TITLE 328 UNDERGROUND STORAGE TANK FINANCIAL ASSURANCE BOARD
Final Rule
LSA Document #15-231(F)
DIGEST
Adds 328 IAC 1-6-3; and amends 328 IAC 1-1-1, 328 IAC 1-1-2, 328 IAC 1-1-3, 328 IAC 1-1-3.1, 328 IAC 1-1-4, 328 IAC 1-1-5.1, 328 IAC 1-1-8.3, 328 IAC 1-1-8.5, 328 IAC 1-1-12, 328 IAC 1-2-1, 328 IAC 1-2-2, 328 IAC 1-3-1, 328 IAC 1-3-1.3, 328 IAC 1-3-1.6, 328 IAC 1-3-3, 328 IAC 1-3-5, 328 IAC 1-4-1, 328 IAC 1-4-3, 328 IAC 1-4-4, 328 IAC 1-4-5, 328 IAC 1-5-1, 328 IAC 1-5-2, 328 IAC 1-6-1, 328 IAC 1-6-2, and 328 IAC 1-7-2 concerning the Excess Liability Trust Fund. Repeals 328 IAC 1-1-2.2, 328 IAC 1-1-6, 328 IAC 1-1-6.5, 328 IAC 1-1-9, 328 IAC 1-1-10, 328 IAC 1-3-2, 328 IAC 1-3-4, 328 IAC 1-5-3, and 328 IAC 1-7-1. Effective 30 days after filing with the Publisher.
Date of First Hearing: August 10, 2017.
Date of Second Hearing: March 8, 2018.
ARTICLE 1. EXCESS LIABILITY TRUST FUND CORRECTIVE ACTION AND ELTF LIABILITY INDEMNITY CLAIM PAYMENTS
328 IAC 1-1-1 Application of definitions
Authority: IC 13-23-11-7
Sec. 1. The definitions in IC 13-11-2 apply to this article. In addition to the definitions in IC 13-11-2, the definitions in this rule apply throughout this article.
Authority: IC 13-23-11-7
Sec. 2. "Administrator" refers to the commissioner of the department of environmental management.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-1-2; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1051; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 787; filed Aug 30, 2004, 9:40 a.m.: 28 IR 123; readopted filed May 14, 2007, 1:52 p.m.: 20070523-IR-328070137BFA; readopted filed Jul 29, 2013, 9:18 a.m.: 20130828-IR-328130177BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-1-3 "Corrective action" defined
Authority: IC 13-23-11-7
Sec. 3. "Corrective action" means any or all work performed or to be performed, including all work performed or to be performed under a CAP as defined under section 3.1 of this rule and rules of the solid waste management board at 329 IAC 9-1-14.7, to:
(1) minimize;
(2) contain;
(3) eliminate;
(4) remediate;
(5) mitigate; or
(6) clean up;
a release caused by an occurrence, including emergency measures taken as part of an initial response to the release under rules of the solid waste management board at 329 IAC 9-5-2. has the meaning set forth at 329 IAC 9-1-14.5.
328 IAC 1-1-3.1 "Corrective action plan" or "CAP" defined
Authority: IC 13-23-11-7
Sec. 3.1. "Corrective action plan" or "CAP" means the corrective action plan described by rules of the solid waste management board at 329 IAC 9-5-7(a) and 329 IAC 9-5-7(b). has the meaning set forth at 329 IAC 9-1-14.7.
328 IAC 1-1-4 "Deductible amount" defined
Authority: IC 13-23-11-7
Sec. 4. "Deductible amount" means the amount specified in IC 13-23-8-3 IC 13-23-9-1.3 applicable to each incident number assigned by the department. A person applying to the fund under 328 IAC 1-3-1 must provide evidence of payment of reimbursable costs incurred equal to the deductible amount prior to receiving any reimbursement from the ELTF.
Authority: IC 13-23-11-7
Sec. 5.1. "Emergency measures" means any work described under IC 13-23-8-4(b)(1). IC 13-23-9-1.5(a)(2)(C). The term only includes the necessary work performed to directly abate the following conditions related to a release:
(1) Petroleum or petroleum constituents are detected in indoor air in an inhabitable a building greater than short term risk-based concentrations at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the contaminants of concern. (2) Petroleum or petroleum constituents, greater than ten percent (10%) of the measured lower explosive limits, are detected anywhere in utility conduits, such as sewers.
(3) Petroleum or petroleum constituents are detected as free product or sheen in utility conduits or surface water.
(4) Petroleum or petroleum constituents are detected as free product off-site, not including easements or rights-of-way.
(5) Petroleum or petroleum constituents are detected at or above the maximum contamination levels (MCLs) or RISC residential appropriate screening levels for ground water cleanup objectives as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2(a):
(A) in a drinking water well, as measured at the point of compliance or at the tap; or
(B) within one (1) year time of travel from a public drinking water well, and the petroleum or petroleum constituents are in imminent danger of impacting drinking water.
(6) Any other condition requiring direct abatement, as specified by the commissioner, based on the potential threat to human health or the environment.
Authority: IC 13-23-11-7
Sec. 8.3. "Reasonable" means that the site characterization and corrective action are:
(1) appropriate and performed only as necessary to meet the cleanup objectives for the site; The term also means that corrective action and site characterization are and
(2) consistent with the requirements of:
(A) 329 IAC 9; other applicable state and federal laws and regulations; and
(C) other applicable state and federal laws and regulations.
328 IAC 1-1-8.5 "Site characterization" defined
Authority: IC 13-23-11-7
Sec. 8.5. "Site characterization" means the work performed under the initial site characterization (ISC) described in rules of the solid waste management board at 329 IAC 9-5-5.1 or work performed under further site investigations described in 329 IAC 9-5-6 and may include, as necessary, quarterly monitoring and pilot studies to determine the feasibility of remediation alternatives.
328 IAC 1-1-12 "UST system" or "tank system" defined
Authority: IC 13-23-11-7
Sec. 12. "UST system" or "tank system" means the following:
(1) Underground storage tank.
(2) Connected underground piping.
(3) Underground ancillary equipment, as defined in the rules of the solid waste management board at 329 IAC 9-1-5.
(4) Containment system, if any.
Authority: IC 13-23-11-7
Sec. 1. This article implements provisions of IC 13-23 for the administration of the fund. This article establishes procedures by which Persons listed in 328 IAC 1-3-1 may apply to the fund for payment of reimbursable costs and third party liability ELTF indemnity claims, Payment of reimbursable costs and third party liability claims shall be made in accordance with the following:
(1) 328 IAC 1-3-4(b) applies to any one (1) site upon which the corrective action has not been completed as of November 16, 2001. Eligibility requirements, deductible amounts, maximum reimbursement per eligible release, and maximum reimbursement per eligible party are determined by the requirements and limits in effect on:
(A) the date the release occurs; or
(B) if the date that the release occurs cannot be determined, the date the release was discovered.
(2) The applicable cost range or amount of the reimbursable cost, as set forth in 328 IAC 1-3-5, shall be is determined under the section in effect on the date of the invoice for the work and the costs so incurred. unless If the work is performed by the owner, operator, or applicant, in which case, it is the applicable cost range or amount of the reimbursable cost is determined by the date the work was completed.
Authority: IC 13-23-11-7
Sec. 2. The administrator of the fund shall prepare an annual report to the financial assurance board by September 1 of each year. The report shall must include the following:
(1) A financial statement detailing information for the management and oversight of the fund, including:
(A) facts concerning the amount of money currently in the fund;
(B) the amount of money obligated for corrective actions and third party liability ELTF indemnity claims; and
(C) estimates of future revenue for and demands on the fund.
(2) An overview of the fund claims process.
(3) A report of the number of claims made against the fund that were approved and denied during the reporting year.
Authority: IC 13-23
Sec. 1. (a) The following persons may apply to the fund for payment of reimbursable costs or for third party liability claims:
(1) Tank owners and operators, including a person as described in section 3(d) of this rule.
(2) Persons assigned the right of reimbursement by any person described in subdivision (1).
(3) Subsequent owners of the property upon which tanks were located, if the tanks were closed by a previous property owner, tank owner, or operator who is eligible, as specified in IC 13-23-8-4(e).
Fund access is limited to eligible parties and those assigned the right of fund access by an eligible party.
(b) Any or all persons listed under subsection (a) may apply to the fund for payment of reimbursable costs or third party liability ELTF indemnity claims if: all of the following have occurred:
(1) A fund qualifying occurrence. To be eligible to be paid from the fund, the occurrence must be a fund qualifying occurrence.
