Substitute House Bill No. 5763

Public Act No. 00-201

An Act Concerning The Underground Storage Tank Amnesty Program.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 22a-449a of the general statutes is repealed and the following is substituted in lieu thereof:

As used in this section and sections 22a-449c to [22a-449g] 22a-449i, inclusive, and sections 4 to 7, inclusive, of this act:

(1) "Petroleum" means crude oil, crude oil fractions and refined petroleum fractions, including gasoline, kerosene, heating oils and diesel fuels;

(2) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of petroleum from any underground storage tank or underground storage tank system;

(3) "Responsible party" means any person or entity, including the state and any political subdivision of the state, which owns or operates an underground storage tank or underground storage tank system from which a release emanates;

(4) "Underground storage tank" means a tank or combination of tanks, including underground pipes connected thereto, used to contain an accumulation of petroleum, whose volume is ten per cent or more beneath the surface of the ground, including the volume of underground pipes connected thereto; [and]

(5) "Underground storage tank system" means an underground storage tank and any associated ancillary equipment and containment system; and

(6) "Residential underground heating oil storage tank system" means (A) an underground storage tank system used in connection with residential real property composed of four residential units or fewer, or (B) a storage tank system and any associated ancillary equipment used in connection with residential real property composed of four residential units or fewer.

Sec. 2. Section 22a-449c of the general statutes is repealed and the following is substituted in lieu thereof:

(a) (1) There is established an account to be known as the "underground storage tank petroleum clean-up account". The underground storage tank petroleum clean-up account shall be an account of the Environmental Quality Fund. Notwithstanding any provision of the general statutes to the contrary, any moneys collected shall be deposited in the Environmental Quality Fund and credited to the underground storage tank petroleum clean-up account. Any balance remaining in said account at the end of any fiscal year shall be carried forward in said account for the fiscal year next succeeding.

[(b)] (2) The account shall be used by the Commissioner of Environmental Protection to provide money for reimbursement or payment to responsible parties or parties supplying goods or services, or both, to responsible parties for costs, expenses and other obligations paid or incurred, as the case may be, as a result of releases, and suspected releases, costs of investigation of releases and suspected releases, and third party claims for bodily injury, property damage and damage to natural resources. Notwithstanding the provisions of this section, the responsible party for a release shall bear all costs of the release that are less than ten thousand dollars or more than one million dollars, except that for any such release which was reported to the department prior to December 31, 1987, and for which more than five hundred thousand dollars has been expended by the responsible party to remediate such release prior to June 19, 1991, the responsible party for the release shall bear all costs of such release which are less than ten thousand dollars or more than three million dollars. There shall be allocated to the department annually, for administrative costs, one million one hundred fifty thousand dollars.

(b) There is established a subaccount within the underground storage tank petroleum clean-up account to be known as the "residential underground heating oil storage tank system clean-up subaccount" to be used solely for the provision of reimbursements under section 3 of public act 99-269, as amended by this act, for the remediation of contamination attributed to residential underground heating oil storage tank systems. The subaccount shall hold the proceeds of the bond funds allocated pursuant to section 51 of public act 00-167.

Sec. 3. Section 22a-449d of the general statutes, as amended by section 4 of public act 99-269, is repealed and the following is substituted in lieu thereof:

(a) There is established an Underground Storage Tank Petroleum Clean-Up Account Review Board to review applications for reimbursements and payments from the account established under section 22a-449c, as amended by this act. Upon application for reimbursement or payment pursuant to section 22a-449f the board shall determine if a release occurred and damage resulted from such release and the amount of any such damage. The board shall have the authority to order payment from the residential underground heating oil storage tank system clean-up subaccount to registered contractors for reasonable costs associated with the remediation of a residential underground heating oil storage tank system based on the guidelines established pursuant to subsection (c) of section 22a-449d, as amended by this act; hold hearings, administer oaths, subpoena witnesses and documents through its chairperson when authorized by the board; designate an agent to perform such duties of the board as it deems necessary except the duty to render a final decision to order reimbursement or payment from the account; and provide by notice, printed on any form, that any false statement made thereof or pursuant thereto is punishable pursuant to section 53a-157b.

