Conn. Gen. Stat. § 22a-449f

Current with legislation from the 2024 Regular and Special Sessions.

Section 22a-449f - Application for reimbursement for claims resulting from release of petroleum

(a)Application. Notice of claim. A responsible party may apply to the commissioner for reimbursement for costs paid and payment of costs incurred as a result of a release, or a suspected release, including costs of investigating and remediating a release, or a suspected release, incurred or paid by such party who is determined not to have been liable for any such release. If a person other than a responsible party claims to have suffered bodily injury, property damage or damage to natural resources from a release, the person with such claim shall make reasonable attempts to provide written notice to the responsible party of such claim and if such person cannot provide such notice or if the responsible party does not apply to the commissioner for payment of such claim not later than sixty days after receipt of such notice or such other time as may be agreed to by the parties, the person holding such claim may apply to the commissioner for payment for such damage or bodily injury.

(b)Approval by commissioner or licensed environmental professional.

(1) In addition to all other applicable requirements, a person seeking payment or reimbursement from the underground storage tank petroleum clean-up program established pursuant to section 22a-449c shall demonstrate that when the total costs, expenses or other obligations in response to a release or suspected release (A) are two hundred fifty thousand dollars or less, all labor, equipment and materials provided after October 1, 2005, and all services and activities undertaken after October 1, 2005, are approved, in writing, either by the commissioner or by a licensed environmental professional with a currently valid and effective license issued pursuant to section 22a-133v; and (B) exceed two hundred fifty thousand dollars, all labor, equipment and materials provided after October 1, 2005, and all services and activities undertaken after October 1, 2005, are approved, in writing, by the commissioner, provided the commissioner may authorize, in writing, a licensed environmental professional with a currently valid and effective license issued pursuant to section 22a-133v to approve, in writing, such labor, equipment, materials, services and activities, in lieu of the commissioner. The provisions of this subsection shall apply to all costs, expenses or other obligations for which a person is seeking payment or reimbursement from the program and the commissioner shall not order or make payment or reimbursement from the program for any cost, expense or other obligation, unless the person seeking such payment or reimbursement provides the written approval required by this subdivision. Any written approval provided by a licensed environmental professional pursuant to this subdivision shall be submitted with the application for payment or reimbursement. Any written approval provided by the commissioner pursuant to this subdivision shall not constitute an approval pursuant to any other provision of the general statutes or any regulation.

(2) The fees charged by a licensed environmental professional regarding labor or services rendered in response to a release or suspected release may be included in any application or request for payment or reimbursement from the program. The amount to be paid or reimbursed for such fees may also be established in the schedule adopted by the commissioner pursuant to subsection (b) of section 22a-449e.

(3) Providing it is true and accurate, a licensed environmental professional shall submit an executed certification regarding any approval provided under subdivision (1) of this subsection and section 22a-449p that reads: "I hereby agree that all of the labor, equipment, materials, services, and activities described in or covered by this certification were appropriate under the circumstances to abate an emergency or were performed as part of a plan specifically designed to ensure that the release or suspected release is or has been investigated in accordance with prevailing standards and guidelines and remediated consistent with and to achieve compliance with the remediation standards adopted under section 22a-133k of the general statutes.". The commissioner shall not order or make payment or reimbursement from the program if an application relying upon approval from a licensed environmental professional pursuant to subdivision (1) of this subsection does not include such certification of approval.