(2) Submission of an initial site characterization (ISC) as described in rules of the solid waste management board at 329 IAC 9-5-5.1.
(1) the release is an eligible release;
(3) (2) the applicant provides documentation of reimbursable costs incurred equal to:
(A) the appropriate deductible amount as determined by the fund administrator; has been provided. in accordance with IC 13-23-9-1.3(a); and
(B) any additional amount calculated in accordance with IC 13-23-9-1.3(b); and
(4) (3) a claim for the same costs:
(A) has not been submitted to or paid by the fund; a claim for the same costs and
(B) will not be paid more than once by the fund.
(c) All claims for payment of reimbursable costs must be submitted within nine (9) months after the fund qualifying occurrence is granted a status of no further action (NFA) by the administrator. All resubmittals associated with any disallowed cost must be received by the department within twelve (12) months after the denial of the claim.
(d) All occurrences with an existing status of NFA as of the effective date of the 2011 amendments to this article will have:
(1) nine (9) months from the effective date of the 2011 amendments to this article to submit any remaining costs; and
(2) an additional twelve (12) months to resubmit any denied costs.
(c) The administrator may not reimburse costs related to duplicative acts performed by multiple eligible parties. If more than one (1) eligible party submits a claim for reimbursement of costs, the administrator shall determine the appropriate reimbursement based on the:
(1) applicable remediation objectives; and
(2) reasonableness and cost effectiveness of the claims.
(e) (d) The department may:
(1) determine the identity of the tank owner or tank operator based on the notification submitted under 329 IAC 9-2-2; the department may and
(2) require an affirmation that an applicant is a person, as described in section 3(d) of this rule, or a subsequent owner of the property, as specified in subsection (a)(3). an eligible party or assignee thereof.
(f) A person who owns property with a tank is considered a tank owner.
(g) The fund will not reimburse for the remediation costs arising from the acts or omissions on the part of a contractor, owner, or operator that result in damage to a UST system, a dispensing components or exacerbation of an existing release.
(h) (e) Only an owner, operator, or authorized agent may request the status of their tank fee payments and resulting potential percentage of fund eligibility, if applicable.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-3-1; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1053; filed Jan 9, 1997, 4:00 p.m.: 20 IR 1103; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 790; filed Aug 30, 2004, 9:40 a.m.: 28 IR 126; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR- 328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-3-1.3 Cost effectiveness of corrective action
Authority: IC 13-23-11-7
Sec. 1.3. (a) The administrator shall determine if the work to be performed or the work already performed, or a portion thereof, under the approved CAP is cost effective after the person described in section 1 of this rule has done the following:
(1) Completed the initial site characterization under 329 IAC 9-5-5.1 and the further site investigation under 329 IAC 9-5-6 for the release at the site. and
(2) Submitted the information in clauses (A) through (C) to the administrator in a form or format approved by the administrator as follows:
(A) For each of the remediation alternatives as required by 329 IAC 9-5-6(d), 329 IAC 9-5-6, details of the work to be performed and the projected costs. (B) The approved CAP and approval letter from the department.
(C) If appropriate, a demonstration that the selected remediation alternative will substantially reduce or eliminate third party liability; ELTF indemnity claims.
the administrator will determine if the work to be performed or the work already performed, or a portion thereof, under the approved CAP is cost effective. The administrator may review information concerning cost effectiveness while reviewing a CAP submitted for approval; however, the administrator will shall not make a determination on cost effectiveness before a CAP is approved.
(b) The administrator's determination for administrator shall determine cost effectiveness will be based on the information in subsection (a) and the following criteria:
(1) The projected costs of the selected remediation alternative compared to the other remediation alternatives.
(2) The likelihood that the remediation approach will achieve the cleanup objectives as set forth in the approved CAP.
(3) The appropriateness of the length of time projected to achieve the cleanup objectives, based on the selected remediation alternative considering actual impacts to human health and the environment.
(4) The cost projections under subsection (a)(2)(A) for the remediation alternatives and the work to be performed do not exceed the reimbursable costs allowed under section 5(a), 5(b), and 5(e) of this rule.
(5) The cleanup remediation objectives as set forth in the approved CAP are sufficient, but no more stringent than necessary, for the current land use for the site.
(6) A demonstration that the selected remediation alternative will substantially reduce or eliminate third party liability. ELTF indemnity claims.
(c) Upon the administrator's request, The applicant shall provide additional information to substantiate the projected work and projected costs upon request by the administrator.
(d) At any time, if the administrator finds that the approved CAP will not achieve or is not achieving the cleanup objectives, under 329 IAC 9, then the administrator may determine that the work to be performed under the approved CAP is no longer cost effective. The administrator will shall give notice to the applicant of this determination.
Authority: IC 13-23-11-7
Sec. 1.6. (a) Persons described in section 1 of this rule may submit to the administrator a request for a preapproval of projected work to be performed for site characterization in accordance with 328 IAC 1-1-8.5 and under the approved CAP. The request and any additional information requested by the administrator must be in a form or format approved by the administrator. The administrator's preapproval will be based administrator shall base preapproval of a request on a determination of the following:
(1) Cost effectiveness under section 1.3 of this rule.
(2) That the costs are reasonable.
(b) The administrator may ask for additional information to substantiate the projected work and projected costs.
(c) The administrator will send shall issue a preapproval letter to the owner or operator stating how much of the work is preapproved as reasonable and cost effective. This preapproval is not a determination on eligibility under section 3 of this rule.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-3-1.6; filed Aug 30, 2004, 9:40 a.m.: 28 IR 127; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; readopted filed Jun 6, 2016, 11:51 a.m.: 20160706-IR-328160142BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-3-3 Requirements for reimbursements
Authority: IC 13-23-11-7
Sec. 3. (a) A person listed in section 1 of this rule shall comply with the following requirements for a claim for reimbursable costs or a third party liability an ELTF indemnity claim to be considered for reimbursement from the fund by the administrator:
(1) Demonstrate that the requirements in IC 13-23-8-4(a)(1) through IC 13-23-8-4(a)(4) have been met. release is an eligible release.
(2) Demonstrate that the initial site characterization (ISC), for the property associated with the release, required by rules of the solid waste management board at 329 IAC 9-5-5.1 has been completed and submitted to the department within sixty (60) days of reporting a release to the department. If this requirement is not met, the ELTF eligibility percentage will be reduced by five percent (5%) on the ninety-first day. An additional five percent (5%) will then be deducted for every six (6) months that passes prior to the ISC being submitted to the department. For eligible releases that occur on or after July 1, 2016, or, if the date of occurrence cannot be determined, that are discovered on or after July 1, 2016, an eligible party shall submit all:
(A) claims for payment of reimbursable costs related to the ISC conducted under 329 IAC 9-5-5.1 within three hundred sixty-five (365) days after submittal of all reports required under 329 IAC 9;
(B) remaining claims for payment of reimbursable costs within three hundred sixty-five (365) days after the date those costs were incurred; and
(C) resubmittals associated with any disallowed cost within three hundred sixty-five (365) days after the denial of the claim.
(3) The CAP as required by IC 13-23-8-4(a)(4) and 329 IAC 9-5-7 must be submitted with projected costs that describe in detail the costs for work to be completed under the CAP. The projected costs must be in a form or format approved by the administrator. (4) Demonstrate that the tank owner or operator was in substantial compliance with the spill reporting rule or law applicable at the time the release was suspected. For eligible releases that occurred before July 1, 2016, or, if the date of occurrence cannot be determined, that were discovered before July 1, 2016, an eligible party shall submit all:
(A) claims for payment of reimbursable costs within three hundred sixty-five (365) days after the eligible release is granted a status of no further action by the administrator; and
(B) resubmittals associated with any disallowed cost within three hundred sixty-five (365) days after the denial of the claim.
(5) When site access is granted by the owner or operator to a third party for the purposes of an environmental investigation, one (1) of the following must be demonstrated:
(A) That within forty-five (45) days from the date the third party accessed the site, the owner or operator requested, in a letter sent by certified mail, the results of the investigation that identified a potential release on that site and reported any spill or release, as required by the rules of the solid waste management board at 329 IAC 9-4-4.
(B) The access agreement with the third party specified that the results of the investigation are provided to the owner or operator within forty-five (45) days of sample collection.
If clause (A) or (B) is not met, the ELTF eligibility percentage will be reduced by five percent (5%). An additional five percent (5%) will then be deducted for every six (6) months that passes prior to clause (A) having been met.
