A.R.S. tit. 49 ch. 6 — Arizona Revised Statutes Title 49 Chapter 6 — Underground Storage Tank Regulation

49-1001. Definitions In this chapter, unless the context otherwise requires: 1. "Being used" means not having been taken out of operation. 2. "Closure" means the removal of an underground storage tank from operation. 3. "Corrective actions" means those actions that are prescribed pursuant to section 49-1005. 4. "Designated representative" means a person to whom an owner or an operator, or both, assign in writing any right, title or interest that the owner or operator, or both, may have in and to the proceeds of a reimbursement for a corrective action made under article 3 of this chapter. 5. "Energy policy act" means the underground storage tank compliance act, title XV, subtitle B of the energy policy act of 2005 (P.L. 109-58; 119 Stat. 1092), as amended. 6. "Fiduciary" means: (a) A trust company or bank certified or authorized to engage in the trust business pursuant to title 6, chapter 8, article 1. (b) Any person appointed by a court or testamentary act to act as personal representative, executor, trustee, administrator, guardian, conservator, receiver or trustee in bankruptcy. (c) Any person acting as a trustee of a deed of trust pursuant to section 33-803. (d) Any person acting as a trustee pursuant to title 14, chapter 7. (e) Any person acting pursuant to and subject to fiduciary obligations under the employee retirement income security act of 1974 (29 United States Code sections 1101 through 1114). 7. "Guarantor" means a person, other than an owner or operator, who provides evidence of financial responsibility for an owner or operator pursuant to this chapter. 8. "Motor fuel" means petroleum or a petroleum based substance that is motor gasoline, aviation gasoline, number 1 or number 2 diesel fuel or any grade of oxygenated gasoline typically used in the operation of a motor engine. 9. "New piping component" means any underground pipe or combination of pipes that contains and conveys a regulated substance between a tank and a motor fuel dispenser, including any valve, elbow, connector or joint that is added to an underground storage tank on or after January 1, 2009 and that was not originally included or installed as part of the underground storage tank. 10. "Occurrence" means an incident or accident, including continuous or repeated exposure to conditions, which results in a release from an underground storage tank. 11. "Operator" means a person in control of, or having responsibility for, the day-to-day operation of an underground storage tank. 12. "Out of operation" means having been closed in accordance with all applicable fire codes and other statutory and regulatory requirements for closure in effect on the date that closure was accomplished. 13. "Person" means an individual, trust, firm, joint stock company, corporation, joint venture, partnership, association, consortium, state, municipality, interstate body, commission, political subdivision of a state and the United States government. 14. "Petroleum" means petroleum, including crude oil or any fraction of crude oil, which is liquid at sixty degrees Fahrenheit and 14.7 pounds per square inch absolute, and petroleum based substances comprised of a complex blend of hydrocarbons derived from crude oil through processes of separation, conversion, upgrading and finishing, such as motor fuels, residual fuel oils, lubricants, jet fuels, distillate fuel oils, petroleum solvents and used oils. 15. "Political subdivision" means a county, city, town or other taxing district other than the state that is authorized to take property by eminent domain. 16. "Regulated substance" means: (a) Petroleum. (b) A substance specified in the comprehensive environmental response, compensation, and liability act of 1980 (P.L. 96-510; 94 Stat. 2767; 42 United States Code section 9601(14)) but not including a substance regulated as a hazardous waste under the hazardous and solid waste amendments of 1984 (P.L. 98-616; 98 Stat. 3221). 17. "Release" means a spill, leak, emission, discharge, escape, leach or disposal of a regulated substance from an underground storage tank into groundwater, surface water or soils. 18. "Suspected release" means any of the following: (a) The discovery by owners and operators or others of released regulated substances at the underground storage tank site or in the surrounding area. (b) Erratic behavior of regulated substance dispensing equipment, the sudden loss of a regulated substance from an underground storage tank, an unexplained presence of water in the underground storage tank or other extraordinary operating conditions that could reasonably be associated with a release from an underground storage tank and that are observed by owners and operators, unless system equipment is found to be defective but not leaking and is repaired or replaced immediately. (c) That the monitoring results from a release detection method required under 40 Code of Federal Regulations sections 280.41 and 280.42, this chapter or rules adopted pursuant to this chapter indicate that a release may have occurred unless either of the following occurs: (i) The monitoring device is found to be defective and is immediately repaired, recalibrated or replaced and additional monitoring data do not confirm the initial result. (ii) In the case of inventory control, a second month of inventory reconciliation data does not confirm the initial result. 19. "Tank" means a stationary device constructed of wood, concrete, steel, plastic or other nonearthen materials and used to contain regulated substances. 20. "Under-dispenser containment" means a secondary containment device that is beneath a motor fuel dispenser, that is connected to the underground storage tank and that is designed to be liquid tight. 21. "Underground storage tank" means a tank or combination of tanks and underground pipes and impact valves connected to tanks being used or having been used to contain regulated substances and which has at least ten percent of the total volume of the tank and underground portions of pipes connected to the tank underground. Underground storage tank does not mean any of the following: (a) A farm or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes. (b) A tank used for storing heating oil for consumptive use on the premises where stored. (c) A septic tank. (d) A pipeline facility, including gathering lines, regulated under either: (i) The natural gas pipeline safety act of 1968 (49 United States Code sections 1671 through 1686). (ii) The hazardous liquid pipeline safety act of 1979 (49 United States Code section 2001). (e) An intrastate pipeline facility regulated under a state law comparable to the provisions of law referred to in subdivision (d), item (i) or (ii) of this paragraph. (f) A surface impoundment, pit, pond or lagoon. (g) A storm water or wastewater collection system. (h) A flow-through process tank. (i) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations. (j) A storage tank situated in an underground area, such as a basement, cellar, mine working, drift, shaft or tunnel, if the storage tank is situated on or above the surface of the floor. (k) Pipes connected to any of the structures described in subdivisions (a) through (j) of this paragraph. 