319.132. Board of trustees to assess surcharge on petroleum products per transport load, exceptions, deposit in fund, refund procedure--rate of surcharge--suspension of fees, when. - Missouri Statutes

Board of trustees to assess surcharge on petroleum products pertransport load, exceptions, deposit in fund, refund procedure--rateof surcharge--suspension of fees, when.

319.132. 1. The board shall assess a surcharge on all petroleumproducts within this state which are enumerated by section 414.032, RSMo.Except as specified by this section, such surcharge shall be administeredpursuant to the provisions of subsections 1 to 3 of section 414.102, RSMo,and subsections 1 and 2 of section 414.152, RSMo. Such surcharge shall beimposed upon such petroleum products within this state and shall beassessed on each transport load, or the equivalent of an average transportload if moved by other means. All revenue generated by the assessment ofsuch surcharges shall be deposited to the credit of the special trust fundknown as the petroleum storage tank insurance fund.

2. Any person who claims to have paid the surcharge in error may filea claim for a refund with the board within three years of the payment. Theclaim shall be in writing and signed by the person or the person's legalrepresentative. The board's decision on the claim shall be in writing andmay be delivered to the person by first class mail. Any person aggrievedby the board's decision may seek judicial review by bringing an actionagainst the board in the circuit court of Cole County pursuant to section536.150, RSMo, no later than sixty days following the date the board'sdecision was mailed. The department of revenue shall not be a party tosuch proceeding.

3. The board shall assess and annually reassess the financialsoundness of the petroleum storage tank insurance fund.

4. (1) The board shall set, in a public meeting with an opportunityfor public comment, the rate of the surcharge that is to be assessed oneach such transport load or equivalent but such rate shall be no more thansixty dollars per transport load or an equivalent thereof. A transportload shall be deemed to be eight thousand gallons.

(2) The board may increase or decrease the surcharge, up to a maximumof sixty dollars, only after giving at least sixty days' notice of itsintention to alter the surcharge; provided however, the board shall notincrease the surcharge by more than fifteen dollars in any year. The boardmust coordinate its actions with the department of revenue to allowadequate time for implementation of the surcharge change.

(3) If the fund's cash balance on the first day of any month exceedsthe sum of its liabilities, plus ten percent, the transport load fee shallautomatically revert to twenty-five dollars per transport load on the firstday of the second month following this event.

(4) Moneys generated by this surcharge shall not be used for anypurposes other than those outlined in sections 319.129 through 319.133 andsection 319.138. Nothing in this subdivision shall limit the board'sauthority to contract with the department of natural resources pursuant tosection 319.129 to carry out the purposes of the fund as determined by theboard.

5. The board shall ensure that the fund retain a balance of at leasttwelve million dollars but not more than one hundred million dollars. If,at the end of any quarter, the fund balance is above one hundred milliondollars, the treasurer shall notify the board thereof. The board shallsuspend the collection of fees pursuant to this section beginning on thefirst day of the first quarter following the receipt of notice. If, at theend of any quarter, the fund balance is below twenty million dollars, thetreasurer shall notify the board thereof. The board shall reinstate thecollection of fees pursuant to this section beginning on the first day ofthe first quarter following the receipt of notice.

6. Railroad corporations as defined in section 388.010, RSMo, andairline companies as defined in section 155.010, RSMo, shall not be subjectto the load fee described in this chapter nor permitted to participate inor make claims against the petroleum storage tank insurance fund created insection 319.129.

(L. 1991 S.B. 91 & 317, A.L. 1995 H.B. 251, A.L. 1996 S.B. 708, A.L. 1998 S.B. 619, A.L. 2001 H.B. 453)

(1995) Where an underground storage tank insurance fund is financed by fees imposed upon "persons" who first receive petroleum products within Missouri and not to "persons" who operate underground storage tanks, the application of section's surcharge violates the commerce clause of the United States Constitution. Surcharge is a fee and not a tax. Reidy Terminal, Inc. v. Director of Revenue, 898 S.W.2d 540 (Mo. en banc).