(6) Pay all:
(B) interest and penalties that are due under subsections (e) and (f).
Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.
(7) For a person who acquires ownership in accordance with subsection (d), make timely payment of all past due tank fees, interest, and penalties in accordance with subsection (f) to make a claim for reimbursable costs for any site characterization or corrective action related to a release that is first suspected, discovered, or confirmed after the payment of all past and currently due fees, interest, and penalties. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are:
(A) operable; or
(B) in temporary closure.
(8) Register the tank or tanks within thirty (30) days of the time the tank or tanks were first put into use, even if a release is discovered or confirmed before the tank or tanks were registered. Tanks are considered in use when the tank:
(A) contains or has ever contained a regulated substance; and
(b) Persons listed in section 1 of this rule shall be reimbursed from the fund according to the following formula:
(1) Determine the number of payments that were owed under IC 13-23-12-1 on all regulated tanks at the facility from which a release occurred:
(A) beginning with the date that the fees for each tank first became due under IC 13-23-12; and
(B) continuing until the date on which the release occurred.
Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.
(2) Determine the number of payments actually made under IC 13-23-12-1 on all regulated tanks at the facility from which a release occurred:
(A) beginning with the date each tank became regulated under IC 13-23; and
(B) continuing until the date on which the release occurred.
Divide the number of payments actually made by the number of payments due as determined in subdivision (1).
(3) Determine any additional percentage reduction related to either the ISC submittal in subsection (a)(2) or the third party access agreement in subsection (a)(5).
(4) Determine the amount of money the person would have received from the fund if all payments due on the date the release occurred had been paid when due and multiply the amount by the percentage determined in subdivisions (2) and (3).
(c) Payments that were made or could have been paid four (4) times per year under IC 13-23-12-3 count as one (1) payment for purposes of this section.
(d) A person who acquires ownership or operation of an underground petroleum storage tank under IC 13-23-8-4.5(2) may not become eligible for reimbursement from the fund for any releases reported after the date that the commissioner receives the "Intent to Acquire UST and Reinstate Eligibility" form (Form) unless the person does the following:
(1) Submits a Form as prescribed by the commissioner at least sixty (60) days prior to acquiring ownership or operation of an underground petroleum storage tank. This form will be kept confidential up to the earlier of the following:
(A) The date of the transfer of the property.
(B) The administrator's receipt of the monies as owed under subsection (e).
(C) Ninety (90) days after the administrator receives the Form.
The administrator will provide a listing of environmental penalties, interest due to the fund, and fees due to the prospective purchaser and the property owner within forty-five (45) days of receipt of the Form.
(2) Pays all applicable tank fees, including past due fees, interest, and penalties, for each tank not more than thirty (30) days after the transaction whereby the person acquires ownership or operation of each tank. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are:
(A) operable; or
(B) in temporary closure.
(3) The seller of the underground petroleum storage tank site is liable for any and all unpaid tank fees, interest, and penalties that are assessed by the administrator in accordance with subsection (e). The purchaser is to:
(A) collect all past due tank fees, interest, and penalties from the noncompliant seller; and
(B) remit to the administrator the full amount of the assessment for the subject underground petroleum storage tank provided by the administrator in accordance with subsection (e) prior to a release.
The timely remittance of these monies is a condition of fund eligibility for the purchaser. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are operable or in temporary closure.
(e) Persons listed in section 1 of this rule who fail to pay tank fees when due are subject to payment of interest and penalties on those fees in order to become eligible for the fund. Interest and penalties due include the following:
(1) Penalties and interest due the department of state revenue.
(2) All past due underground storage tank fees under IC 13-23-12. Tank fees under IC 13-23-12-1(a) must be paid on any tanks that are not closed in accordance with 329 IAC 9-6-1 and are:
(A) operable; or
(B) in temporary closure.
(3) An environmental penalty as specified in subsection (f)(2). This penalty will be distributed into the fund and into the petroleum trust fund in accordance with IC 13-23-12-7(b).
(4) Interest will be charged for the missed fee or fees at the percent per year based on subsection (f) and IC 6-8.1-10-1 until all fees due have been paid in full for each tank. This interest will be deposited into the fund.
Payment of all fees, interest, and penalties due within thirty (30) days of the date of transfer of the subject property is a requirement for fund eligibility for the purchaser.
(f) In addition to all past due fees owed, the amount of interest and penalties owed by a particular owner or operator is to be determined by the following formula:
(1) Interest, under IC 6-8.1-1-1 and IC 6-8.1-10-1, as follows:
Number of delinquent days × daily interest rate = interest due
(2) Penalty as follows:
(A) For sites containing only tanks that were never registered, or sites containing only tanks for which no tank fees were paid when due, the penalty will be calculated at two thousand dollars ($2,000) under IC 13-23-12-7(a) per petroleum underground storage tank per year that passes after each year's fee is due. The penalty will be calculated by multiplying the total number of years that have passed since the fee was due by the total number of tanks and multiplying the result by two thousand dollars ($2,000).
(B) For sites with tanks that are registered but not all fees have been completely paid, the penalty will be calculated at one thousand dollars ($1,000) per petroleum underground storage tank for each missed fee payment. If a quarterly fee payment is missed, the penalty is applied at one-fourth (1/4) the amount. The penalty will be calculated by multiplying the total number of years that have passed since the fee was due by the total number of tanks and multiplying the result by one thousand dollars ($1,000).
(C) The penalty is incurred:
(i) nine (9) months after the fee is due; or
(ii) three (3) months after the final quarterly installment is due.
(D) Penalties will not be collected for fees due before December 1, 2001.
(b) A reduction in reimbursement due to unpaid fees under IC 13-23-9-1.3 does not exempt a UST owner from the requirement to pay any unpaid past due fee. The reduction does not render any fee as paid for the purposes of IC 13-23-12.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-3-3; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1053; filed Jan 9, 1997, 4:00 p.m.: 20 IR 1104; errata, 20 IR 1593; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 790; errata filed Feb 27, 2002, 9:58 a.m.: 25 IR 2254; filed Aug 30, 2004, 9:40 a.m.: 28 IR 127; errata filed Oct 7, 2004, 11:45 a.m.: 28 IR 608; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
Authority: IC 13-23
Sec. 5. (a) Reimbursable costs, excluding third party liability claims, are actual monetary amounts paid or incurred for work performed as follows:
(1) Consistent with an approved or deemed approved CAP, an approved site characterization (SC), a no further action letter (NFA) from the commissioner, or under one (1) or more of the provisions of IC 13-23-8-4(b).
(2) Subject to each of the following conditions:
(A) Credits, rebates, refunds, or other similar payments made to the owner or operator or received by the owner, operator, or applicant must be subtracted from the costs submitted for reimbursement.
(B) The work performed was consistent with:
(i) site characterization;
(ii) an approved CAP; or
(C) The work performed under the CAP has been determined to be cost effective under section 1.3 of this rule.
(D) The work performed has been determined to be reasonable under 328 IAC 1-1-8.3.
(E) The work:
(i) was performed as described in subsection (b) or (e), or both; and
(ii) is not described in subsection (d).
(b) Persons listed in section 1 of this rule may employ a certified contractor under IC 13-23-3-2 or may use the owner's or operator's personnel to perform all or part of a corrective action and Eligible parties may seek payment from the fund for the following: reimbursable costs of the type described as follows:
(1) Site characterization costs, which include:
(A) research;
(B) field time;
(C) report writing; and
(D) clerical support.
but only after the site characterization has been approved by the administrator.
(2) Lodging and per diem costs in accordance with the most current Indiana department of administration financial management circular covering state travel policies and procedures. Mileage shall must be calculated at the federal rate for a privately owned automobile under 41 CFR 301-10.303*, in effect on January 1 of each year. Sales of the Code of Federal Regulations are handled by the Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954.
(3) Soil, and water, and vapor sampling for petroleum and petroleum constituents only as necessary to achieve closure under rules of the solid waste management board at 329 IAC 9. the applicable remediation objectives determined under IC 13-12-3-2.
(4) Costs for machinery and equipment if prorated based on the:
(A) normal expected life of the item; and
(B) length of time the item was used for a single corrective action.
In no event will the fund pay for purchases of machinery and equipment in excess of the market cost of leasing the item for a corrective action. Examples of equipment charges that can be made to the fund are disposable bailers and sample bottles.
(5) Costs for materials and supplies, such as the following:
(A) Disposable protective equipment.
(B) Building materials, such as the following:
(i) Piping.
(ii) Cement.
