319.131. Owners of tanks containing petroleum products may elect to participate--advisory committee, members, duties, applications, content, standards and tests--financial responsibility--deductible-- - Missouri Statutes

Owners of tanks containing petroleum products may elect toparticipate--advisory committee, members, duties, applications,content, standards and tests--financialresponsibility--deductible--fund not liability ofstate--ineligible sites--tanks owned by certain schooldistricts--damages covered, limitation--defense of third-partyclaims.

319.131. 1. Any owner or operator of one or more petroleum storagetanks may elect to participate in the petroleum storage tank insurance fundto meet the financial responsibility requirements of sections 319.114 and414.036, RSMo. Subject to regulations of the board of trustees, owners oroperators may elect to continue their participation in the fund subsequentto the transfer of their property to another party. Current or formerrefinery sites or petroleum pipeline or marine terminals are not eligiblefor participation in the fund.

2. The board shall establish an advisory committee which shall becomposed of insurers, owners and operators of petroleum storage tanks, andother interested parties. The advisory committee established pursuant tothis subsection shall report to the board. The committee shall monitor thefund and recommend statutory and administrative changes as may be necessaryto assure efficient operation of the fund. The committee, in consultationwith the board and the department of insurance, financial institutions andprofessional registration, shall report every two years to the generalassembly on the availability and affordability of the private insurancemarket as a viable method of meeting the financial responsibilitiesrequired by state and federal law in lieu of the petroleum storage tankinsurance fund.

3. (1) Except as otherwise provided by this section, any personseeking to participate in the insurance fund shall submit an application tothe board of trustees and shall certify that the petroleum tanks meet orexceed and are in compliance with all technical standards established bythe United States Environmental Protection Agency, except those standardsand regulations pertaining to spill prevention control and counter-measureplans, and rules established by the Missouri department of naturalresources and the Missouri department of agriculture. The applicant shallsubmit proof that the applicant has a reasonable assurance of the tank'sintegrity. Proof of tank integrity may include but not be limited to anyone of the following: tank tightness test, electronic leak detection,monitoring wells, daily inventory reconciliation, vapor test or any othertest that may be approved by the director of the department of naturalresources or the director of the department of agriculture. The applicantshall submit evidence that the applicant can meet all applicable financialresponsibility requirements of this section.

(2) A creditor, specifically a person who, without participating inand not otherwise primarily engaged in petroleum production, refining, andmarketing, holds indicia of ownership primarily for the purpose of, or inconnection with, securing payment or performance of a loan or to protect asecurity interest in or lien on the tank or the property where the tank islocated, or serves as trustee or fiduciary upon transfer or receipt of theproperty, may be a successor in interest to a debtor pursuant to thissection, provided that the creditor gives notice of the interest to theinsurance fund by certified mail, return receipt requested. Part of suchnotice shall include a copy of the lien, including but not limited to asecurity agreement or a deed of trust as appropriate to the property. Theterm "successor in interest" as provided in this section means a creditorto the debtor who had qualified real property in the insurance fund priorto the transfer of title to the creditor, and the term is limited to accessto the insurance fund. The creditor may cure any of the debtor's defaultsin payments required by the insurance fund, provided the specific realproperty originally qualified pursuant to this section. The creditor, orthe creditor's subsidiary or affiliate, who forecloses or otherwise obtainslegal title to such specific real property held as collateral for loans,guarantees or other credit, and which includes the debtor's abovegroundstorage tanks or underground storage tanks, or both such tanks shallprovide notice to the fund of any transfer of creditor to subsidiary oraffiliate. Liability pursuant to sections 319.100 to 319.137 shall beconfined to such creditor or such creditor's subsidiary or affiliate. Acreditor shall apply for a transfer of coverage and shall present evidenceindicating a lien, contractual right, or operation of law permitting suchtransfer, and may utilize the creditor's affiliate or subsidiary to holdlegal title to the specific real property taken in satisfaction of debts.Creditors may be listed as insured or additional insured on the insurancefund, and not merely as mortgagees, and may assign or otherwise transferthe debtor's rights in the insurance fund to the creditor's affiliate orsubsidiary, notwithstanding any limitations in the insurance fund onassignments or transfer of the debtor's rights.

(3) Any person participating in the fund shall annually submit anamount established pursuant to subsection 1 of section 319.133 which shallbe deposited to the credit of the petroleum storage tank insurance fund.

4. Any person making a claim pursuant to this section and sections319.129 and 319.133 shall be liable for the first ten thousand dollars ofthe cost of cleanup associated with a release from a petroleum storage tankwithout reimbursement from the fund. The petroleum storage tank insurancefund shall assume all costs, except as provided in subsection 5 of thissection, which are greater than ten thousand dollars but less than onemillion dollars per occurrence or two million dollars aggregate per year.The liability of the petroleum storage tank insurance fund is not theliability of the state of Missouri. The provisions of sections 319.100 to319.137 shall not be construed to broaden the liability of the state ofMissouri beyond the provisions of sections 537.600 to 537.610, RSMo, nor toabolish or waive any defense which might otherwise be available to thestate or to any person. The presence of existing contamination at a sitewhere a person is seeking insurance in accordance with this section shallnot affect that person's ability to participate in this program, providedthe person meets all other requirements of this section. Any person whoqualifies pursuant to sections 319.100 to 319.137 and who has requestedapproval of a project for remediation from the fund, which request has notyet been decided upon shall annually be sent a status report including anestimate of when the project may expect to be funded and other pertinentinformation regarding the request.