(c)Conditions for reimbursement or payment. The commissioner shall order reimbursement or payment from the program for any cost paid or incurred, as the case may be, if, (1) such cost is or was incurred after July 5, 1989, (2) a responsible party was or would have been required to demonstrate financial responsibility under 40 CFR Part 280.90 et seq. as said regulation was published in the Federal Register of October 26, 1988, for the underground storage tank or underground storage tank system from which the release emanated, whether or not such party is required to comply with said requirements on the date any such cost is incurred, provided if the state is the responsible party, the commissioner may order payment, within available resources, without regard to whether the state was or would have been required to demonstrate financial responsibility under said sections 40 CFR Part 280.90 et seq., (3) after the release, if any, the responsible party incurred a cost, expense or obligation for investigation, cleanup or for claims of a person other than a responsible party resulting from the release, provided any such claim shall be required to be finally adjudicated or settled with the prior written approval of the commissioner before an application for reimbursement or payment is made, (4) the commissioner determines that the cost, expense or other obligation is reasonable and that there are not grounds for recovery specified in subdivision (1) or (3) of subsection (g) of this section, (5) the responsible party notified the commissioner, as soon as practicable, of the release and of any other claim by a person other than a responsible party, resulting from the release, in accordance with the regulations adopted pursuant to section 22a-449e, (6) the responsible party, or, if a person other than a responsible party applies for payment or reimbursement from the program, then such person demonstrates the remediation, including any monitoring to determine the effectiveness of the remediation, for which payment or reimbursement is sought is not more stringent than that required by the remediation standards established pursuant to section 22a-133k, except to the extent the responsible party or such person demonstrates that it has been directed otherwise, in writing, by the commissioner, (7) the responsible party, or, if a person other than a responsible party applies for payment or reimbursement, then such person demonstrates that it does not have insurance, or a contract or other agreement to provide payment or reimbursement for any cost, expense or other obligation incurred in response to a release or suspected release, or if there is any such insurance, contract or other agreement, that any insurance coverage has been denied or is insufficient to cover the costs, expenses or other obligations, paid or incurred or that any contract or other agreement is not able to or is insufficient to cover the costs, expenses or other obligations, paid or incurred, for which payment or reimbursement is sought, (8) the responsible party demonstrates and the commissioner determines that one of the milestones noted in section 22a-449p has been completed, (9) the commissioner determines what, if any, reductions to the amounts sought should be made based upon the compliance evaluations performed pursuant to subsection (d) of this section, and (10) at the time any application or request for payment or reimbursement, including any supplemental application or request, is submitted (A) for applications submitted on or after October 1, 2007, there is no underground storage tank system subject to the financial responsibility demonstration required in subdivision (2) of this subsection dispensing petroleum on the property where the release or suspected release emanated or occurred, and if the application is submitted by the person who owns or operates or who owned or operated the underground storage tank system at the time of the release, such person demonstrates, in addition to all other applicable requirements, that lack of compliance with provisions of the general statutes and regulations governing underground storage tank systems was not a proximate cause of the release or suspected release and that there are not grounds for recovery specified in subdivision (2) of subsection (g) of this section, or (B) for applications submitted prior to October 1, 2007, there is no underground storage tank system dispensing petroleum on the property where the release or suspected release emanated or occurred, and if the application is submitted by the person who owns or operates or who owned or operated the underground storage tank system at the time of the release, such person demonstrates, in addition to all other applicable requirements, that lack of compliance with provisions of the general statutes and regulations governing underground storage tank systems was not a proximate cause of the release or suspected release and that there are not grounds for recovery specified in subdivision (2) of subsection (g) of this section. Subdivision (10) of this subsection shall not apply to any application concerning a release of an underground storage tank system that was reported to the commissioner in September, 2003 where such system was owned or operated by a municipality or other political subdivision of the state at the time of the release and such system was removed on or before April 1, 2005. In acting on an application or a request for payment or reimbursement, the commissioner, using funds from the program, may contract with experts, including, but not limited to, attorneys and medical professionals, to better evaluate and defend against claims and negotiate claims by persons other than responsible parties. If a person other than a responsible party applies to the commissioner claiming to have suffered bodily injury, property damage or damage to natural resources, the commissioner shall order reimbursement or payment from the program if such person demonstrates that subdivisions (1), (2), (6) and (7) of this subsection are satisfied, the commissioner determines that as a result of a release or suspected release such person has suffered bodily injury, property damage or damage to natural resources, that the costs, expenses or other obligations incurred are reasonable and the person submitting such claim demonstrates that it has attempted to or has provided written notice of its claim to the responsible party as required in subsection (a) of this section and that the responsible party has not applied to the commissioner for payment or reimbursement of this claim. On or before June 30, 2005, if the commissioner denied reimbursement or provided for only partial payment or reimbursement from the program regarding a release, pursuant to subdivision (4) of this subsection, such denial or partial payment or reimbursement shall remain in effect and shall apply to all subsequent applications or requests for payment or reimbursement regarding such release.

