Rule 69. Section 280.112 is amended to read as
follows:
Section 280.112.
(a) Except as specified in subsection (d) of
this section, the director of the implementing agency shall require the
guarantor, surety, or institution issuing a letter of credit to place the
amount of funds stipulated by the director, up to the limit of funds provided
by the financial assurance mechanism, into the standby trust if either of the
following provisions applies:
(1) The O/O
fails to establish alternate financial assurance within 60 days after receiving
notice of cancellation of the guarantee, surety bond, letter of credit, or, as
applicable, other financial assurance mechanism and the director determines or
suspects that a release from an underground storage tank covered by the
mechanism has occurred and notifies the O/O of the determination or suspicion
or the O/O has notified the director under subpart E or F of these rules of a
release from an underground storage tank covered by the mechanism.
(2) The conditions of subsection (b)(1) or
(2)(i) or (ii) of this section are satisfied.
(b) The director of the implementing agency
may draw on a standby trust fund when in either of the following situations:
(1) The director makes a final determination
that a release has occurred and immediate or long-term corrective action for
the release is needed, and the O/O, after appropriate notice and opportunity to
comply, has not conducted corrective action as required under 40 C.F.R. Part
280, subpart F.
(2) The director
has received either of the following:
(i)
Certification from the O/O and the third-party liability claimant or claimants
and from attorneys representing the O/O and the third-party liability claimant
or claimants that a third-party liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as principals and as legal
representatives of [insert: owner or operator] and [insert: name and address of
third-party claimant], hereby certify that the claim of bodily injury [and/or]
property damage caused by an accidental release arising from operating [owner's
or operator's] underground storage tank should be paid in the amount of $[
________ ].
[Signatures]
Owner or operator
Attorney for owner or operator
[Notary] Date
[Signatures]
Claimant(s)
Attorney(s) for claimant(s)
[Notary] Date
(ii) A valid final court order establishing a
judgment against the O/O for bodily injury or property damage caused by an
accidental release from an underground storage tank covered by financial
assurance under this subpart and the director determines that the O/O has not
satisfied the judgment.
(c) If the director of the implementing
agency determines that the amount of corrective action costs and third-party
liability claims eligible for payment under subsection (b) of this section may
exceed the balance of the standby trust fund and the obligation of the provider
of financial assurance, then the first priority for payment shall be corrective
action costs necessary to protect human health and the environment. The
director shall pay third-party liability claims in the order in which the
director receives certifications under subsection (b)(2)(i) of this section and
valid court orders under subsection (b)(2)(ii) of this section.
(d) A governmental entity acting as guarantor
under section 280.106(e), the local government guarantee without standby trust,
shall make payments as directed by the director under the circumstances
described in section 280.112(a), (b), and (c).