(C) Preservatives.
(6) Governmental administrative fees for local, state, or federal permits necessary for one (1) or both of the following:
(A) Corrective action.
(B) Site characterization activities.
(7) Provision of alternate water supply. This cost must have been previously approved by the administrator.
(8) Any other reimbursable costs the administrator finds to be necessary.
(9) Costs associated with transitioning management of a site to RISC from previous remediation standards to current remediation standards as determined by the department, if these costs would be less than the costs to complete the remediation under rules of the solid waste management board at 329 IAC 9. the previous remediation standards.
(10) Only one (1) markup may be taken on any item. A markup of not more than ten percent (10%) of the unit rate or the lowest bid will may be reimbursed except for the following:
(A) Travel costs, including mileage, per diem, and lodging.
(B) Personnel costs, not including labor rates for subcontractors.
(C) Utilities for temporary facilities.
(D) Governmental administrative fees for local, state, or federal permits.
(E) Equipment and supplies:
(i) not purchased or rented specifically for use at a facility; or
(ii) that are not part of the approved remedial technology.
(11) The fair market value of the cost to obtain access to off-site property if necessary for site characterization or corrective action as reviewed and approved by the office of the attorney general.
(12) Costs for emergency measures including the following as determined to be appropriate by the administrator, including the following:
(A) Evacuation and relocation of a building resident or residents.
(B) Ventilation of a building or utility conduit.
(C) Installation and maintenance of an alternate water or treatment system for contaminated drinking water.
(D) Recovery of free product as necessary to eliminate a release to a utility conduit.
(E) Installation of a system to mitigate free product migration, actual or potential drinking water impacts, or vapor intrusion into a building or a utility conduit.
(F) Other emergency measures required by the department.
(13) Compensation paid to technicians for services performed in preparation and submittal of the ELTF claim.
(c) The approval of the site characterization and the CAP under rules of the solid waste management board at 329 IAC 9 is not a determination that the actual costs incurred under the site characterization or the CAP are reimbursable costs under this rule. (d) The following costs are not reimbursable from the fund:
(1) Costs from releases that occurred before April 1, 1988.
(2) Costs incurred more than twenty-four (24) hours prior to the date and time the release had been reported under the spill reporting rule in effect at the time of the release.
(3) Costs of:
(A) the maintenance of;
(B) the repair of;
(C) upgrading;
(D) removing, unless tank removal is approved as part of the CAP; or
(E) the replacement of;
an underground petroleum storage tank or its associated equipment.
(4) Costs of environmental investigation and remediation not directly related to a fund qualifying occurrence. an eligible release. Ineligible costs include the cost of testing for nonpetroleum contamination and the cost of vapor or ground water monitoring devices that are not associated with corrective action.
(5) Costs that exceed reimbursable costs even if incurred pursuant to an approved CAP.
(6) The cost of equipment purchases other than those costs routinely required to implement a CAP. Examples of nonreimbursable purchases include the following:
(A) Drilling rigs.
(B) Earth moving equipment.
(C) Photoionization detectors.
(D) Explosimeters.
(E) Hand tools.
(7) The cost of cosmetic improvements, including the repair or replacement of blacktop or concrete, unless directly associated with corrective action or emergency response activities.
(8) Lost income or reduced property values unless part of a third party liability an ELTF indemnity claim.
(9) Interest or finance charges.
(10) Contractor costs or subcontractor costs not directly related to corrective action activities, such as the following:
(A) Preparing cost estimates.
(B) Reviewing environmental work or documents.
(C) Budgeting.
(D) Changing contractors.
However, eligible parties may seek reimbursement for these costs if the costs meet the requirements in subsection (b)(13).
(11) Fines or penalties imposed by local, state, or federal government agencies.
(12) Punitive or exemplary damages.
(13) Any costs for remediation of contamination not shown to be at concentrations exceeding the risk integrated system of closure (RISC) as described in IC 13-23-8-4(a)(4)(A)(ii) industrial cleanup standards with the following exceptions:
(A) accomplish the applicable remediation objectives determined under IC 13-12-3-2, except for ground water contamination affecting a public or private drinking water well. on-site or off-site.
(B) Off-site contamination at concentrations exceeding RISC residential cleanup standards, not including:
(i) roadways;
(ii) railroads; or
(iii) other property not currently used as residential property.
(14) Any costs related to the excavation and disposal of more than one thousand five hundred (1,500) tons of soil unless:
(A) alternative remediation techniques have been considered;
(B) excavation and disposal was shown to be the most cost-effective remediation option; and
(C) the soil removal is part of a CAP approved or deemed approved by the administrator.
(15) Any other cost not directly related to site characterization, corrective action, or third party liability ELTF indemnity claims or otherwise determined not to be reimbursable under this rule as a result of a financial or technical review.
(16) If:
(A) a release has occurred before the tank or tanks were registered; and
(B) the tank or tanks were not registered within thirty (30) days from the time the tank or tanks were first put into use;
a claim is not reimbursable from the fund by the administrator. Tanks are considered in use when the tank contains or has ever contained a regulated substance and has not been closed under 329 IAC 9-6.
(16) Remediation costs arising from the acts or omissions on the part of a contractor, owner, or operator that result in:
(A) damage to:
(i) a UST system; or
(ii) dispensing components; or
(B) exacerbation of an existing release.
(17) Any costs to purchase equipment, which was previously purchased and the cost was previously reimbursed from the fund.
(18) Any costs incurred after receipt of notice by the administrator under section 1.3(d) of this rule that the approved CAP is not successfully remediating the site, except the following costs necessary costs, until such time as the modified CAP is approved: to:
(A) Develop Development of the modified CAP, including pilot studies or additional investigation.
(B) Demobilize Demobilization of the corrective action system currently at the site.
(C) Abandon Abandonment of monitoring, extraction, or other wells associated with the CAP.
(D) Maintain Maintained compliance with applicable regulations and permits, including quarterly ground water monitoring.
(E) Maintain, Maintenance, but not operate, operation, of the corrective action system.
(19) Credits, rebates, refunds, or other similar payments made to the owner or operator or received by the owner, operator, or applicant.