(b) The board shall consist of the Commissioners of Environmental Protection and Revenue Services, the Secretary of the Office of Policy and Management and the State Fire Marshal, or their designees; one member representing the Connecticut Petroleum Council, appointed by the speaker of the House of Representatives; one member representing the Service Station Dealers Association, appointed by the majority leader of the Senate; one member of the public, appointed by the majority leader of the House of Representatives; one member representing the Independent Connecticut Petroleum Association, appointed by the president pro tempore of the Senate; one member representing the Connecticut Gasoline Retailers Association, appointed by the minority leader of the House of Representatives; one member representing a municipality with a population greater than one hundred thousand, appointed by the Governor; one member representing a municipality with a population of less than one hundred thousand, appointed by the minority leader of the Senate; one member representing a small manufacturing company which employs fewer than seventy-five persons, appointed by the speaker of the House of Representatives; [and] one member experienced in the delivery, installation, and removal of residential underground petroleum storage tanks and remediation of contamination from such tanks, appointed by the president pro tempore of the Senate; and one member who is an environmental professional licensed under section 22a-133v and is experienced in investigating and remediating contamination attributable to underground petroleum storage tanks, appointed by the Governor. The board shall annually elect one of its members to serve as chairperson.

(c) Not later than July 1, 2000, the board shall establish guidelines for determining what costs are reasonable for payment under section 3 of public act 99-269, as amended by this act, and shall establish requirements for financial assurance, training and performance standards for registered contractors, as defined in said section 3 of public act 99-269.

Sec. 4. Section 1 of public act 99-269 is repealed and the following is substituted in lieu thereof:

(a) No person shall be liable to the state in any civil action for any cost relating to any spill, as defined in section 22a-452c of the general statutes, attributable to [an underground storage tank system, as defined in section 22a-449a of the general statutes, used in connection with residential real property comprised of four residential units or fewer] a residential underground heating oil storage tank system if (1) such person has provided for the removal or replacement of [an underground petroleum storage tank associated with] such system after July 1, 1999, and before January 1, 2002, and (2) such person has provided notice and documentation of such removal or replacement to the Commissioner of Environmental Protection in such form and containing such information as the commissioner may require. After a person has been released from potential liability pursuant to this subsection, such release as it applies to such removal or replacement shall apply to subsequent owners of property where such removal or replacement occurred. The provisions of this subsection shall not apply to any person who fails to discontinue the use of or to remove a residential underground heating oil storage tank system within the period specified by an order of the Commissioner of Environmental Protection. Removals and replacements shall be conducted in accordance with subsection (a) of section 7 of this act.

(b) On or before January 1, 2000, and annually thereafter until January 1, 2003, the commissioner shall report to the joint standing committee of the General Assembly having cognizance of matters relating to the environment regarding the program established under this section, the extent to which it is used and the extent of the state's liability for environmental remediation as a result of the program.

Sec. 5. Section 2 of public act 99-269 is repealed and the following is substituted in lieu thereof:

[Any person in the business of removing or replacing underground storage tanks pursuant to section 22a-449l shall register with the Commissioner of Environmental Protection and shall provide to said commissioner] No person shall remove or replace or subcontract for the removal or replacement of a residential underground heating oil storage tank system if the person finds such removal or replacement will involve remediation of contaminated soil or groundwater, the costs of which are to be paid out of the residential underground heating oil storage tank system clean-up subaccount established pursuant to subsection (b) of section 22a-449c, as amended by this act, unless the person is a registered contractor. To become a registered contractor, a person shall provide to the Commissioner of Environmental Protection, on forms prescribed by said commissioner, (1) evidence of financial assurance in the form of insurance, a surety bond or liquid company assets in an amount not less than two hundred fifty thousand dollars, and (2) a written statement certifying that such person has had any training required by law for such business and that such person has (A) performed no fewer than three residential underground petroleum storage tank system removals, or (B) has contracted for at least three removals of residential underground petroleum storage tank systems. Such person shall pay a registration fee of five hundred dollars to the commissioner. Each contractor holding a valid registration on July first shall, not later than August first of that year, pay a renewal fee to the commissioner of two hundred fifty dollars in order to maintain such registration. Any money collected for registration pursuant to this section shall be deposited in the Environmental Quality Fund. The commissioner may revoke a registration for cause and, on and after the date the review board establishes requirements for financial assurance, training and performance standards under subsection (c) of section 22a-449d, as amended by this act, may reject any application for registration that does not meet such requirements.