(d)Compliance status of underground storage tank systems. Applicability. Evaluation.

(1) Except as provided in this subsection, if at the time any application or request for payment or reimbursement is submitted to the commissioner, including any supplemental application or request, there is an underground storage tank system dispensing petroleum on the property where the release or suspected release emanated or occurred, such application or request shall not be deemed complete and shall not be acted upon by the commissioner unless such application or request includes a summary of the compliance status of all the underground storage tank systems on the subject property. Any such summary shall include an evaluation of compliance with the design, construction, installation, notification, general operating, release detecting, system upgrading, abandonment and removal date requirements of the regulations adopted pursuant to sections 22a-449 and 22a-449o and shall be prepared by an independent consultant on a form prescribed by or acceptable to the commissioner. The summary shall be based on an evaluation of said underground storage tank systems performed not more than one hundred eighty days before the commissioner receives an application or a request for reimbursement or payment, except that with respect to any provision of the subject regulations regarding record keeping, periodic monitoring or testing, the summary shall be based on an evaluation of a one-year period terminating within one hundred eighty days prior to the commissioner's receipt of an application or a request for payment or reimbursement. The summary shall also include a full description of all corrective measures that have been taken or that are being taken with regard to any noncompliance identified in the compliance evaluation performed pursuant to this subdivision.

(2) With respect to any initial application or request for payment or reimbursement regarding a release or suspected release the provisions of subdivision (1) of this subsection shall apply only to applications or requests received on or after January 1, 2006. With respect to any supplemental application or request for payment or reimbursement regarding a release or suspected release, the provisions of subdivision (1) of this subsection shall apply to each application or request submitted to the commissioner on or after January 1, 2006, regardless of when the initial application or request was submitted, except that submission of a compliance summary shall not be required if at the time a supplemental application or request is submitted, less than one year has passed since the performance of a compliance evaluation submitted with any prior application or request.

(3) The cost of hiring an independent consultant to perform a compliance evaluation, as required by this subsection, shall be eligible for payment or reimbursement up to a maximum of one thousand dollars per compliance evaluation, provided the evaluation is in conformance with the requirements of this subsection and includes all underground storage tank systems on the property where a release or suspected release emanated or occurred. If the schedule adopted by the commissioner pursuant to subsection (b) of section 22a-449e includes an amount for performing a compliance evaluation, upon adoption of any such schedule, the amount eligible for payment or reimbursement for performing a compliance evaluation shall be the amount prescribed in any such schedule.

(4) Nothing in this subsection shall affect the continued applicability of any decision of the commissioner to (A) deny reimbursement or payment, or (B) provide only partial payment or reimbursement regarding all applications or requests for payment or reimbursement. Any such decision shall remain in effect and shall not be subject to reconsideration or reevaluation as a result of this subsection.

(5) Except as provided for in this subdivision, if at the time any application or request for payment or reimbursement, including any supplemental application or request, is submitted, there is no underground storage tank system dispensing petroleum on the property where the release or suspected release emanated or occurred, any such application or request shall be subject to the provisions of subdivision (10) of subsection (c) of this section, even where a prior application or request was subject to the provisions of this subsection. The provisions of this subdivision shall not apply to an application or request for payment or reimbursement for annual groundwater remedial actions, including the preparation of a groundwater remedial action progress report, performed pursuant to subdivision (6) of section 22a-449p.

(e)Reduction of payment or reimbursement. Authority of commissioner.

(1) If the compliance evaluation summary performed pursuant to subsection (d) of this section indicates that any of the violations noted in this subdivision exist with respect to any underground storage tank or underground storage tank system on the property at which a release or suspected release occurred and any such violations have not been fully corrected by the time an application or request for reimbursement is submitted to the commissioner, the commissioner shall reduce any payment or amount to be reimbursed as follows:

(A) A one hundred per cent reduction of the payment or amount to be reimbursed for failure to meet the tank or piping construction requirements of section 22a-449o or the regulations adopted pursuant to section 22a-449 or for failure to report the release to the commissioner as required by this section,

(B) a seventy-five per cent reduction of the payment or amount to be reimbursed for failure to have properly functioning cathodic protection, spill prevention, overfill prevention, or release detection as required by the regulations adopted pursuant to section 22a-449. Notwithstanding the provisions of this subsection, the commissioner may reduce any amount to be paid or reimbursed based on any other violation of the provisions of the general statutes or regulations of Connecticut state agencies regarding ownership or operation of an underground storage tank system.