(e) Costs that may be paid from the fund are set forth in the following: as follows:
| | | |
| | | | |
| | Activity | | Cost Range or Maximum Amount |
| SITE CHARACTERIZATION | | |
| Direct push technology (other costs pertaining to direct push technology are included in the per foot allowance specified). | | $600 per day |
| In addition to the day rate, costs for boring advancement may be invoiced at the following per foot rates: | | $6 per foot |
| Mobilization and demobilization. This includes the cost of moving general contractor owned equipment, setup, and removing equipment. | | $400 |
| Soil borings, for purposes of soil or ground water sampling or monitoring well installation when using a hollow stem auger. | | |
| Number of feet in incremental amounts | | |
| | 4.25 inch inside diameter | | |
| | For the first 15 feet | | $24 per foot |
| | 16 through 25 feet | | $30 per foot |
| | 26 feet or more | | $35 per foot |
| | 6.25 inch inside diameter | | |
| | For the first 15 feet | | $27 per foot |
| | 16 through 25 feet | | $33 per foot |
| | 26 feet or more | | $38 per foot |
| | 8.25 inch inside diameter | | |
| | For the first 15 feet | | $30 per foot |
| | 16 through 25 feet | | $36 per foot |
| | 26 feet or more | | $41 per foot |
Rock drilling beyond auger refusal will be is reimbursed at the above rates with an additional $15 per foot. | | |
| These amounts may only be charged one (1) time per borehole. | | |
| Sample collection is part of well installation. Direct push technology must be used when it is most appropriate to the site and cost effective. The diameter of the boring must be appropriate for the size of the well being installed. | | |
| Blind drilling using a hollow stem auger when well borings have already been logged within five (5) feet. | | |
| | 4.25 inch inside diameter | | |
| | For the first 50 feet | | $10 per foot |
| | 51 feet or more | | $12 per foot |
| | 6.25 inch inside diameter | | |
| | For the first 50 feet | | $13 per foot |
| | 51 feet or more | | $15 per foot |
| | 8.25 inch inside diameter | | |
| | For the first 50 feet | | $15 per foot |
| | 51 feet or more | | $18 per foot |
| Decontamination and equipment cleaning | | $12 per each 5 feet of boring |
| Cutting holes in concrete or asphalt (12 inches in diameter) | | $110 per hole |
| Materials | | |
| Well casing and screen (including riser) filter pack, annular, and surface seal: | | |
| | < 2 inch well | | Applicable boring rate plus materials |
| | 2 inch well | | $9 per foot |
| | 4 inch well | | $15 per foot |
| | 6 inch well | | $27 per foot |
| | Flush-grade well covers | | $125 per cover |
| Laboratory services, including containers, packaging, and postage. | | |
| Soil analysis methods | | |
| | TPH–8015 GRO | | $50 per sample |
| | TPH–8015 DRO | | $50 per sample |
| | TPH–8015 ERO | | $50 per sample |
| | TPH–418.1 | | $95 per sample |
| | TRPH–HEM–1664/9071B | | $60 per sample |
| | VOC–8260 | | $130 per sample |
| | SVOC–8270 | | $225 per sample |
| | PAH–8270SIM | | $130 per sample |
| | PAH–8310 | | $150 per sample |
| | PCB–8082 | | $110 per sample |
| | Metals– 7 barium, cadmium, chromium, lead, mercury, nickel, zinc | | $100 per sample |
| | (Individual metals) | | $10 per sample |
| | BTEX/MTBE–8021 | | $60 per sample |
| | BTEX/MTBE–8260 | | $80 per sample |
| | Ignitability | | $30 per sample |
| | Fraction of organic carbon | | $70 per sample |
| Water analysis methods | | |
| | TPH–8015 GRO | | $50 per sample |
| | TPH–8015 DRO | | $50 per sample |
| | TPH–8015 ERO | | $50 per sample |
| | TPH–8015 Methane | | $80 per sample |
| | TRPH–HEM–1664 | | $50 per sample |
| | VOC–8260 | | $135 per sample |
| | BTEX/MTBE–8021 | | $50 per sample |
| | BTEX/MTBE–8260 | | $80 per sample |
| | SVOC–8270 | | $225 per sample |
| | PAH–8270 SIM | | $135 per sample |
| | PAH–8310 | | $150 per sample |
| | Metals– 7 barium, cadmium, chromium, lead, mercury, nickel, zinc | | $100 per sample |
| | (Individual metals) | | $10 per sample |
| | Metal–soluble iron | | $25 per sample |
| | Nitrates | | $25 per sample |
| | Sulfate | | $25 per sample |
| | Sulfide | | $25 per sample |
| | COD | | $20 per sample |
| | BOD5 | | $40 per sample |
| | Total suspended solids | | $20 per sample |
| Air analysis methods | | |
| | VOC–TO–15 | | $400 per sample |
| Other Methods | | |
| TCLP–lead | | $100 per sample |
| If the commissioner requires all quality assurance/quality control (QA/QC), including raw data and internal chain of custody necessary to validate analytical results. | | 20% markup allowed per sample |
| PERSONNEL | | |
When submitting a claim for reimbursement, the applicant shall be is required to give the personnel classification, task being performed, and the name of the individual performing the task. Rates will be are paid based on the task performed by an employee rather than the qualifications of the employee. Refer to subsection (f) for task descriptions for personnel classifications. These labor rates will be are adjusted annually on June 1 of each year, in accordance with the product price index (PPI) percentage listed for December of the previous year. The North American Industry Classification System (NAICS) Code for Environmental Consulting Services is 541620 and is described at: http://www.naics.com/censusfiles/ND541620.HTM https://www.naics.com/naics-code-description/?code=541620 | | |
| The PPI Industry data tables are available through the Bureau of Labor and Statistics (BLS) at: http://www.bls.gov/ppi/home.htm | | |
| | Principal | | $136 per hour |
| | Senior project manager | | $126 per hour |
| | Project manager | | $103 per hour |
| | Staff project person | | $87 per hour |
| | Field Field/ELTF claims technician | | $59 per hour |
| | Drafting person | | $50 per hour |
| | Word processor/clerical | | $35 per hour |
| | Toxicologist | | $155 per hour |
| INITIAL ABATEMENT AND FREE PRODUCT REMOVAL | | |
Except where provided in this rule, approval of costs will be is on a case-by-case basis. | | |
| SITE SET-UP PREPARATION | | |
| | Trailer rental | | $360 per month ($12 per day) |
| | Portable toilet | | $180 per month ($6 per day) |
| | Utility check, the date and time of the utility check must be documented. | | |
| | Utility check includes air knifing, hand augering, and private utility location service. | | $800 |
| | Utilities for temporary facilities | | |
| | Temporary power | | $600 per month ($20 per day) |
| | Temporary water | | $180 per month ($6 per day) |
| | Temporary phone | | $240 per month ($8 per day) |
| DEMOLITION | | |
Three (3) bids must be submitted for demolition of structures in accordance with an approved CAP must submit three (3) bids for reimbursement consideration as defined under CORRECTIVE ACTION TECHNOLOGIES. | | |
| | | | | |
| EXCAVATION | | | |
Activities in accordance with an approved CAP will be are considered for reimbursement based upon the submittal of three (3) bids as defined under CORRECTIVE ACTION TECHNOLOGIES or the following unit rates: | | | |
| Equipment costs and labor | $2.70 per ton | |
| Mobilization (includes vehicle mileage) | $400 per trailer | |
| Stockpiling soil on-site | $1.65 per ton | |
| Tank removal, decommissioning, cutting, and disposal are not eligible for reimbursement unless approved as part of corrective action. | | | |
| | Under 1,000 gallons | $1,200 per tank | |
| | 1,000 through 5,999 gallons | $1,800 per tank | |
| | 6,000 through 10,000 gallons | $2,400 per tank | |
| | Above 10,000 gallons | $3,000 per tank | |
| Costs for pumping, testing, and disposal of tank contents are not eligible for reimbursement. | | | |
Three (3) bids must be submitted for demolition of structures in accordance with an approved CAP must submit three (3) bids for reimbursement consideration as defined under CORRECTIVE ACTION TECHNOLOGIES. | | | |
| Mobilization (includes vehicle mileage) | $400 per trailer | |
| Concrete and asphalt removal | | | |
| Saw concrete, prices are per linear foot | | | |
| | | | 4 inch concrete | 6 inch concrete | |
| | Under 200 feet | $1.60 per foot | $2.40 per foot | |
| | 200 through 400 feet | $1.70 per foot | $2.20 per foot | |
| | 400 through 600 feet | $1.60 per foot | $2.10 per foot | |
| | 600 through 1,000 feet | $1.45 per foot | $2 per foot | |
| | Over 1,000 feet | $1.30 per foot | $1.80 per foot | |
| Saw asphalt, prices are per linear foot | | | |
| | | | 3 inch asphalt | 4 inch asphalt | 6 inch asphalt |
| | Under 450 feet | $2.20 per foot | $2.30 per foot | $3.60 per foot |
| | 450 through 600 feet | $1.80 per foot | $2.20 per foot | $2.50 per foot |
| | 600 through 1,000 feet | $1.60 per foot | $1.80 per foot | $2.20 per foot |
| | Over 1,000 feet | $1.50 per foot | $1.60 per foot | $1.80 per foot |
| Hauling | $85 per hour per truck | |
The administrator will also shall approve hauling costs based on three (3) bids. | | | |
| TRANSPORTATION | | | |
Activities in accordance with an approved CAP will be are considered for reimbursement based upon the submittal of three (3) bids as defined under CORRECTIVE ACTION TECHNOLOGIES or the following unit rates: | | | |
| | Loading | $1.65 per ton | |
| | Mobilization (includes vehicle mileage) | $400 per trailer | |
| | Hauling mileage must be documented | $85 per hour per truck | |
| | For excavation, stockpiling, and loading of less than 300 tons in a single day. | $1,200 per day or the actual cost, whichever is less |
| DISPOSAL OF SOIL, GROUND WATER, AND TRASH | | | |
| | Landfill fees | | | |
| | Sampling required by landfill. Must include Receipts and analytical results from local municipality must be included. | | | |
| | Sanitary sewer, if approved for disposal of treated ground water. Must include Receipts must be included. | | | |