22. "Volunteer" means a property owner or a person other than an owner or operator that assumes responsibility for corrective actions for a release from an underground storage tank. 49-1001.01. Definition of owner; rules A. In this chapter, "owner" of an underground storage tank means a person who either: 1. Holds a legal, equitable, or possessory interest of any kind in an underground storage tank. 2. Held at the time of a release, or immediately before an underground storage tank was last operated, a legal, equitable or possessory interest of any kind in the underground storage tank. B. A person who acquires ownership or control of property where an underground storage tank is located is not the owner of the underground storage tank if either of the following applies: 1. The person, after conducting a due diligence investigation immediately prior to acquiring ownership of the property, did not know and had no reason to know that the underground storage tank was located on the property. Due diligence shall consist of performing a phase I environmental assessment of the property which meets the requirements of ASTM standard E-1527-93 or E-1528-93, or other generally accepted commercial practices or standards for due diligence performed prior to the adoption of this standard. 2. The person has not placed regulated substances in the underground storage tank and has not dispensed regulated substances from the underground storage tank. For the purposes of this paragraph, dispensing does not mean emptying the underground storage tank for purpose of closure. C. A person who holds indicia of ownership primarily to protect a security interest in either the petroleum underground storage tank or in the property on which the petroleum underground storage tank is or was located but who does not participate in the management of the underground storage tank and who is not otherwise engaged in petroleum refining or marketing is not an owner for purposes of this chapter. D. A person who holds indicia of ownership as prescribed by subsection C of this section and who acquires ownership or control of a petroleum underground storage tank through foreclosure of the property where a petroleum underground storage tank is located shall not be deemed an owner and shall not be required to investigate a release or take corrective action in response to a release if the person does all of the following: 1. Complies with the notification requirements prescribed by section 49-1002. 2. Complies with the reporting requirements prescribed by section 49-1004, subsections A and C to the extent that the information is known to the person at the time of the report. 3. Temporarily or permanently closes the petroleum underground storage tank as prescribed by section 49-1008. 4. Divests itself of the property in a reasonably prompt manner using whatever commercially reasonable means are relevant or appropriate with respect to the property, taking into consideration all of the facts and circumstances. E. A fiduciary is not an owner or operator for purposes of this chapter, except if the appointment of the fiduciary is for the purpose of avoiding liability under this chapter. This subsection does not preclude claims against assets held in an estate, a trust or any other fiduciary capacity that contains an underground storage tank in which regulated substances are placed or dispensed. Those claims may be asserted against a fiduciary in its representative capacity without regard to whether the fiduciary is personally liable, and the liability of the fiduciary is limited to the value of the estate, trust or other property that is held in a fiduciary capacity. A fiduciary may not be a fiduciary and grantor of the same fiduciary estate. F. The director may adopt rules to implement subsection E of this section. 49-1002. Notification requirements; exemptions A. Except as otherwise provided in this section, each owner of an underground storage tank shall notify the department in writing and shall specify the tank's age, size, type, location and use. B. For an underground storage tank that was taken out of operation on or before January 1, 1974, regardless of whether the tank was removed from the ground, the owner is exempt from giving notice. C. For an underground storage tank that was taken out of operation after January 1, 1974 but before November 8, 1984 and that was removed from the ground, the owner is exempt from giving notice. D. For an underground storage tank that was taken out of operation after January 1, 1974 but before November 8, 1984 and that was not removed from the ground, the owner shall specify the type and quantity of the substances that were stored in the tank immediately before it was taken out of operation. These requirements are in addition to the requirements for notice prescribed in subsection A of this section. E. For an underground storage tank that was taken out of operation after November 8, 1984 but before December 22, 1988 the director may require the owner to make reasonable efforts to specify the age, size, location and use of the tank, the type and quantity of the substances that were stored in the tank immediately before it was taken out of operation and the date of its removal from operation. F. An owner or operator who brings an underground storage tank into operation shall meet the notification requirements of this section at least thirty days before bringing the tank into operation. An owner or operator who brings a new piping component or under-dispenser containment into operation on or after January 1, 2009 shall meet the notification requirements of this section within thirty days after the new piping component or under-dispenser containment is brought into operation. G. A person who sells a tank for use as an underground storage tank shall notify the purchaser of the notice requirements of subsection F of this section and shall provide to the department documentation of the notice given. H. The notices required by this section shall be made on forms prescribed by the department. 49-1003. Detection of releases; record keeping requirements A. Until the rules adopted pursuant to subsection C are in effect, the owner and operator of an underground storage tank shall maintain a release detection system that complies with the requirements of 40 Code of Federal Regulations sections 280.40 through 280.44. B. Until the rules adopted pursuant to subsection C are in effect, the owner and operator of an underground storage tank shall maintain systematic and complete records of release detection information that complies with the requirements of 40 Code of Federal Regulations section 280.45. C. The director shall adopt rules establishing release detection requirements and release detection record keeping requirements. The rules adopted pursuant to this subsection shall be consistent with and no more stringent than the federal regulations in effect on the date on which the rules are adopted. 