a private-purpose trust fund entitled the "Petroleum Storage
31 Tank Trust Fund."
32 (b) The sole sources of revenues for the fund are:
33 (i) petroleum storage tank fees paid under Section 19-6-411 ;
34 (ii) underground storage tank installation company permit fees paid under Section
35 19-6-411 ;
36 (iii) the environmental assurance fee and [any] penalties[,] paid under Section
37 19-6-410.5 ; and
38 (iv) [any] interest accrued on [these] revenues listed in this Subsection (1)(b).
39 (c) Interest earned on fund monies shall be deposited into the fund.
40 [(2) Fund monies may be used to pay:]
41 (2) The executive secretary may expend monies from the fund to pay costs:
42 (a) [costs as provided in] covered by the fund under Section 19-6-419 ; [and]
43 [(b) for the administration of the fund and the]
44 (b) of administering the:
45 (i) fund; and
46 (ii) environmental assurance program and fee under Section 19-6-410.5 [.];
47 (c) incurred by the state for a legal service or claim adjusting service provided in
48 connection with a claim, judgement, award, or settlement for bodily injury or property damage
49 to third parties;
50 (d) incurred by the state risk manager in determining the actuarial soundness of the
51 fund;
52 (e) incurred by a third party claiming injury or damages from a release reported on or
53 after May 12, 2009, for hiring a certified underground storage tank consultant:
54 (i) to review an investigation or corrective action by a responsible party; and
55 (ii) in accordance with Subsection (4); and
56 (f) allowed under this part that are not listed under this Subsection (2).
57 (3) Costs for the administration of the fund and the environmental assurance fee shall
58 be appropriated by the Legislature.

59 [(4) The executive secretary may expend monies from the fund for:]
60 [(a) legal and claims adjusting costs incurred by the state in connection with claims,
61 judgments, awards, or settlements for bodily injury or property damage to third parties;]
62 [(b) costs incurred by the state risk manager in determining the actuarial soundness of
63 the fund; and]
64 [(c) other costs as provided in this part.]
65 (4) The executive secretary shall:
66 (a) in paying costs under Subsection (2)(e):
67 (i) determine a reasonable limit on costs paid based on the:
68 (A) extent of the release;
69 (B) impact of the release; and
70 (C) services provided by the certified underground storage tank consultant;
71 (ii) pay, per release, costs for only one certified underground storage tank consultant
72 agreed to by all third parties claiming damages or injury;
73 (iii) include costs paid in the coverage limits allowed under Section 19-6-419 ; and
74 (iv) not pay legal costs of third parties;
75 (b) review and give careful consideration to reports and recommendations provided by
76 a certified underground storage tank consultant hired by a third party; and
77 (c) make reports and recommendations provided under Subsection (4)(b) available on
78 the Division of Environmental Response and Remediation's web site.
79 Section 2. Section 19-6-419 is amended to read:
80 19-6-419. Costs covered by the fund -- Costs paid by owner or operator --
81 Payments to third parties -- Apportionment of costs.
82 (1) If all requirements of this part have been met and a release occurs from a tank that
83 is covered by the fund, the costs per release shall be covered as provided under this section.
84 (2) [The] For releases reported before May 12, 2009, the responsible party shall pay:
85 (a) the first $10,000 of costs; and
86 (b) (i) all costs over $1,000,000 , if the release was from a tank:
87 (A) located at a facility engaged in petroleum production, refining, or marketing; or
88 (B) with an average monthly facility throughput of more than 10,000 gallons; and
89 (ii) all costs over $500,000 , if the release was from a tank:

90 (A) not located at a facility engaged in petroleum production, refining, or marketing;
91 and
92 (B) with an average monthly facility throughput of 10,000 gallons or less.
93 (3) [If] For releases reported before May 12, 2009, if money is available in the fund
94 and the responsible party has paid costs of $10,000, the executive secretary shall pay costs from
95 the fund in an amount not to exceed:
96 (a) $990,000 if the release was from a tank:
97 (i) located at a facility engaged in petroleum production, refining, or marketing; or
98 (ii) with an average monthly facility throughput of more than 10,000 gallons; and
99 (b) $490,000 if the release was from a tank:
100 (i) not located at a facility engaged in petroleum production, refining, or marketing;
101 and
102 (ii) with an average monthly facility throughput of 10,000 gallons or less.
103 [(4) The total costs of tank releases regarding any responsible party that may be paid in
104 any fiscal year by fund monies are:]
105 (4) The executive secretary may pay fund monies to a responsible party up to the
106 following amounts in a fiscal year:
107 (a) $990,000 [for] to a responsible party [of one to 99] owning or operating less than
108 100 petroleum storage tanks; or
109 (b) $1,990,000 [for] to a responsible party [of] owning or operating 100 or more
110 petroleum storage tanks.
111 (5) For a release reported on or after May 12, 2009, the responsible party shall pay:
112 (a) the first $10,000 of costs; and
113 (b) (i) all costs over $2,000,000, if the release was from a tank:
114 (A) located at a facility engaged in petroleum production, refining, or marketing; or
115 (B) with an average monthly facility throughput of more than 10,000 gallons; and
116 (ii) all costs over $1,000,000, if the release was from a tank:
117 (A) not located at a facility engaged in petroleum production, refining, or marketing;
118 and
119 (B) with an average monthly facility throughput of 10,000 gallons or less.
120 (6) For a release reported on or after May 12, 2009, if money is available in the fund

121 and the responsible party has paid costs of $10,000, the executive secretary shall pay costs from
122 the fund in an amount not to exceed:
123 (a) $1,990,000 if the release was from a tank:
124 (i) located at a facility engaged in petroleum production, refining, or marketing; or
125 (ii) with an average monthly facility throughput of more than 10,000 gallons; and
126 (b) $990,000 if the release was from a tank:
127 (i) not located at a facility engaged in petroleum production, refining, or marketing;
128 and
129 (ii) with an average monthly facility throughput of 10,000 gallons or less.
130 (7) The executive secretary may pay fund monies to a responsible party up to the
131 following amounts in a fiscal year:
132 (a) $1,990,000 to a responsible party owning or operating less than 100 petroleum
133 storage tanks; or
134 (b) $3,990,000 to a responsible party owning or operating 100 or more petroleum
135 storage tanks.
136 [(5)] (8) (a) In authorizing payments for costs from the fund, the executive secretary
137 shall apportion monies:
138 (i) first, to the following type of expenses incurred by the state:
139 (A) legal[,];
140 (B) adjusting[,]; and
141 (C) actuarial [expenses incurred by the state; expenses incurred in];
142 (ii) second, to expenses incurred for:
143 (A) investigation[,];
144 (B) abatement action[,]; and
145 (C) corrective action; and [then]
146 (iii) third, to payment of:
147 (A) judgments[,];
148 (B) awards[, or]; and
149 (C) settlements to third parties for bodily injury or property damage.
150 (b) The board shall make rules governing the apportionment of costs among third party
151 claimants.

152 Section 3. Section 19-6-423 is amended to read:
153 19-6-423. Claim or suit against responsible parties -- Prerequisites for payment
154 from fund to responsible parties or third parties -- Limitations of liability for third party
155 claims.
156 (1) (a) [In order to be eligible for] The executive secretary may authorize payments
157 from the fund[, if] to a responsible party if the responsible party receives actual or constructive
158 notice [of an occurrence]:
159 (i) of a release likely to give rise to a claim[, that a]; or
160 (ii) that in connection with a release a:
161 (A) suit has been filed[,]; or [a]
162 (B) claim has been made against [him] the responsible party for:
163 (I) bodily injury; or
164 (II) property damage [connected with a release of petroleum from a petroleum storage
165 tank, the].
166 (b) A responsible party described in Subsection (1)(a) shall:
167 [(a)] (i) inform the state risk manager immediately of [the occurrence] a release, suit, or
168 claim described in Subsection (1)(a);
169 [(b)] (ii) allow the state risk manager and [his] the state risk manager's legal counsel to
170 participate with the responsible party and [his] the responsible party's legal counsel in:
171 [(i)] (A) the defense of [any] a suit;
172 [(ii)] (B) determination of legal strategy [and any];
173 (C) other decisions affecting the defense of [any] a suit; and
174 [(iii) any] (D) settlement negotiations; and
175 [(c)] (iii) conduct the defense of [any] a suit or claim in good faith.
176 (2) The executive secretary may [not] authorize payment of fund monies for [any] a
177 judgment or award to third parties [unless] if the state risk manager:
178 (a) [indicates that he was not prevented from participating] was allowed to participate
179 in the defense of the suit as required under Subsection (1)(b); and
180 (b) approves the settlement.
181 (3) [In making payments to third parties from the fund] The executive secretary may
182 make a payment from the fund to a third party pursuant to Section 19-6-421 [,] or [in funding a]