| | Contaminated or disposable equipment and decontamination fluids. | | | |
Landfill reimbursement will must not exceed the least expensive combination of documented hauling costs and documented disposal costs at a permitted landfill. Applicant must submit a cost justification if the applicant does not use the nearest land disposal facility permitted and willing to accept the applicant's waste. | | | |
| CORRECTIVE ACTION TECHNOLOGIES | | | |
The maximum costs for the work done for corrective action will be are allowed on the basis of the lowest of three (3) comparable, competitive bids for the work specified in the approved CAP. Bids for the work specified in the CAP must include bids for installation and labor; however, separate bids may be obtained for cost of installation and labor. Copies of the request for proposal (RFP) for implementation of CAP that was sent to each vendor must be submitted. Each RFP and bid submittal will be is required to show a line item breakdown of the tasks to be performed in order to verify that all tasks are eligible for reimbursement. The administrator can may approve costs based on less than three (3) bids if a demonstration is provided to the administrator that lower costs for the specified work is not possible or practical. | | | |
Lease or rental on equipment will must not be reimbursed above the purchase price. | | | |
| SITE RESTORATION | | | |
Activities in accordance with an approved CAP will be are considered for reimbursement based upon the submittal of three (3) bids as defined under CORRECTIVE ACTION TECHNOLOGIES or the following unit rates: | | | |
| | Backfill hauling | $85 per hour per truck | |
| | Backfill material | $18 per ton of stone | |
| | | | $9 per ton of soil | |
| | Backfill placement, compaction, and density verification | $6 per ton | |
| | Resurfacing | | | |
| | | 4 inch concrete | $5 per square foot | |
| | | For each additional inch of concrete | Add $0.75 per square foot | |
| | | For rebar | Add 15% | |
| | | Asphalt pad, 4 inch thickness | $2.75 per square foot | |
| | | Asphalt curb and gutter | $6 per linear foot | |
| | Island forms | | | |
| | | 4 feet by 10 feet with 2 foot bumpers | $900 each | |
| | | 4 feet by 16 feet with 2 foot bumpers | $1,400 each | |
| | Equipment rental (based on daily rate; not an inclusive list) | | | |
| | Decontamination equipment (bucket, brushes, and detergent) | $15 | | |
| | Power auger | $60 | | |
| | Hand auger sampling kit (hand auger/brass sleeves) | $42 | | |
| | Slide hammer core sampler | $42 | | |
| | Photoionization detector | $90 | | |
| | Flame ionization detector | $135 | | |
| | LED/O2 meter | $60 | | |
| | pH and conductivity meter | $24 | | |
| | Dissolved oxygen meter | $36 | | |
| | Oxidation/reduction meter (REDOX) | $50 | | |
| | Multiparameter water quality meter including pH, dissolved oxygen, temperature, and conductivity | $60 | | |
| | Ferrous iron field test | $8 per sample | |
| | Hydrogen sulfite field test | $8 per sample | |
| | Geographic positioning system (GPS) unit for site mapping to 1 foot accuracy | $120 | | |
| | 2 inch submersible pump | $140 | | |
| | 4 inch submersible pump | $115 | | |
| | Steam cleaner/pressure washer | $90 | | |
| | Water level indicator | $15 | | |
| | Oil/water interface probe | $70 | | |
| | Bailer rental | $20 | | |
| | Anemometer | $42 | | |
| | Carbon dioxide meter | $30 | | |
| | Portable generator, generator < 5kW | $60 | | |
| | Portable generator, generator < 10kW | $120 | | |
| | Portable generator, generator > 10kW | $150 | | |
(f) The following categories describe the personnel classification activity descriptions:
(1) The principal will shall do the following:
(A) Serve as technical expert on sites.
(B) Limited site visits on projects.
(C) Coordinate legal matters with attorneys.
(2) The senior project manager (limited to licensed professional geologist or hydrogeologist (LPG), registered professional engineer (PE), certified hazardous materials manager (CHMM), professional soil scientist, or at least five (5) years professional remediation experience) will shall provide the following:
(A) Project planning/oversight.
(B) Final review of project documents.
(C) Acquisition of and negotiation with subcontractors.
(D) Hydrogeologic and contaminant modeling.
(E) Remediation system design.
(F) Risk integrated system of closure (RISC) evaluation.
(3) The project manager will shall provide the following:
(A) Remediation work plan and Technical document preparation required by 329 IAC 9 (CAP, ISC, FSI, pilot study, etc.).
(B) Site work preparation and planning.
(C) Supervision of investigation and remediation activities.
(D) Oversight of waste characterization, transportation, and disposal.
(E) RISC Statistics and equations required by the department for corrective action in accordance with applicable guidance.
(F) Coordination of subcontractor work (drillers, plumbers, and electricians).
(G) Coordination of heavy equipment mobilization.
(H) Coordination with the department and the client.
(I) Site access/permitting.
(4) The staff project person will shall do the following:
(A) Implement remediation system installation, operation, and maintenance.
(B) Conduct site mapping.
(C) Oversee installation of soil borings and monitoring wells.
(D) Provide on-site supervision or perform site characterization and remediation activities, or both.
(E) Oversee well water records searches.
(F) Define how site utilities are marked. Request, oversee, or identify and mark utility location on the site.
(G) Survey wells.
(H) Oversee free product removal.
(I) Oversee quarterly sampling.
(5) The field field/ELTF claims technician will shall perform the following:
(A) Well purging and development.
(B) Sample collection, preparation, and delivery.
(C) Decontamination/site cleanup tasks.
(D) Assist with waste characterization, transportation, and disposal, including drum labeling/disposal.
(E) Activities associated with the operation and maintenance of remediation systems.
(F) Activities associated with preparation and submittal of the ELTF claim.
(6) The drafting person will shall do the following:
(A) Provide CADD computer-aided design drafting work.
(B) Generate the following:
(i) Drawings.
(ii) Maps and plans.
(iii) Boring logs.
(iv) Monitoring well installation logs.
(C) Revise drawings and maps and plans.
(7) The word processor/clerical will person shall provide the following:
(A) Word processing/data input.
(B) General clerical duties.
(C) Documentation reproduction, report binding, and filing.
(D) Proofreading/editing.
(8) The toxicologist will shall provide guidance for nondefault risk-based closures utilizing nondefault toxicological parameters.
(g) Attorney costs will be are considered for reimbursement as follows:
(1) Attorney costs will be are reimbursed under the following circumstances:
(A) An attorney acting as a principal, senior project manager, or project manager on a site directing field investigations or preparing the technical reports related to investigative or remediation activities. In this instance, the attorney must have the appropriate technical credentials required for an individual performing these tasks, such as PE, LPG, CHMM, or soil scientist.
(B) An attorney communicating to the department regarding remediation actions, preparing restrictive covenants, or access negotiations.
(C) Fees charged that do not exceed one thousand dollars ($1,000) for either environmental restrictive covenant preparation or access negotiation.
(2) An attorney will may not be reimbursed for the following:
(A) Reviewing consultant reports.
(B) Charging fees in excess of the principal, senior project manager, or project manager as defined in this rule for the same personnel activities. Fees charged must also appropriately correspond to tasks performed.
*This document is incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, Thirteenth Floor, 100 North Senate Avenue, Indianapolis, IN 46204.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-3-5; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1054; filed Nov 1, 1995, 8:30 a.m.: 19 IR 343; filed Jan 9, 1997, 4:00 p.m.: 20 IR 1105; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 792; errata filed Feb 27, 2002, 9:58 a.m.: 25 IR 2255; filed Aug 30, 2004, 9:40 a.m.: 28 IR 129; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-4-1 General procedure for prioritization
Authority: IC 13-23
Sec. 1. (a) The following shall procedures in this section apply in the event the unencumbered balance, less the unpaid, approved claims for reimbursable costs and third party liability ELTF indemnity claims, in the fund falls below the following:
(1) Twenty-five million dollars ($25,000,000). the releases will be categorized according to this section.
(2) Five million dollars ($5,000,000), with the prioritized claims, based on the categorized releases, will be paid according to in accordance with section 4 of this rule.
The administrator may invoke these procedures this section prior to the unencumbered fund balance, less the unpaid, approved claims for reimbursable costs and third party liability, ELTF indemnity claims, falling below the amounts specified in subdivision (1) or (2).
(b) All claims or parts of claims submitted to the administrator for an emergency measure as defined under 328 IAC 1-1-5.1, will be are paid first. If the claim or part of the claim is for work performed that has not been determined to be an emergency measure, as defined under 328 IAC 1-1-5.1, the claim or part of the claim for that work will be is paid:
(1) according to the category of the fund qualifying occurrence eligible release as determined in subsection (c); and
(2) after the payment of all claims or parts of claims for emergency measures.