49-1004. Reporting requirements A. The operator and owner of an underground storage tank shall notify the department of each release or suspected release from the tank as soon as practicable but no later than twenty-four hours after the release or suspected release is detected. B. The operator of an underground storage tank shall notify the owner of each release from the tank as soon as practicable but no later than twenty-four hours after the release is detected. C. Notice by the operator and owner required by this section may be made orally or in writing but shall be followed within fourteen days by a written report to the department that a release or suspected release has been detected. The written report shall specify to the extent known at the time of the report the nature of the release or suspected release, the regulated substance released, the quantity of the release, the period of time over which the release occurred, the initial response and the corrective action taken as of the date of the report and anticipated to be taken subsequent to the date of the report. In addition, the written report shall include additional information required by rules that are consistent with federal regulations in effect on the date on which the rules are adopted. D. The director shall prescribe by rule the reporting, investigation and confirmation actions to be taken in the event of a release or suspected release of a regulated substance from an underground storage tank. Any rules adopted pursuant to this section shall be consistent with and no more stringent than federal regulations in effect on the date on which the rules are adopted. Until rules adopted pursuant to this subsection are in effect, reporting, investigation and confirmation actions shall be accomplished in a manner consistent with 40 Code of Federal Regulations sections 280.50 through 280.53. 49-1005. Corrective action A. When a release is discovered the owner and operator of an underground storage tank shall take immediate action to stop the release and to identify and mitigate any fire, explosion or vapor hazard. B. The owner or operator of an underground storage tank shall take corrective action in response to the release of regulated substances from the tank, except to the extent that this responsibility is limited by section 49-1016, subsection F or section 49-1019, subsection D. A person may take corrective action pursuant to section 49-1016, subsection C. C. Nothing in this section prevents the director from taking or requiring corrective action pursuant to any other provision of law. D. Corrective actions shall: 1. Assure the protection of public health and welfare and the environment. 2. To the extent practicable, provide for the control, management or cleanup of regulated substances so as to allow the maximum beneficial use of the water and soil of this state. 3. Be reasonable, necessary, cost-effective and technically feasible. E. Notwithstanding chapter 2, article 2 of this title, the director may approve a corrective action that may result in water quality exceeding water quality standards after completion of the corrective action, if the director finds that the corrective action meets the requirements of this section. The director's approval pursuant to this section does not affect the classification of an aquifer pursuant to section 49-224. The director shall adopt rules to implement this section. These rules shall include public notice provisions, criteria for the selection of corrective actions, including the level and extent of cleanup and the comparison of corrective action alternatives that may include plume remediation alternatives, monitoring, source control, controlled migration, physical containment and natural attenuation. F. The director shall prescribe by rule the corrective actions to be taken in the event of a release of a regulated substance from an underground storage tank. Any rules adopted pursuant to this subsection shall be consistent with and no more stringent than federal regulations in effect on the date on which the rules are adopted. The director shall adopt rules to permit a risk-based corrective action alternative. Corrective actions shall include requirements regarding: 1. Initial response measures. 2. Initial abatement measures. 3. A site check. 4. Initial site characterization. 5. Removal of free product. 6. Investigations for soil, surface water and groundwater cleanups. 7. Responses to contaminated soil, surface water and groundwater. G. Corrective actions may include the use of biostimulation with indigenous microbes and bioaugmentation using microbes that are nonpathogenic, that are nonopportunistic and that are naturally occurring. H. Until rules adopted pursuant to subsection F of this section are in effect, corrective actions shall be accomplished in a manner consistent with and no more stringent than 40 Code of Federal Regulations sections 280.60 through 280.67. 49-1006. Statement of financial responsibility A. If required by regulations adopted pursuant to 42 United States Code section 6991b(d) to establish evidence of financial responsibility, an owner and operator shall file with the department a statement of financial responsibility containing evidence that the owner and operator are financially capable of taking the actions required by this chapter. B. Evidence of financial responsibility required by this section shall be established in a manner prescribed by the director by rule. The rules adopted pursuant to this section shall be consistent with and no more stringent than the federal regulations in effect on the date on which the rules are adopted. 49-1006.01. Insurance for releases; termination; notice; coverage; assistance A. Beginning on January 1, 2016 and continuing for twenty-four months, if an owner or operator makes a claim against its insurance or an alternative financial responsibility mechanism for a release and its claim is denied or otherwise not paid, the owner or operator shall provide to the department a copy of the notice of denial or other evidence of nonpayment. B. If the insurance used to meet the financial responsibility requirements of this chapter is terminated or not renewed, the insurer shall notify the department of the termination or nonrenewal within thirty days after the date of termination or nonrenewal. The notice to the department shall state the name and address of the insured, the date of termination or nonrenewal and the address of the facility that had been insured. C. Before January 1, 2017 or on the insurance contract renewal date, whichever is earlier, an owner or operator that satisfies financial responsibility requirements through insurance shall have policy coverage that extends to one of the following: 1. The date of the most recent baseline assessment conducted pursuant to section 49-1052 or comparable site characterization as determined by the department. 2. The date of the underground storage tank system installation. 3. The earliest retroactive coverage date of the previous insurance policy or alternative financial responsibility mechanism. D. The department shall assist an owner or operator in pursuing the owner's or operator's claim against the financial responsibility mechanism and obtaining coverage for a confirmed release from an underground storage tank system that is covered by the mechanism. 49-1006.02. Insurance primacy; requirements; fund access A. For owners or operators that satisfy financial responsibility requirements through insurance, the following apply: 1. The policy that covers the underground storage tank system at the time the release is discovered shall be primary to eligibility under sections 49-1017 and 49-1054. 2. The owner or operator is not required to exhaust insurance coverage in order to be eligible under sections 49-1017 and 49-1054. 