Sec. 6. Section 3 of public act 99-269 is repealed and the following is substituted in lieu thereof:

(a) As used in this section, ["contractor"] "registered contractor" means a person registered with the Commissioner of Environmental Protection pursuant to section 2 of [this act] public act 99-269, as amended by this act. [No person who is not a contractor may remove or replace any underground petroleum storage tank used in connection with residential real property comprised of four residential units or fewer if such removal or replacement will involve remediation of contaminated soil or groundwater the costs of which are to be paid out of the not less than two million dollars set aside from the proceeds of bonds authorized under subdivision (1) of subsection (b) of sections 13 and 32 of public act 99-242* for the purpose of providing funding for remediation of soil contaminated by a release from a home heating oil tank. If any such replacement involves installation of an underground petroleum storage tank, such tank shall conform to any standards which apply to new underground petroleum storage tanks.]

(b) If, in the course of removing or replacing [an underground petroleum storage tank associated with an underground storage tank system, as defined in section 22a-449a of the general statutes, used in connection with residential real property comprised of four residential units or fewer,] a residential underground heating oil storage tank system, a registered contractor finds that there has been a spill, as defined in section 22a-452c of the general statutes, attributable to such system and such contractor estimates that the remediation of such spill is likely to cost more than five thousand dollars, such contractor shall immediately notify the [spill response unit of the] Department of Environmental Protection regarding such spill. If, after the contractor's initial estimate, the contractor subsequently determines that such cost will exceed five thousand dollars, the contractor shall upon that determination notify the Department of Environmental Protection. The department may assess the spill and confirm that the remediation proposed by the contractor is appropriate and necessary, or may authorize an environmental professional licensed under section 22a-133v of the general statutes, to assess the spill and make such confirmation. Any such remediation shall be subject to approval by the department, except that the department may authorize an environmental professional licensed under section 22a-133v of the general statutes to make a recommendation regarding such approval. If a registered contractor estimates that the remediation of such spill is likely to cost more than ten thousand dollars, the commissioner or any agent of the commissioner or an environmental professional licensed under said section 22a-133v contracted by the department shall inspect the site and confirm that such remediation is reasonable. The costs of such an inspection shall be eligible for payment under the residential underground heating oil storage tank system clean-up subaccount established under subsection (b) of section 22a-449c of the general statutes, as amended by this act.