(2) Nothing in this subsection and no determination by the commissioner of any issue of fact or law pursuant to this subsection shall affect the authority of the commissioner under any other statute or regulations, including, but not limited to, taking any enforcement action based upon the violations identified in any compliance evaluation performed pursuant to subsection (d) of this section.

(f)Payment or reimbursement for work, services, material.

(1) For all work or services performed or materials provided before October 1, 2004, the commissioner shall not order payment or reimbursement for any cost paid or incurred, unless when seeking payment or reimbursement, the application is received by the commissioner on or before April 1, 2005.

(2) For purposes of this subsection, work or services shall be deemed rendered or performed on the date such work is rendered or performed and a material shall be deemed provided on the date a material is made available for use.

(3) After June 30, 2005, the commissioner shall not order payment or reimbursement for any cost, expense or other obligation, paid or incurred, unless the application or request for payment or reimbursement is received by the commissioner not later than one year after the completion of all or substantially all of the work or activities necessary to prepare the plan or report required by the milestones set forth in section 22a-449p.

(g)Civil actions. The Attorney General, upon the request of the commissioner, may institute an action in the superior court for the judicial district of Hartford to recover the amounts specified in this section from any person who owns or operates an underground storage tank system at the time a release emanates or occurs from such system or any person who owns the real property on which a release emanates or occurs, provided such person owned the real property at or any time after the release emanates or occurs until the time that a final remediation action report is submitted by a licensed environmental professional or approved by the commissioner pursuant to subdivision (7) of section 22a-449p, if:

(1) Prior to the occurrence of the release, the underground storage tank or underground storage tank system from which the release emanated was required by regulations adopted under section 22a-449 to be the subject of an Underground Storage Facility Notification Form, or EPHM-6 but the person who owns or operates or who owned or operated such tank or tank system knowingly and intentionally failed to submit such notification form to the commissioner;

(2) the release results from a reckless, wilful, wanton or intentional act or omission of such person or a negligent act or omission of such person that constitutes noncompliance with the general statutes or regulations governing the installation, operation and maintenance of underground storage tanks; or

(3) the release occurs from an underground storage tank or system which is not in compliance with a final order issued by the commissioner pursuant to this chapter or a final judgment issued by a court concerning noncompliance with a requirement of this chapter; or

(4) payment has been made, including payment to the commissioner pursuant to subsection (i) of this section, to a person other than a person against whom an action may be brought pursuant to this subsection. All costs to the state relating to actions to recover such payments, including, but not limited to, reasonable attorneys' fees, shall initially be paid within available resources. In any recovery the commissioner is entitled to recover from such person (A) all payments made under the program with respect to a release or suspected release, (B) all payments made by the commissioner pursuant to subsection (i) of this section with respect to a release or suspected release, (C) interest on such payments at a rate of ten per cent per year from the date such payments were made, and (D) all costs of the state relating to actions to recover such payments, including, but not limited to, reasonable attorneys' fees. All actions brought pursuant to this section shall have precedence in the order of trial, as provided in section 52-191. If the Attorney General has filed an action against a person seeking recovery of the amounts specified in this subsection or if the commissioner sends a person a demand letter regarding costs incurred by the state pursuant to section 22a-451, any such person against whom an action has been brought or who receives a demand letter shall not submit an application or request for payment or reimbursement to the commissioner seeking payment or reimbursement of any such amount sought by the Attorney General or by the commissioner. If any such application or request for payment or reimbursement is submitted, the commissioner shall not take any action regarding any such application or request.