183 fund a corrective action plan pursuant to Section 19-6-420 [, the executive secretary may not
184 pay an award or judgment or fund a corrective action plan to the extent that it imposes any
185 liability or makes any] if the payment or funding does not impose a liability or make a payment
186 for:
187 (a) [obligations] an obligation of a responsible party [under a] for:
188 (i) workers' compensation[,] benefits;
189 (ii) disability benefits[, or];
190 (iii) unemployment compensation [law or other]; or
191 (iv) other benefits under a similar law;
192 (b) a bodily injury [to an] award to:
193 (i) a responsible party's employee [of the responsible party] arising from and in the
194 course of [his] the employee's employment; or [to]
195 (ii) the spouse, child, parent, brother, sister, heirs, or personal representatives of [that]
196 the employee [as a result of that bodily injury] described in Subsection (3)(b)(i);
197 (c) bodily injury or property damage arising from the ownership, maintenance, use, or
198 entrustment to others of [any] an aircraft, motor vehicle, or watercraft;
199 (d) property damage to [any] a property owned by, occupied by, rented to, loaned to,
200 bailed to, or otherwise in the care, custody, or control of [the owner or operator] a responsible
201 party except to the extent necessary to complete a corrective action plan;
202 (e) bodily injury or property damage for which [the] a responsible party is obligated to
203 pay damages [only] by reason of the assumption of liability in a contract or agreement[, other
204 than a] unless the responsible party entered into the contract or agreement [entered into] to
205 meet the financial responsibility requirements of:
206 (i) Subtitle I of the Resource Conservation and Recovery Act, 42 U.S.C.[, Section] Sec.
207 6991c[,] et seq.[, or];
208 (ii) this part[,]; or
209 (iii) regulations or rules made under [either of them] Subsections (3)(e)(i) and (ii);
210 (f) bodily injury or property damage for which [the] a responsible party is liable to a
211 third party solely on account of personal injury to the third party's spouse [of that third party];
212 (g) bodily injury [or], property damage, or the cost of corrective action caused by [a
213 release from a petroleum storage tank] releases reported before May 12, 2009 that are covered

214 by the fund [or the cost of a corrective action plan, where] if the total amount previously paid
215 by the executive secretary to compensate third parties [or for funding a] and fund corrective
216 action [plan in respect to that same accidental release from the covered tank equals $990,000;
217 or] plans for the releases equals:
218 [(h) bodily injury or property damage caused by a release from a petroleum storage
219 tank covered by the fund or the cost of a corrective action plan when the total amount
220 previously paid by the executive secretary to compensate third parties or for funding corrective
221 action plans in respect to releases from tanks of any one responsible party during any fiscal
222 year equals $990,000 for a responsible party regarding one to 99 petroleum storage tanks or
223 $1,990,000 for a responsible party regarding 100 or more petroleum storage tanks.]
224 (i) $990,000 for a single release; and
225 (ii) for all releases by a responsible party in a fiscal year:
226 (A) $990,000 for a responsible party owning less than 100 petroleum storage tanks;
227 and
228 (B) $1,990,000 for a responsible party owning 100 or more petroleum storage tanks;
229 and
230 (h) bodily injury, property damage, or the cost of corrective action caused releases
231 reported on or after May 12, 2009, covered by the fund if the total amount previously paid by
232 the executive secretary to compensate third parties and fund corrective action plans for the
233 releases equals:
234 (i) $1,990,000 for a single release; and
235 (ii) for all releases by a responsible party in a fiscal year:
236 (A) $1,990,000 for a responsible party owning less than 100 petroleum storage tanks;
237 and
238 (B) $3,990,000 for a responsible party owning 100 or more petroleum storage tanks.




Legislative Review Note
as of 2-27-09 5:40 PM

Office of Legislative Research and General Counsel