328 IAC 1-4-1 General procedure for prioritization

Sec. 1. (a) The procedures in this section apply in the event the unencumbered balance, less the unpaid, approved claims for reimbursable costs and ELTF indemnity claims, in the fund falls below the following: (1) Twenty-five million dollars ($25,000,000). (2) Five million dollars ($5,000,000), with the prioritized claims, based on the categorized releases, paid in accordance with section 4 of this rule. The administrator may invoke this section prior to the unencumbered fund balance, less the unpaid, approved claims for reimbursable costs and ELTF indemnity claims, falling below the amounts specified in subdivision (1) or (2). (b) All claims or parts of claims submitted to the administrator for an emergency measure are paid first. If the claim or part of the claim is for work performed that has not been determined to be an emergency measure, the claim or part of the claim for that work is paid: (1) according to the category of the eligible release as determined in subsection (c); and (2) after the payment of all claims or parts of claims for emergency measures. (c) After the initial site characterization, further site investigation, or a corrective action progress report is completed, the eligible release is placed in the lowest numbered category for which it qualifies as follows, and all claims for reimbursement of costs and ELTF indemnity claims are paid in numerical order of the eligible release category subject to the release recategorization provisions under section 3 of this rule: (1) An eligible release is considered a category 1 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the eligible release: (A) Petroleum or petroleum constituents that exceed ten percent (10%) lower explosive limit (LEL) are detected in a structure or a utility conduit, such as a: (i) storm sewer; (ii) sanitary sewer; or (iii) utility conduit. (B) Vapors for petroleum or petroleum constituents are detected in a building at levels greater than the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for contaminants of concern. (C) Petroleum or petroleum constituents are detected in a drinking water well at or above the appropriate screening levels for ground water as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 at the point of compliance or at the tap. (2) An eligible release is considered a category 2 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the eligible release: (A) Petroleum or petroleum constituents are detected in free phase in a thickness of at least one (1) foot in any one (1) well, or at least one (1) inch in two (2) or more wells where the wells are at least twenty (20) feet apart, provided that the wells are not screened in the underground storage tank cavity backfill. (B) Petroleum or petroleum constituents are detected in surface water above water quality standards under 327 IAC 2. (3) An eligible release is considered a category 3 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the eligible release: (A) Petroleum or petroleum constituents are detected off-site in ground water at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use of the off-site location. (B) Petroleum or petroleum constituents are detected off-site in soil at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use of the off-site location. (C) Petroleum or petroleum constituents are present in free phase in a thickness of at least one-sixteenth (1/16) inch in any well. (D) Petroleum or petroleum constituents, attributable to a gasoline release, are detected in the ground water at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2 for the land use. For the purposes of this clause, gasoline has the meaning set forth in IC 6-6-1.1-103(g). (4) An eligible release is considered a category 4 eligible release if the administrator determines, based on the most recent information submitted to the administrator, that at least one (1) of the following has occurred and is attributable to the eligible release: (A) Petroleum or petroleum constituents are detected in on-site ground water at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2, in two (2) or more wells, where the wells are at least twenty (20) feet apart, where neither well is screened in the underground storage tank cavity backfill. (B) Petroleum or petroleum constituents are detected in on-site soil at concentrations exceeding the appropriate screening levels as specified by the department in accordance with the remediation standards determined under IC 13-12-3-2, in at least two (2) boring holes at least twenty (20) feet apart. (5) An eligible release that does not qualify as a category 1, 2, 3, or 4 eligible release is considered a category 5 eligible release. (6) Claims in the same category are paid in chronological order according to the date and time received by the administrator as indicated by the date and time stamped by the administrator on the claim submitted to the administrator. (d) Eligible releases must be initially categorized according to those conditions that existed at the time the first claim was submitted after prioritization was initiated. (e) Claims determined to not be reimbursable may be revised and resubmitted to the fund. The date and time of the revised claim for the purposes of subsection (c)(6) must be based on the date and time that the fund administrator receives the revised claim as indicated by the date and time stamped by the administrator on the claim submitted to the administrator. (f) An applicant may request a review of a denial of payment using the procedures set forth in IC 13-23-9-4 [NOTE: IC 13-23-9-4 is repealed by P.L. 135-2026, SECTION 244, effective July 1, 2026.]. (g) Categorization of an eligible release or placement of a claim on a priority list does not constitute a commitment to reimburse corrective action or ELTF indemnity claim costs.