Drawing on Financial Assurance Mechanisms

PURPOSE: This rule describes the procedures for draw down of financial responsibility mechanisms. (1) Except as specified in section (4) of this rule, the director shall require the guarantor, surety, or institution issuing a letter of credit to place the amount of funds stipulated by the director, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if— (A) The following conditions exist: 1. The owner or operator fails to establish alternate financial assurance within sixty (60) days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism; and 2. The director determines or suspects that a release from an underground storage tank (UST) covered by the mechanism has occurred and so notifies the owner or operator, or the owner or operator has notified the director pursuant to 10 CSR 26-2.050–10 CSR 26-2.083 of a release from a UST covered by the mechanism; or (B) The conditions of subsection (2)(A) or paragraph (2)(B)1. or 2. of this rule are satisfied. (2) The director may draw on a standby trust fund when— (A) The director makes a final determination that a release has occurred and immediate or long-term corrective action for the release is needed and the owner or operator, after appropriate notice and opportunity to comply, has not conducted corrective action as required in 10 CSR 26-2.060–10 CSR 262.083; or (B) The director has received either— 1. Certification from the owner or operator and the third-party liability claimant(s), and from attorneys representing the owner or operator and the third-party liability claimant(s), that a third-party liability claim should be paid. The certification shall be worded as specified in Form 10, included herein; or 2. A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from a UST covered by financial assurance under 10 CSR 263.095–10 CSR 26-3.115 and the director determines that the owner or operator has not satisfied the judgment. (3) If the director determines that the amount of corrective action costs and third-party liability claims eligible for payment under section (2) of this rule may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The director shall pay thirdparty liability claims in the order in which the director receives certifications under paragraph (2)(B)1. of this rule and valid court orders under paragraph (2)(B)2. of this rule. (4) A governmental entity acting as guarantor under 10 CSR 26-3.114(7), the local government guarantee without standby trust, shall make payments as directed by the director under the circumstances described in 10 CSR 26-3.108(1)–(3). Substance Storage Tanks Form 10—Certification of Valid Claim The certification of valid claim must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: Certification of Valid Claim The undersigned, as principals and as legal representatives of [insert owner or operator] and [insert name and address of third-party claimant], hereby certify that the claim of bodily injury (and/or) property damage caused by an accidental release arising from operating [owner’s or operator’s] underground storage tank should be paid in the amount of $[insert dollar amount]. [Signatures] [Owner or Operator] [Attorney for Owner or Operator] [Notary] [Date] [Signatures] [Claimant(s)] [Attorney(s) for claimant(s)] [Notary] [Date] AUTHORITY: section 319.114, RSMo 2000.* This rule originally filed as 10 CSR 2011.108. Original rule filed Feb. 7, 1991, effective Aug. 30, 1991. Amended: Filed Aug. 3, 1993, effective April 9, 1994. Moved and amended: Filed April 15, 2011, effective Dec. 30, 2011. *Original authority: 319.114, RSMo 1989.