(h)Rendering of decision by commissioner. Hearings. The commissioner shall render a decision as to whether or not to order payment or reimbursement from the program not more than ninety days after receipt of an application from a person, provided, in the case of a second or subsequent application, the commissioner shall render a decision not more than forty-five days after receipt of such application. A copy of the decision shall be sent to the person seeking payment or reimbursement by certified mail, return receipt requested. Any person aggrieved by the decision of the commissioner may, not later than twenty days after the date of issuance of such decision, request a hearing before the commissioner in accordance with the provisions of chapter 54. After such hearing, the commissioner shall consider the information submitted and affirm or modify the decision on the application. A copy of the affirmed or modified decision shall be sent to all parties to the hearing by certified mail, return receipt requested. For applications submitted before, on or after June 15, 2012, once the commissioner renders a decision regarding an application or request for payment or reimbursement and no hearing has been requested pursuant to this subsection regarding any such decision, the costs, expenses or other obligations addressed by any such decision shall not be resubmitted in any other application or request.

(i)Use of available resources for clean-up. Whenever the commissioner determines that as a result of a release or a suspected release, a clean-up is necessary, including, but not limited to, actions to prevent or abate pollution or a potential source of pollution and to provide potable drinking water, the commissioner may undertake such actions using not more than one million dollars, within available resources, for each release or suspected release from an underground storage tank or an underground storage tank system for which the responsible party is the state or for which a responsible party was or would have been required to demonstrate financial responsibility under 40 CFR Part 280.90 et seq., as said regulation was published in the Federal Register of October 26, 1988.

(j)Percentage payments.

(1) If through an initial application or request for payment or reimbursement received by the commissioner before June 1, 2005, the commissioner has determined that a person has paid or incurred costs, expenses or other obligations that are eligible for payment or reimbursement, with respect to any supplemental application or request for payment or reimbursement the following shall apply. The commissioner may identify a category of activities, costs, expenses, or other obligations that are less than one hundred thousand dollars for which, in lieu of full payment, the commissioner may approve a percentage of the costs, expenses or other obligations paid or incurred. When implementing this subsection, the commissioner shall consider the amounts previously paid from the program and any other information the commissioner deems relevant. Any such percentage shall be not more than, but may be less than, ninety per cent of the average amount, as determined by the commissioner, previously paid from the program for any activity, cost, expense or obligation. The commissioner may, using the procedures specified in this subdivision, modify any percentage previously approved pursuant to this subdivision.

(2) A person with a supplemental application or request for payment or reimbursement may agree to accept the percentage payment approved by the commissioner. Any such acceptance shall be in writing, signed by the person seeking payment or reimbursement and shall acknowledge that the person is agreeing to accept less than the full amount sought by such person for the costs, expenses or other obligations covered by such acceptance. If the commissioner has prescribed forms, any such acceptance shall be made using the forms prescribed by the commissioner. Once a completed written acceptance is received, the commissioner shall, not later than ninety days after receiving such acceptance, determine whether to order payment or reimbursement from the program.

(3) Any amount paid or reimbursed under this section shall be considered full payment for any such activity, expense or other obligation and a person shall not seek any additional reimbursement for any such activity, expense or other obligation. The categories or activities for which the commissioner recommends payment of a percentage pursuant to this section may constitute all or a portion of the amounts sought in a supplemental application or supplemental request for payment or reimbursement.

(k)Notification to commissioner. Notification to the commissioner pursuant to regulations adopted pursuant to section 22a-449 shall constitute compliance with any regulation adopted pursuant to section 22a-449e regarding notification to the commissioner of a release.

Conn. Gen. Stat. § 22a-449f

(P.A. 88-230, S. 1, 12; P.A. 89-373, S. 7, 10; P.A. 90-98, S. 1, 2; 90-181, S. 3; P.A. 91-254, S. 4, 7; P.A. 93-142, S. 4, 7, 8; P.A. 94-28, S. 2, 3; P.A. 95-220, S. 4 -6; P.A. 96-180, S. 81, 166; P.A. 04-244, S. 3; June Sp. Sess. P.A. 05-3, S. 94; P.A. 06-196, S. 260; P.A. 07-192, S. 5 -7; P.A. 08-124, S. 29, 30; June Sp. Sess. P.A. 09-3, S. 426; P.A. 11-80, S. 1; June 12, Sp. Sess. P.A. 12-1, S. 255.)

Amended by P.A. 12-0001, S. 255 of the Connecticut Acts of the 2012 Special Session, eff. 6/15/2012.

Amended by P.A. 09-0003, S. 426 of the June 2009 Sp. Sess., eff. 10/1/2009.