3. Except as provided in subsection C of this section, eligibility under sections 49-1017 and 49-1054 is contingent on filing a timely insurance claim under the policy and pursuing that claim until a denial is received or, after assistance from the department as prescribed in section 49-1006.01, subsection D, until the department determines that the claim has been constructively denied. 4. An owner or operator that fails to pursue an insurance claim is no longer eligible under sections 49-1017 and 49-1054. B. An owner or operator that satisfies financial responsibility requirements through insurance and that will not receive payment from its insurance provider until after the expenditure of at least fifty thousand dollars per facility as provided in an insurance policy that is in effect on April 1, 2015 or that satisfies financial responsibility requirements through an alternative financial responsibility mechanism is eligible under sections 49-1017 and 49-1054 after meeting a cost sharing obligation by payment of the first fifty thousand dollars per facility for work that is conducted on or after January 1, 2016. This eligibility is subject to the limits prescribed in section 49-1054, subsection A and is subject to the preapproval process prescribed in section 49-1051. Except as provided in subsection C of this section, eligibility pursuant to this subsection for owners or operators that meet financial responsibility requirements through insurance is contingent on providing timely notice of the release to the insurance carrier under the policy and that eligibility ends on the date that the insurer is obligated to provide payment under the policy. C. An owner or operator that satisfies financial responsibility requirements through insurance and that had a release reported between July 1, 2006 and December 31, 2015, that requires additional corrective action is eligible under sections 49-1017 and 49-1054 subject to the preapproval process prescribed in section 49-1051 without filing a timely claim against its insurance carrier if the owner or operator was in compliance with financial responsibility requirements at the time of the release. The maximum amount eligible for reimbursement under this subsection is five hundred thousand dollars per facility after meeting a cost sharing obligation by payment of the first fifty thousand dollars per facility for work conducted on or after January 1, 2016 and without any reductions for payments made pursuant to Laws 2015, chapter 247, section 25, as amended by Laws 2018, chapter 299, section 2. 49-1007. Liability of guarantors A. If the owner or operator of an underground storage tank files for protection under the federal bankruptcy laws and with reasonable diligence jurisdiction in a state court or the federal courts cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided pursuant to section 49-1006 may be asserted directly against the guarantor. In the case of an action pursuant to this section, the guarantor may invoke all rights and defenses which would have been available to the owner or operator against the claimant if an action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator. B. The total liability of any guarantor is limited to the aggregate amount which the guarantor provides to the owner or operator as evidence of financial responsibility and which the owner or operator provides to the department pursuant to section 49-1006. C. Nothing in this section shall be construed to limit any other state or federal statutory, contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of a guarantor for bad faith either in negotiating or in failing to negotiate the settlement of a claim. D. Nothing in this section shall be construed to diminish the liability of a person under the comprehensive environmental response, compensation, and liability act of 1980 (P.L. 96-510; 94 Stat. 2769; 42 United States Code sections 9607 or 9611) or other applicable law. 49-1008. Closure The temporary closure, permanent closure and change in service of an underground storage tank shall be accomplished in a safe and secure manner which prevents releases of regulated substances. The director shall prescribe by rule standards for these activities. Any rules adopted pursuant to this section shall be consistent with the federal regulations in effect on the date on which the rules are adopted. Until the rules adopted pursuant to this section are in effect, a temporary closure, permanent closure or change in service shall be accomplished in a manner consistent with 40 Code of Federal Regulations parts 280.70 through 280.74. 49-1009. Tank performance standards A. A person shall not install an underground storage tank unless the underground storage tank meets all of the following requirements: 1. It is designed to prevent releases due to corrosion or structural failure for the operational life of the tank. 2. It is cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material or designed in a manner to prevent the release of a regulated substance. 3. The material used in the construction or lining of the tank is compatible with the substance to be stored. B. A person shall not install an underground storage tank unless the underground storage tank meets the secondary containment performance standards for new underground storage tank systems prescribed in 40 Code of Federal Regulations section 280.20 as in effect on January 1, 2020 and release detection requirements for interstitial monitoring prescribed in 40 Code of Federal Regulations section 280.43(g) as in effect on January 1, 2020. C. A person shall not install a new piping component that is fifty percent or more of the total linear footage of all connected piping of the underground storage tank unless all connected piping of the underground storage tank that conveys a regulated substance under pressure is brought into compliance with the secondary containment performance standards for new underground storage tank systems prescribed in 40 Code of Federal Regulations section 280.20 as in effect on January 1, 2020 and release detection requirements for interstitial monitoring prescribed in 40 Code of Federal Regulations section 280.43(g) as in effect on January 1, 2020. D. An owner or operator who installs or replaces a dispenser system that connects to an underground storage tank shall install under-dispenser containment. The under-dispenser containment shall meet the performance standards for new underground storage tank systems prescribed in 40 Code of Federal Regulations section 280.20(f) as in effect on January 1, 2020. E. The owner and operator of an underground storage tank shall use an underground storage tank, a new piping component, under-dispenser containment and any secondary containment material that is made of or lined with materials that are compatible with the regulated substance stored in or dispensed from the underground storage tank. F. The director may adopt rules specifying design, construction, installation, performance and compatibility standards for underground storage tanks. The rules adopted pursuant to this subsection shall be consistent with and not more stringent than federal regulations in effect on the date on which the rules are adopted. G. The director may require an owner and operator of an underground storage tank to perform or cause to be performed a tank test to determine compliance with the standards established pursuant to this section. 