(c) After the initial site characterization, further site investigation, or a corrective action progress report is completed, the fund qualifying occurrence will be eligible release is placed in the lowest numbered category for which it qualifies as follows, and all claims for reimbursement of costs and third party liability shall be ELTF indemnity claims are paid in numerical order of the fund qualifying occurrence eligible release category subject to the release recategorization provisions under section 3 of this rule:
(1) An eligible release is considered a category 1 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and it is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 1 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for emergency measures are paid as provided in subsection (b): eligible release:
(A) Petroleum or petroleum constituents that exceed ten percent (10%) lower explosive limit (LEL) are detected in a structure or a utility conduit, such as a:
(i) storm sewer;
(ii) sanitary sewer; or
(iii) utility conduit.
that exceed ten percent (10%) lower explosive limit (LEL).
(B) Vapors for petroleum or petroleum constituents are detected in an inhabitable a building in at levels greater than long-term, risk-based exposure the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for contaminants of concern. (C) Petroleum or petroleum constituents are detected in a drinking water well at or above maximum contamination levels (MCLs) or RISC residential the appropriate screening levels for ground water cleanup objectives as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 at the point of compliance or at the tap. (2) An eligible release is considered a category 2 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 2 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 1 fund qualifying occurrences are paid as provided in subdivision (1): eligible release:
(A) Petroleum or petroleum constituents are detected in free phase in a thickness of at least one (1) foot in any one (1) well, or at least one (1) inch in two (2) or more wells where the wells are at least twenty (20) feet apart, provided that the wells are not screened in the underground storage tank cavity backfill.
(B) Petroleum or petroleum constituents are detected in surface water above water quality standards under rules of the water pollution control board at 327 IAC 2. (3) An eligible release is considered a category 3 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 3 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 2 fund qualifying occurrences are paid as provided in subdivision (2): eligible release:
(A) Petroleum or petroleum constituents are detected off-site in ground water at concentrations exceeding RISC cleanup standards the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use of the off-site location. (B) Petroleum or petroleum constituents are detected off-site in soil at concentrations exceeding RISC cleanup standards the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use of the off-site location. (C) Petroleum or petroleum constituents are present in free phase in a thickness of at least one-sixteenth (1/16) inch in any well.
(D) Petroleum or petroleum constituents, attributable to a gasoline release, are detected in the ground water at concentrations exceeding RISC cleanup standards for the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use. For the purposes of this clause, gasoline has the meaning set forth in 45 IAC 12-1-7. IC 6-6-1.1-103(g).
(4) An eligible release is considered a category 4 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the fund qualifying occurrence, then the fund qualifying occurrence is considered a category 4 fund qualifying occurrence and claims for that fund qualifying occurrence shall be paid after all approved claims for category 3 fund qualifying occurrences are paid as provided in subdivision (3): eligible release:
(A) Petroleum or petroleum constituents are detected in on-site ground water at concentrations exceeding RISC industrial cleanup standards, the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2, in two (2) or more wells, where the wells are at least twenty (20) feet apart, where neither well is screened in the underground storage tank cavity backfill. (B) Petroleum or petroleum constituents are detected in on-site soil at concentrations exceeding RISC industrial cleanup standards, the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2, in at least two (2) boring holes at least twenty (20) feet apart. (5) A fund qualifying occurrence An eligible release that does not qualify as a category 1, 2, 3, or 4 category will be eligible release is considered a category 5 fund qualifying occurrence. eligible release.
(6) Claims in the same category will be are paid in chronological order according to the date and time received by the administrator as indicated by the date and time stamped by the administrator on the claim submitted to the administrator.
(d) Fund qualifying occurrences shall Eligible releases must be initially categorized according to those conditions that existed at the time the first claim was submitted after prioritization was initiated.
(e) Claims determined to not be unreimburseable reimbursable may be revised and resubmitted to the fund. The date and time of the revised claim for the purposes of subsection (c)(6) shall must be based on the date and time that the fund administrator receives the revised claim as indicated by the date and time stamped by the administrator on the claim submitted to the administrator.
(f) An applicant may request a review of a denial of payment using the procedures set forth in IC 13-23-9-4. (g) Categorization of a fund qualifying occurrence an eligible release or placement of a claim on a priority list does not constitute a commitment to reimburse corrective action or third party liability ELTF indemnity claim costs.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-4-1; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1055; filed Nov 1, 1995, 8:30 a.m.: 19 IR 347; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 799; filed Aug 30, 2004, 9:40 a.m.: 28 IR 137; errata filed Oct 7, 2004, 11:45 a.m.: 28 IR 608; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-4-3 Recategorization of eligible releases
Authority: IC 13-23
Sec. 3. (a) To assure ensure the efficient administration of the fund, the administrator may recategorize a fund qualifying occurrence an eligible release at any time that it is determined a fund qualifying occurrence an eligible release has been incorrectly categorized as follows:
(1) The administrator will shall notify the applicant by mail of the new category.
(2) The applicant may petition the administrator to be put in a lower number category, with category 1 being the lowest, based on new information.
(3) If the administrator approves placement in a lower number category, the applicant may seek reimbursement under the new category for any costs incurred subsequent to the placement in the new category.
(4) If the administrator approves placement in a higher number category with category 5 being the highest category, the applicant has fifteen (15) days after the date of the notification to submit current costs under the new category.
(b) Fund qualifying occurrences Eligible releases may be recategorized based on:
(1) the current environmental conditions;
(2) information indicating the elimination or abatement of the condition or conditions that led to the placement of a fund qualifying occurrence an eligible release in a category;
(3) other information available to the administrator demonstrates that recategorization is appropriate; or
(4) (3) the discovery of the event that led to the placement in a lower category with category 1 being the lowest; or
(4) other information available to the administrator demonstrates that recategorization is appropriate.
(c) Except as provided in sections 1.5 and 3(a) of this rule, subsection (a), the priority of a claim is determined by the category of the fund qualifying occurrence eligible release at the time the claim is approved by the administrator and by section 1(c)(6) of this rule.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-4-3; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1055; filed May 25, 1999, 4:31 p.m.: 22 IR 3103; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Aug 30, 2004, 9:40 a.m.: 28 IR 141; errata filed Oct 7, 2004, 11:45 a.m.: 28 IR 608; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
Authority: IC 13-23
Sec. 4. (a) After priority payment under section 1(a)(2) of this rule is initiated, the total amount reimbursed from the fund in any calendar month must not exceed the fund revenue of the previous month, less the administrative expenses of the fund. However, The administrator must adjust the total amount reimbursed from the fund in any calendar month as necessary to maintain a fund balance of at least five million dollars ($5,000,000).
(b) For purposes of this section, "fund revenue" means any or all sources of money as described in IC 13-23-7-2.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-4-4; filed Aug 30, 2004, 9:40 a.m.: 28 IR 141; errata filed Oct 7, 2004, 11:45 a.m.: 28 IR 608; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; readopted filed Jun 6, 2016, 11:51 a.m.: 20160706-IR-328160142BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-4-5 Discontinuation of prioritization
Authority: IC 13-23
Sec. 5. (a) At any time after the administrator has invoked prioritization procedures, the administrator may discontinue the categorization of fund qualifying occurrences eligible releases and the prioritization of claims if the administrator determines that the unencumbered balance, less the unpaid, approved claims for reimbursable costs and third party liability ELTF indemnity claims is greater than twenty-five million dollars ($25,000,000).
(b) In the event that monies are deposited in or appropriated to the fund in an amount exceeding twenty-five million dollars ($25,000,000) in any calendar month, the administrator shall first apply the monies to restore the balance of the fund to an unencumbered balance, less the unpaid, approved claims for reimbursable costs and third party liability, ELTF indemnity claims, of twenty-five million dollars ($25,000,000). In that event, the administrator shall discontinue the prioritization procedures.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-4-5; filed Aug 30, 2004, 9:40 a.m.: 28 IR 141; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-5-1 Applications for payment of reimbursable costs
Authority: IC 13-23
Sec. 1. (a) Claim applications for reimbursement shall must be submitted on forms adopted approved by the administrator. Applicants shall itemize all reimbursable costs as required by the application package. Documentation of reimbursable costs as required by the administrator must be submitted as part of the application. The administrator may request additional information and records to substantiate claims submitted including the following:
(1) A copy of original employee time sheets.
(2) Invoices relating to purchase or other acquisition of equipment and supplies used for corrective action.
(3) Copies of requests for bids for work specified in the CAP.
(b) The application shall must contain the following statement, which shall must be signed and attested by the person applying to the fund: "I swear or affirm to the best of my knowledge and belief that the costs presented herein represent the reimbursable costs actually incurred in the performance of site characterization or corrective action related to this site during the period of time indicated on this application. I also swear or affirm that all charges presented as part of this application were necessary to the performance of site characterization or corrective action.". If the person applying has been assigned the right to reimbursement under this rule, the person who assigned that right shall also sign and attest the application.