5. The fund shall provide coverage for third-party claims involvingproperty damage or bodily injury caused by leaking petroleum storage tankswhose owner or operator is participating in the fund at the time therelease occurs or is discovered. Coverage for third-party property damageor bodily injury shall be in addition to the coverage described insubsection 4 of this section but the total liability of the petroleumstorage tank insurance fund for all cleanup costs, property damage, andbodily injury shall not exceed one million dollars per occurrence or twomillion dollars aggregate per year. The fund shall not compensate an owneror operator for repair of damages to property beyond that required tocontain and clean up a release of a regulated substance or compensate anowner or operator or any third party for loss or damage to other propertyowned or belonging to the owner or operator, or for any loss or damage ofan intangible nature, including, but not limited to, loss or interruptionof business, pain and suffering of any person, lost income, mentaldistress, loss of use of any benefit, or punitive damages.

6. The fund shall, within limits specified in this section, assumecosts of third-party claims and cleanup of contamination caused by releasesfrom petroleum storage tanks. The fund shall provide the defense ofeligible third-party claims including the negotiations of any settlement.

7. Nothing contained in sections 319.100 to 319.137 shall beconstrued to abrogate or limit any right, remedy, causes of action, orclaim by any person sustaining personal injury or property damage as aresult of any release from any type of petroleum storage tank, nor shallanything contained in sections 319.100 to 319.137 be construed to abrogateor limit any liability of any person in any way responsible for any releasefrom a petroleum storage tank or any damages for personal injury orproperty damages caused by such a release.

8. (1) The fund shall provide moneys for cleanup of contaminationcaused by releases from petroleum storage tanks, the owner or operator ofwhich is participating in the fund or the owner or operator of which hasmade application for participation in the fund by December 31, 1997,regardless of when such release occurred, provided that those persons whohave made application are ultimately accepted into the fund. Applicantsshall not be eligible for fund benefits until they are accepted into thefund. This section shall not preclude the owner or operator of petroleumstorage tanks coming into service after December 31, 1997, from makingapplication to and participating in the petroleum storage tank insurancefund.

(2) Notwithstanding the provisions of section 319.100 and theprovisions of subdivision (1) of this section, the fund shall providemoneys for cleanup of contamination caused by releases from petroleumstorage tanks owned by school districts all or part of which are located ina county of the third classification without a township form of governmentand having a population of more than ten thousand seven hundred but lessthan eleven thousand inhabitants, and which make application forparticipation in the fund by August 28, 1999, regardless of when suchrelease occurred. Applicants shall not be eligible for fund benefits untilthey are accepted into the fund, and costs incurred prior to that dateshall not be eligible expenses.

9. (1) The fund shall provide moneys for cleanup of contaminationcaused by releases from underground storage tanks which contained petroleumand which have been taken out of use prior to December 31, 1997, providedsuch sites have been documented by or reported to the department of naturalresources prior to December 31, 1997, and provided further that the fundshall make no reimbursements for expenses incurred prior to August 28,1995. The fund shall also provide moneys for cleanup of contaminationcaused by releases from underground storage tanks which contained petroleumand which have been taken out of use prior to December 31, 1985, if thecurrent owner of the real property where the tanks are located purchasedsuch property before December 31, 1985, provided such sites are reported tothe fund on or before June 30, 2000. The fund shall make no payment forexpenses incurred at such sites prior to August 28, 1999. Nothing insections 319.100 to 319.137 shall affect the validity of any undergroundstorage tank fund insurance policy in effect on August 28, 1996.

(2) An owner or operator who submits a request as provided in thissubsection is not required to bid the costs and expenses associated withprofessional environmental engineering services. The board may disapproveall or part of the costs and expenses associated with the environmentalengineering services if the costs are excessive based upon comparableservice costs or current market value of similar services. The owner oroperator shall solicit bids for actual remediation and cleanup work asprovided by rules of the board.

(3) After December 31, 2017, the current legal owner of the siteshall be the responsible party for corrective action, pursuant to section319.109, of any releases from underground storage tanks described in thissubsection, provided the creditor, who is a successor in interest asprovided in subdivision (2) of subsection 3 of this section, is subject tono greater or lesser responsibility for corrective action than suchsuccessor in interest would have on or before December 31, 2017. Nothingin this subdivision shall in any way be construed to alter, alleviate, ormodify in any manner any liabilities that the fund has to pay for incleaning up the site.

10. (1) The fund shall provide moneys for cleanup of contaminationcaused by releases from aboveground storage tanks utilized for the sale ofproducts regulated by chapter 414, RSMo, which have been taken out of useprior to December 31, 1997, provided such sites have been documented by orreported to the department of natural resources prior to December 31, 1997,and provided further that the fund shall make no reimbursements forexpenses incurred prior to July 1, 1997.

(2) After December 31, 2017, the current legal owner of the siteshall be the responsible party for corrective action of any releases fromaboveground storage tanks described in this subsection, provided thecreditor, who is a successor in interest as provided in subdivision (2) ofsubsection 3 of this section, is subject to no greater or lesserresponsibility for corrective action than such successor in interest wouldhave on or before December 31, 2017. Nothing in this subdivision shall inany way be construed to alter, alleviate, or modify in any manner anyliabilities that the fund has to pay for in cleaning up the site.

(L. 1989 H.B. 77, et al. § 12 subsecs. 5 to 9, A.L. 1991 S.B. 91 & 317, A.L. 1994 H.B. 1156, A.L. 1995 H.B. 251, A.L. 1996 S.B. 708, A.L. 1998 H.B. 1148 merged with S.B. 852 & 913, A.L. 1999 H.B. 603, et al., A.L. 2001 H.B. 453, A.L. 2008 S.B. 907)