49-1010. Preemption of local regulation; delegation of administrative authority A. The provisions of this chapter and the rules which implement this chapter, as they relate to the identification, prevention and remediation of releases of regulated substances from underground storage tanks are of statewide concern and shall not be subject to further local regulation. B. The director, by intergovernmental agreement or otherwise, may delegate to other departments or agencies and to a city, town or county the authority to administer the provisions of and enforce all or any part of this chapter or the rules adopted pursuant to this chapter. 49-1011. Right to inspect records, tanks and equipment A. For the purposes of developing rules, conducting studies or enforcing the provisions of this chapter, an owner or operator of an underground storage tank shall, on request of the director: 1. Furnish to the department information relating to the tank and its associated equipment and contents. 2. Permit the director to conduct monitoring and testing of tanks or surrounding soils, air, surface water or groundwater. 3. Permit the director to inspect and copy all records relating to tanks. 4. Permit the director to inspect and obtain samples of regulated substances contained in tanks. B. The director shall conduct all inspections permitted pursuant to subsection A at a reasonable time and complete these inspections with reasonable promptness. 49-1012. Confidentiality of records A. Records or other information furnished to or obtained by the director concerning regulated substances are available to the public, except that any records and information which relate to the trade secrets, processes, operations, style of work or apparatus or confidential statistical data, amount or source of any income, profits, losses or expenditures of any person are only for the confidential use of the department in the administration of this chapter unless the owner or operator expressly agrees to their publication or availability to the public. This section does not prohibit the appropriate governmental agency from publishing quantitative and qualitative statistics pertaining to the storage of regulated substances. Notwithstanding provisions to the contrary in this section, information regarding the nature and quality of releases from underground storage tanks otherwise reportable pursuant to this chapter shall be available to the public. B. This section does not prohibit the department from providing confidential information to a duly authorized congressional committee or the United States environmental protection agency if the information is treated as prescribed by 40 Code of Federal Regulations part 2. 49-1013. Enforcement and penalties A. If the director determines that a person is in violation of this chapter or the rules adopted pursuant to this chapter the director may issue an order requiring compliance within a reasonable time. A compliance order becomes final thirty days after the order is served unless within thirty days of service the person named on the order requests a hearing. A hearing shall be conducted pursuant to title 41, chapter 6, article 10. A compliance order that is the subject of a hearing as prescribed by this section becomes final and subject to appeal on the decision of the director to uphold the compliance order. Except as provided in section 41-1092.08, subsection H, the director's final decision may be appealed by any party to the superior court pursuant to title 12, chapter 7, article 6. A person becomes the subject of an enforcement proceeding pursuant to this chapter when a compliance order against that person becomes final. B. If the director issues a stop use order pursuant to section 49-1023, the owner or operator may request a hearing within thirty days after the issuance of the stop use order. A hearing shall be conducted pursuant to title 41, chapter 6, article 10. Except as provided in section 41-1092.08, subsection H, the director's final decision may be appealed by the owner or operator to the superior court pursuant to title 12, chapter 7, article 6. C. If a person fails to comply with a final order under this section within the time specified in the order, the person is subject to a civil penalty of not to exceed twenty-five thousand dollars for each day of continued noncompliance. D. An owner who fails to notify or submits false information pursuant to section 49-1002 is subject to a civil penalty of not to exceed ten thousand dollars for each underground storage tank for which notification is not given or false information is submitted. E. An owner or operator of an underground storage tank who fails to comply with any of the requirements or standards of this chapter or who fails to comply with a stop use order is subject to a civil penalty of not to exceed ten thousand dollars for each underground storage tank for each day of violation. F. A product deliverer as defined in section 49-1023 who fails to comply with the requirements of section 49-1023, subsection A is subject to a civil penalty of not to exceed ten thousand dollars for each underground storage tank for each violation. G. The penalties provided for in this section shall not be cumulated with any penalties sought and obtained by the department or the United States pursuant to title VI of the hazardous and solid waste amendments of 1984 (P.L. 98-616; 98 Stat. 3221). H. The director may file an action in the superior court to enforce this chapter and to collect penalties for violations of this chapter. The director may seek all appropriate relief including temporary and permanent injunctions. I. All monies collected under the penalty provisions of this section shall be deposited in the state general fund. 49-1014. Rules; policies; guidelines A. The director shall adopt rules pursuant to title 41, chapter 6 necessary to provide procedures for the administration of this chapter and to cause the program for the regulation of underground storage tanks established by this chapter to be approved by the administrator of the environmental protection agency pursuant to 42 United States Code section 6991c. B. The director may establish policies and guidelines for the administration of this chapter, subject to the following: 1. If a substantive policy statement as defined in section 41-1001 or a guideline is issued by the director, the director shall provide written notice to persons regulated by this chapter before the effective date of a policy or guideline that affects the substantive rights of owners and operators or other parties regulated under the underground storage tank program. The written notice shall set forth the effective date of the policy or guideline. The policy or guideline shall not be retroactive or applied retroactively except as specifically authorized by law or by the agreement of the department and the person who is regulated by this chapter. 