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Proposed Excess Liability Trust Fund Rule Amendments Significantly Impact Eligibility

10.01.2009

On July 29, 2009, the Indiana Department of Environmental Management (“IDEM”) published a Second Notice of Comment Period, LSA #08-684, entitled “Development of Amendments to Rules Concerning the Underground Storage Tank Excess Liability Trust Fund” (“ELTF”). The July 29, 2009 Second Notice is available here. The July 29, 2009 Second Notice provides proposed amendments to the ELTF rules set forth under 328 IAC 1. The proposed ELTF rule amendments include several significant revisions, including:

  • Addition, amendment, and/or modification of definitions set forth under 328 IAC 1-1 including the terms: “closure,” “fund qualifying occurrence,” “repeated release,” “system,” “deductible amount,” and “substantial compliance;”
  • Amendment of ELTF access requirements set forth under 328 IAC 1-3-1 including the addition of specific actions and activities that are not reimbursable by the ELTF;
  • Addition of 328 IAC 1-3-1.2 regarding the electronic submission of information to the ELTF;
    Amendment of ELTF eligibility requirements set forth under 328 IAC 1-3-3(a)(1) including the addition of a requirement that an initial site characterization be completed and submitted to the IDEM within 60 days of release reporting and the addition of a schedule of five percent ELTF eligibility deductions for failure to satisfy this requirement;
  • Amendment of ELTF eligibility requirements set forth under 328 IAC 1-3-3(a)(2) including: (1) a revision providing that substantial compliance with the Indiana spill rule must be accomplished at the time a release is “suspected” instead of “discovered” as currently provided in the ELTF rules; (2) the addition of a requirement that an owner and operator is not in substantial compliance with the Indiana spill rule if the owner and operator does not request in a certified letter within 45 days of granting access to a third party, the results of a third party environmental investigation that identifies a potential release; and (3) the addition of a schedule of five percent ELTF eligibility deductions for failure to satisfy the 45-day written request requirement;
  • Amendment of ELTF reimbursable costs set forth under 328 IAC 1-3-5 including substantial revision of the schedule of reimbursable cost ranges and maximum amounts set forth under 328 IAC 1-3-5(e); and
  • Amendment of the reimbursement application requirements set forth under 328 IAC 1-5-1 including the addition of a provision limiting the number of times a claim may be re-submitted.

According to the July 29, 2009 Second Notice of Comment Period, comments were due to the IDEM by August 28, 2009. Although the comment period has closed, opportunities remain open to be involved in the ELTF rule amendment process. First, IDEM has assembled an external workgroup of interested stakeholders to assist in the ELTF rule revision process. In order to submit comments to the workgroup, attend workgroup meetings, provide suggestions related to the workgroup process, or for other information regarding the proposed ELTF rule amendments, Ms. Lynn West, IDEM, Office of Legal Counsel (“OLC”) may be contacted at (317) 232-3593 or (800) 451-6027. Second, comments may be submitted during public hearings related to the Indiana Underground Storage Tank Financial Assurance Board’s (“FAB”) consideration of the proposed rule amendments. A public hearing before the FAB regarding the proposed ELTF rule amendments was scheduled for October 21, 2009. However, according to IDEM, OLC staff, the October 21, 2009 public hearing has been cancelled and will likely be rescheduled for January or February 2010.

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