(c) (1) A registered contractor [, or a person licensed under section 22a-454 of the general statutes, who is engaged to perform remediation of a spill associated with an underground storage tank system, as defined in section 22a-449a of the general statutes, used in connection with residential real property comprised of four residential units or fewer may apply] shall submit to the Underground Storage Tank Petroleum Clean-up Account Review Board established under section 22a-449d, as amended by this act, for a disbursement from the [not less than two million dollars set aside from the proceeds of bonds authorized under subdivision (1) of subsection (b) of sections 13 and 32 of public act 99-242* for the costs of such remediation provided the owner of such tank system shall pay the first five hundred dollars of such costs and the board may approve payment of the balance of such costs up to fifty thousand dollars] residential underground heating oil storage tank system clean-up subaccount, all reasonable costs for work performed pursuant to a contract with the owner for the remediation of a residential underground heating oil storage tank system for the purpose of providing payment for the costs of such remediation. An owner of a residential underground heating oil storage tank system shall not be responsible to the registered contractor or any subcontractor of the registered contractor for any costs that are eligible for payment from the residential underground heating oil storage tank system clean-up subaccount over five hundred dollars. The registered contractor or any subcontractor shall not bill the owner for any costs eligible for payment from said subaccount over five hundred dollars unless the contractor or subcontractor enters into a separate written contract with the owner, on a form prescribed by the commissioner, authorizing the contractor or subcontractor to bill the owner more than five hundred dollars and such separate contract gives the owner the right to cancel such contract up to three days after entering into it. Such owner shall provide to the review board a statement confirming [whether the applicant] the registered contractor has been engaged by such owner to remove or to replace such residential underground heating oil storage tank system and perform the remediation and shall execute an instrument which provides for payment to said account of any amounts realized by the owner, after any costs of litigation or attorney's fees have been paid, from a judgment or settlement regarding any claim for the costs of such remediation made against an insurance policy or any party. [The contractor shall submit documentation, satisfactory to the board, of any costs associated with such remediation.] In any service contract entered into between a registered contractor and an owner for the remediation of a residential underground heating oil storage tank system, the registered contractor shall clearly identify all costs, including markup costs, that are not or may not be eligible for payment from said subaccount.

(2) The registered contractor shall submit documentation, satisfactory to the review board, of any costs associated with such remediation. The review board may deny remediation costs of the registered contractor that the review board determines are unreasonable based on the guidelines established pursuant to subsection (c) of section 22a-449d, as amended by this act, on and after the date the review board establishes such guidelines, and may deny remediation costs (A) in excess of five thousand dollars if the Department of Environmental Protection was not notified in accordance with the provisions of subsection (b) of this section, and (B) in excess of ten thousand dollars if the site was not inspected in accordance with the provisions of subsection (b) of this section. The review board shall deny any such costs in excess of fifty thousand dollars unless the commissioner determines such additional costs are warranted to protect public health and the environment. If a registered contractor fails to submit to the review board documentation of costs associated with such remediation that may be eligible for payment from the residential underground heating oil storage tank system clean-up subaccount or if the registered contractor submits documentation of such costs but the board denies payment of such costs, the registered contractor shall be liable for such costs and shall have no cause of action against the owner of the underground petroleum storage tank.

(3) A copy of the review board's decision shall be sent to the Commissioner of Environmental Protection and to the registered contractor by certified mail, return receipt requested. The commissioner or any contractor aggrieved by a decision of the review board may, not more than twenty days after the date the decision was issued, request a hearing before the review board in accordance with chapter 54. After such hearing, the board shall consider the information submitted to it and affirm or modify its decision on the reimbursement. A copy of the affirmed or modified decision shall be sent to the commissioner and any contractor by certified mail, return receipt requested.

Sec. 7. (NEW) (a) Any remediation of contaminated soil or groundwater the cost of which is to be paid out of the subaccount established under subsection (b) of section 22a-449c of the general statutes, as amended by this act, shall be performed by or under the direct onsite supervision of a registered contractor, as defined in section 6 of this act, and shall be performed in accordance with regulations adopted by the commissioner pursuant to section 22a-133k of the general statutes that establish direct exposure criteria for soil, pollutant mobility criteria for soil and groundwater protection criteria for GA and GAA areas. If the replacement of any such residential underground heating oil storage tank system performed pursuant to the provisions of this section involves installation of an underground petroleum storage tank, such tank shall conform to any standards which apply to new underground petroleum storage tanks.

(b) The commissioner shall adopt regulations in accordance with the provisions of chapter 54 of the general statutes setting forth the standards and criteria for residential underground heating oil storage tank systems which may include, but not be limited to, (1) standards for criteria for the design, installation, operation, maintenance and monitoring of such facilities, (2) the life expectancy after which such systems must be removed and replaced, and (3) standards and procedures for the granting of a waiver for the installation of a new residential underground heating oil storage tank system or the replacement of an existing system.

Sec. 8. This act shall take effect from its passage.

Approved June 1, 2000