(c) One (1) copy of all documents required by the administrator shall must be submitted by the person applying to the fund to support the application. Original documents must be kept by the person applying to the fund for a minimum of four (4) years after the date the application for payment was submitted or four (4) years after completion of corrective action, whichever is later.
(d) Claims, other than final claims, that had costs disallowed, if resubmitted, must be resubmitted with subsequent claims. The portion of the claim that was previously submitted must be identified as being previously submitted and include the dollar value of the original claim. The same disallowed cost may only be submitted to the department for consideration three (3) times, including the initial claim submittal.
(e) A single claim application may not be submitted to the fund for reimbursement in an amount less than five thousand dollars ($5,000) unless the claim is one (1) of the following:
(1) The final application for that incident and the claim is identified as such.
(2) A claim for costs incurred over six (6) months one hundred eighty (180) days from the date of the previous claim.
(3) A claim made within fifteen (15) days of a fund qualifying occurrence an eligible release being categorized to a lower category, with one (1) being the highest category, under 328 IAC 1-4. (4) Zero dollars ($0)/eligibility Eligibility preapproval claims requesting zero dollars ($0).
Authority: IC 13-23
Sec. 2. (a) Contingent on the availability of monies as determined by 328 IAC 1-2-3, the administrator shall authorize payment upon determining that the requirements of IC 13-23-9-2 IC 13-23-8, IC 13-23-9, and this article have been met. Payment will be is made as follows:
(1) When a person applying to the fund submits an application under section 1 of this rule which that includes reimbursable costs for which that person has not made payment, then payment shall must be made by check jointly to the person applying to the fund and the contractor involved using a payment method accepted by the department.
(2) When a person applying to the fund submits documentation verifying that the person has incurred reimbursable costs, payment shall must be made by check directly to that person using a payment method accepted by the department.
(b) A determination under this rule is appealable under IC 13-23-9-4. (c) Only the owner, operator, or responsible an eligible party may seek preapproval of eligibility to have reimbursable costs or third party liability ELTF indemnity claims paid from the fund.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-5-2; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1056; filed May 25, 1999, 4:31 p.m.: 22 IR 3103; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 801; filed Aug 30, 2004, 9:40 a.m.: 28 IR 142; readopted filed Nov 19, 2010, 9:08 a.m.: 20101215-IR-328100553BFA; filed Feb 24, 2011, 2:04 p.m.: 20110323-IR-328080684FRA; readopted filed Jun 29, 2017, 9:30 a.m.: 20170726-IR-328170227BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
Rule 6. ELTF Indemnity Claims
328 IAC 1-6-1 Applications for payment of ELTF indemnity claims
Authority: IC 13-23
Sec. 1. (a) Applications for reimbursement of third party liability ELTF indemnity claims against owners or operators shall must be submitted on approved forms established by the administrator. The applicant must attach either a certified copy of a legally enforceable final judgment against the owner or operator or a reasonable settlement between the owner or operator and the third party.
(b) The owner or operator must provide evidence of payment of costs incurred equal to the applicable deductible and any additional amount under IC 13-23-8-3. IC 13-23-9-1.3.
(c) When submitting an application to the administrator under subsection (a), the owner or operator must also forward a copy of the request to the attorney general.
(d) The minimum single claim amount contained in 328 IAC 1-5-1(d)(1) 328 IAC 1-5-1(e) does not apply to third party liability ELTF indemnity claims.
328 IAC 1-6-2 Fund payment procedures for ELTF indemnity claims
Authority: IC 13-23
Sec. 2. (a) If the attorney general determines that the requirements under approves an ELTF indemnity claim in accordance with IC 13-23-9-3, have been met, the attorney general shall approve a request for payment of a third party liability claim not later than sixty (60) days after receiving the request. the administrator shall thereafter pay the approved third party liability ELTF indemnity claim in accordance with this rule:
(1) if sufficient monies exist after other obligations have been met under 328 IAC 1-2-3; (2) based upon the category of the fund qualifying occurrence eligible release and ranking of the claim under 328 IAC 1-4, if applicable; and (3) if the administrator determines that the owner or operator is in compliance with the requirements of IC 13-23 and rules adopted thereunder. (b) When a third party liability an ELTF indemnity claim is approved by the attorney general but the claim has not already been paid by the owner or operator, then payment shall must be made jointly by check to the eligible owner or operator and the third party using a payment method accepted by the department.
(c) When a third party liability an ELTF indemnity claim is approved by the attorney general and the owner or operator submits to the administrator documentation verifying that the owner or operator has paid the third party liability ELTF indemnity claim, payment shall must be made directly to the eligible owner or operator.
(d) Third party liability ELTF indemnity claims subject to approval by the attorney general shall must include the reasonable fees or compensation paid for any of the following:
(1) Access to properties not controlled by the applicant, if not submitted as a reimbursable cost under 328 IAC 1-3-5. (2) Institutional and engineered controls for off-site properties, including but not limited to, restrictive covenants as defined under IC 13-11-2-193.5. (3) Attorney's fees, not to exceed twenty-five percent (25%) of the total claim or thirty thousand dollars ($30,000), whichever is less, shall only be are only payable if incurred by the owner or operator in defense of a third party liability an ELTF indemnity claim.
328 IAC 1-6-3 Components of ELTF indemnity claims
Authority: IC 13-23
Sec. 3. (a) An ELTF indemnity claim may consist of monetary damages a tank owner or operator is legally obligated to pay for injury, costs, and damage suffered by a third party as the result of a release, including bodily injury and property damage.
(b) An ELTF indemnity claim may not include the following:
(1) Punitive or exemplary damages.
(2) Claims for injury, costs, or damages arising on behalf or in favor of a person listed in 328 IAC 1-3-1.
(3) Costs that were previously determined ineligible for reimbursement.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-6-3; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
328 IAC 1-7-2 Termination of financial assurance
Authority: IC 13-23-11-7
Sec. 2. (a) After consultation with the financial assurance board, the administrator may determine that the fund does not provide owners or operators evidence of financial assurance for owners and operators.
(b) If a determination is made under subsection (a), the administrator shall notify all fund participants by certified mail.
(c) The fund coverage will continue continues for sixty (60) days after the notice of insufficient funds to provide for financial assurance owners or operators shall have is sent to the fund participants.
(d) Within thirty (30) days after receipt of the notice of insufficient funds, to owners and operators shall:
(1) acquire financial assurance as required under 329 IAC 9-8. Owners and operators shall 329 IAC 9; and
(2) provide proof of financial responsibility to the department.
(e) Invocation of prioritization under 328 IAC 1-4 does not constitute termination of financial assurance under this section.
(Underground Storage Tank Financial Assurance Board; 328 IAC 1-7-2; filed Dec 4, 1992, 11:00 a.m.: 16 IR 1057; readopted filed Jan 10, 2001, 3:21 p.m.: 24 IR 1534; filed Oct 17, 2001, 4:30 p.m.: 25 IR 803; filed Aug 30, 2004, 9:40 a.m.: 28 IR 144; readopted filed May 14, 2007, 1:52 p.m.: 20070523-IR-328070137BFA; readopted filed Jul 29, 2013, 9:18 a.m.: 20130828-IR-328130177BFA; filed Jul 27, 2018, 2:31 p.m.: 20180822-IR-328150231FRA)
Hearing Held: March 8, 2018
Approved by Attorney General: Deemed approved by the Attorney General without signature under IC 4-22-2-32 on July 20, 2018
Approved by Governor: July 27, 2018
Filed with Publisher: July 27, 2018, 2:31 p.m.
Documents Incorporated by Reference: 41 CFR 301-10.303, July 1, 2017 Edition
Small Business Regulatory Coordinator: Angela Taylor, IDEM Small Business Regulatory Coordinator/CTAP Small Business Liaison, IGCN 1316, 100 North Senate Avenue, Indianapolis, IN 46204-2251, (317) 233-0572 or (800) 988-7901, ctap@idem.in.gov
Small Business Assistance Program Ombudsman: Erin Moorhous, IDEM Small Business Assistance Program Ombudsman/Business, Agricultural, and Legislative Liaison, IGCN 1301, 100 North Senate Avenue, Indianapolis, IN 46204-2251, (317) 232-8921 or (800) 451-6027, emoorhous@idem.in.gov
Posted: 08/22/2018 by Legislative Services Agency
DIN: 20180822-IR-328150231FRA
Composed: Apr 28,2024 3:41:47PM EDT
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