2. The department shall not base a determination of compliance with the requirements of this chapter in whole or in part on a policy or guideline that is not specifically authorized by statute or rule. 49-1015. Underground storage tank revolving fund; use; purpose A. The underground storage tank revolving fund is established and shall be administered by the director. Monies in the fund are exempt from lapsing under section 35-190. B. The fund consists of monies appropriated by the legislature, underground storage tank tax revenues collected and distributed pursuant to section 49-1036, monies obtained from the fees imposed by this chapter and the rules adopted under this chapter and monies reimbursed to the fund by the department. On notice from the director, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. C. Monies from the fund may be used for the following: 1. To provide state matching monies and to meet other obligations as prescribed by section 9003(h)(7)(B) of the solid waste disposal act (42 United States Code section 6991b(h)(7)(B)). 2. For all the reasonable and necessary costs incurred in taking corrective actions pursuant to section 49-1017 and noncorrective actions pursuant to section 49-1017.02. 3. For the costs of recovering the expenses of corrective actions pursuant to section 49-1017 and noncorrective actions pursuant to section 49-1017.02. 4. To provide reimbursement for eligible costs. 5. For the costs incurred in administering the regulatory requirements of this chapter. 6. To reimburse the department for the reasonable and necessary costs incurred by the department in administering the corrective action requirements of this chapter. 7. To reimburse the department for the reasonable and necessary costs incurred by the department in administering the underground storage tank site improvement program. 8. To reimburse the department for the reasonable and necessary costs incurred by the department in administering the fund. The department may not pay from the fund any costs, payments or other expenses that result from a contract awarded pursuant to this section unless the contract includes performance standards and contractual penalties for nonperformance or inadequate performance under the contract. D. The director shall reimburse the fund for any corrective action costs or noncorrective action costs that are paid out of the fund and that are subsequently recovered by the department. E. Monies in the fund may not be used to implement the water quality assurance revolving fund program pursuant to chapter 2, article 5 of this title. 49-1016. Responsibilities of owners and operators A. Unless specifically indicated otherwise, the responsibilities of this chapter are imposed on the owner and the operator of an underground storage tank. If the owner and operator of an underground storage tank are separate persons, only one person is required to discharge any specific responsibility. Both persons are liable in the event of noncompliance. B. The liabilities and responsibilities for releases of regulated substances imposed pursuant to this chapter shall apply even if the conduct that resulted in the release or the release itself occurred before August 13, 1986. C. If a person comes into the possession or control of property where an underground storage tank is located and the person is not the owner as defined in section 49-1001.01, the person shall: 1. Notify the department in writing specifying the tank's location, size and use, if known, if the owner has failed to do so. 2. Notify the department of each release or suspected release from the tank as soon as practicable if the owner or operator has failed to do so. 3. If the person voluntarily undertakes to remove or otherwise close the tank, do so in a safe and secure manner which prevents releases of regulated substances and in accordance with standards prescribed by the director pursuant to section 49-1008, except for the requirement to perform corrective action. 4. If the person voluntarily undertakes corrective action, take corrective action in a manner consistent with federal regulations and rules adopted by the director pursuant to section 49-1005. D. A person acting under subsection C of this section shall not incur the liability of an owner. E. No agreement or conveyance shall be effective to transfer the obligations imposed by this chapter from the owner or operator of any underground storage tank, or from any person who may be liable for a release or threat of release under this chapter, to any other person. Nothing in this section shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this chapter nor shall it bar a cause of action that an owner or operator or any other person has or would have against any person. F. In any action brought by the department under section 49-1013, the state bears the burden of establishing that an owner or operator has violated the requirements of this chapter. An owner or operator is responsible for only the owner's or operator's contribution to any contamination that creates liability under this chapter. No party bears the burden of proving any person's contribution to the contamination in any informal or formal appeal pursuant to section 49-1017, subsection D, section 49-1019, subsection D or section 49-1091. G. If there is prima facie evidence that other identified or unidentified persons not at the owner's or operator's facility have contributed to the contamination, the owner or operator shall be responsible to take corrective action only to the extent, by area, of the owner's or operator's release. The owner or operator shall not be required to identify or to prove the contribution of any contributing persons in order to limit the owner's or operator's own liability, but the owner or operator shall provide to the department any information the owner or operator knows regarding the identity or contribution of any other contributing persons. If the owner or operator does not disclose the information prior to the owner's or operator's formal appeal of a decision by the department, upon the department's request, the administrative hearing shall be continued for no more than thirty days from the scheduled hearing date. If who contributed to the contamination cannot be determined by a preponderance of evidence, or if an allocation for some or all of the contamination cannot be established by a preponderance of evidence, the liability that is not established to be the owner's or operator's by a preponderance of the evidence shall not be allocated to the owner or operator. H. The department may issue a written interim decision or determination compelling owners and operators to allocate liability in accordance with section 49-1019, subsection D if either of the following conditions are met: 1. The owners and operators agree that no other owners or operators are liable for the contamination. 2. The contamination is from a single underground storage tank facility. 49-1017. Powers of director; corrective actions A. The director may take corrective action with respect to a release of a regulated substance that is petroleum into the environment from an underground storage tank if the director determines that action is necessary to protect human health, safety or the environment and any of the following conditions exist: 1. The department cannot locate, within ninety days or a shorter period necessary to protect human health or the environment, a person who is all of the following: (a) An owner or operator of the tank concerned. (b) Subject to the corrective action requirements of section 49-1005. (c) Financially or technically capable of properly carrying out the corrective action required by section 49-1005. If the owner or operator and the department jointly determine that the owner or operator is not financially or technically able to carry out the corrective action, the department and the owner may enter into a contract under which the department acts as manager of the corrective action on behalf of the owner or operator. The existence of a management contract with the department does not relieve the owner of any liability for costs that are not payable by the department under this chapter. 2. Corrective action costs at a facility exceed the amount of coverage required by section 49-1006 and expenditures from the underground storage tank revolving fund are necessary to ensure effective corrective action. B. In determining whether to take a corrective action pursuant to subsection A of this section, the director shall consider and make written findings regarding all of the following factors: 1. The physical and chemical characteristics of the type of petroleum released, including its toxicity, persistence and potential for migration. 2. The hydrogeologic characteristics of the site where the underground storage tank is located and the surrounding area. 3. The proximity, quality and current and future uses of nearby surface water and groundwater. 4. The potential effects of residual contamination on nearby surface water and groundwater. 5. The degree of exposure. 6. The need for financial assistance. C. If direct costs are incurred by the director for undertaking corrective action with respect to a release of a regulated substance that is petroleum, the owner and operator are liable to this state for these direct costs. Liability imposed pursuant to this subsection is strict. For the purposes of this subsection, "direct costs" means the cost of the corrective actions, investigations, enforcement and litigation except for those amounts that are not allocated to the owner or operator pursuant to subsection D of this section. D. If there is more than one responsible person, liability under this section shall be equitably allocated on a case-by-case basis according to section 49-1016, subsection F, and using the following factors as those factors are appropriate under the circumstances: 1. The duration and percentage of ownership or operation of the underground storage tank during a release of regulated substances from the tank. 2. The amount and nature of the regulated substances released. 3. The degree of care exercised by each person with respect to the regulated substances released. 4. The ability to distinguish between the respective releases of more than one responsible person. 5. Other factors that are appropriate under the circumstances. E. The allocation of liability under this section shall be promptly determined by one or more mediators who shall be selected by the responsible persons within sixty days after the responsible persons are identified by the director. The director may select a mediator and convene a mediation on the failure of the responsible persons to select one or more mediators. The mediator shall not have a conflict of interest with the responsible persons. A mediation convened by the director shall be held within sixty days after the mediator being selected. The director shall provide notice to the responsible persons of the time and place for the mediation and the name of the mediator or mediators. This notice shall be provided at least forty-five days prior to the date scheduled for mediation. Costs of mediation shall be eligible for payment and shall be allocated to participants in the mediation in the same proportion as the costs of corrective action. Nothing in this section shall excuse the obligations of an owner or operator to take timely and adequate action in response to a release of regulated substances as required in this chapter. Nothing in this section shall diminish the right of any person to bring an action against any other person as provided in section 49-1019 for contribution or reimbursement for the reasonable costs of corrective action that person has been allocated pursuant to this section. F. The director may take a corrective action with respect to a release of a regulated substance that is not petroleum only as a remedial action subject to chapter 2, article 5 of this title, and the rules adopted pursuant to that article. If the director takes a corrective action for the release of a regulated substance that is not petroleum, all of the rights, duties and responsibilities of a person associated with the release shall be determined pursuant to that article. G. An owner, operator or other person that meets the requirements of section 49-1016, subsection C may request that the department conduct corrective action under this section. Subject to the availability of monies allocated and the priority assigned to the site pursuant to subsection B of this section, the department may conduct the corrective action. H. A request for corrective action pursuant to subsection G of this section shall be on a form provided by the department and shall contain sufficient information related to the site and the factors prescribed in subsection B of this section to allow the director to make a determination of priority for that request. 49-1017.01. Settlement authority; participation; financial information; process; payment; notice A. The director shall consider any offer by an owner or operator who is potentially liable for direct costs incurred by the director pursuant to section 49-1017, subsection C, without regard to the extent of that owner's or operator's liability, if the owner or operator is unable to pay for the direct costs. An owner or operator whose liability for direct costs arose from a criminal act is not eligible to enter into a settlement agreement pursuant to this section. An owner's or operator's decision to enter into a settlement agreement pursuant to this section is not an admission in a judicial proceeding as to the fact or extent of that owner's or operator's liability with respect to releases or threatened releases that are covered by the settlement. An owner or operator who is a party to a settlement pursuant to this section is not required to participate in allocation proceedings pursuant to section 49-1017, subsections D and E. Any settlement approved by the department does not release the owner or operator from any responsibility or duty imposed pursuant to this chapter other than liability for direct costs incurred pursuant to section 49-1017, subsection C. B. Any settlement approved by the department does not increase the liability of any other owner or operator pursuant to this chapter and does not create any liability for the department or this state. C. The director shall consider all of the following factors in considering an owner's or operator's ability to pay for the direct costs: 1. The financial resources of the owner or operator, including available financial assurance mechanisms other than the underground storage tank revolving fund. 2. The amount of coverage available to the owner or operator from the underground storage tank revolving fund for the direct costs. As a condition of settlement, the owner or operator shall apply to the underground storage tank revolving fund and any applicable grant program for coverage of the direct costs before requesting settlement pursuant to this section. 3. The owner's or operator's ability to continue in business after payment of the owner's or operator's liability for direct costs as defined in section 49-1017, subsection C. 4. Whether payment of the owner's or operator's liability for direct costs as defined in section 49-1017, subsection C would require the owner or operator to seek protection under the federal bankruptcy law or render the owner or operator insolvent. 5. The financial resources of all concerns in which the owner or operator maintains ownership, control or management. D. An owner or operator seeking settlement pursuant to subsection A of this section shall submit a letter requesting a financial hardship settlement and shall include the owner's or operator's tax returns and all schedules, financial statements, balance statements and other information concerning the owner's or operator's gross income and net worth for the five years immediately preceding the date of the application. Within ninety days after the receipt of the application, the director may require additional information to verify the owner's or operator's eligibility for settlement pursuant to subsection A of this section. The owner or operator may provide any additional information the owner or operator believes to be relevant to the application. The director shall keep confidential any financial information submitted by the owner or operator pursuant to this subsection. If the director or the attorney general disputes a claim of confidentiality, the director or the attorney general shall provide written notice that the claim is disputed to the owner or operator claiming the confidentiality. The information shall be made available to the public if the owner or operator claiming confidentiality does not file an action for declaratory relief in superior court within thirty days after receiving the notice. E. The owner or operator shall cooperate with the director in providing reasonable access and information for the director to carry out the requirements of this section as a condition of the settlement. F. If the director verifies that the owner or operator is unable to pay the direct costs incurred by the director pursuant to section 49-1017, subsection C, the director shall enter into a settlement within ninety days after receipt of the application and any other information required pursuant to this section. The director shall allow the settlement amount to be paid over a period of time that does not exceed ten years. Settlement payments over a period of time are subject to the payment of interest at the rate of six percent a year, except that payments are not subject to interest if the entire settlement amount is paid within five years. The owner or operator may file a petition with the director to modify the payment schedule on a showing of good cause that the payment schedule cannot be met. G. The director may require that notice of the terms of the settlement agreement be provided to the public to allow for comment for a period of thirty days before the department enters into a settlement agreement. Any interested person may comment on the settlement agreement in writing to the director. The director may withdraw from a settlement agreement after considering the comments. H. If the director determines that the owner or operator does not qualify for a settlement pursuant to this section, the director shall notify the owner or operator in writing within ninety days after the receipt of all information required pursuant to this section stating the reasons for ineligibility. The application for settlement is deemed denied if the director does not notify the owner or operator within ninety days after the director's receipt of all applicable information. A denial of a settlement application under this subsection constitutes an appealable agency action as defined in section 41-1092. In any administrative appeal hearing conducted pursuant to title 41, chapter 6, article 10, the documents submitted by the owner or operator pursuant to this section are not confidential. Any appeal is limited to the owner's or operator's eligibility for a financial hardship settlement pursuant to this section and the owner's or operator's ability to pay the direct costs incurred by the director pursuant to section 49-1017, subsection C. 49-1017.02. Powers of the director; noncorrective actions A. Subject to the availability of monies in the underground storage tank revolving fund that are allocated by the director, an owner, an operator or another person that meets the requirements of section 49-1016, subsection C may request that the department conduct one or more of the following noncorrective actions at a site: 1. Obtaining a baseline assessment of a tank or site as prescribed in section 49-1052. 2. Confirmation of a suspected release at a tank or site. 3. Permanent closure of an underground storage tank as prescribed by section 49-1008. B. In determining the priority for requests under subsection A of this section, the director may consider the following factors: 1. The age, construction and operational history of the underground storage tank at the site. 2. The hydrogeologic characteristics of the site where the underground storage tank is located and the surrounding area. 3. The proximity, quality and current and future uses of nearby surface water and groundwater. 4. The potential effects of residual contamination to nearby surface water and groundwater. 5. The degree of exposure, including the physical and chemical characteristics of the type of petroleum sold or suspected to have been released, including its toxicity, persistence and potential for migration. 6. The financial ability of the person to conduct the action with the person's own monies. C. A request for a noncorrective action under this section shall be on a form provided by the department and shall contain sufficient information related to the site and the factors prescribed in subsection B of this section to allow the director to make a determination of priority for that request. 49-1018. Corrective action; enforcement; priority The director shall give priority in undertaking state-led corrective actions pursuant to section 49-1017 to releases of regulated substances from underground storage tanks that pose the greatest threat to human health and the environment and shall consider the degree to which financial assistance from the department is necessary to ensure that corrective actions will be conducted. 49-1019. Release of regulated substance; causes of action; limitation; liability A. Any one of the following persons may bring an action in superior court against a person who caused or contributed to the release of a regulated substance from an underground storage tank to require that person to reimburse one of the following persons for the reasonable costs of corrective actions taken in response to the release: 1. An owner or operator of an underground storage tank or any other person who takes a corrective action pursuant to section 49-1005. 2. An owner or operator of an underground storage tank or any other person from whom costs are recovered by this state pursuant to this chapter. B. The person seeking reimbursement has the burden of demonstrating that the corrective action costs incurred were reasonable. C. This article d