To repeal section 319.131, RSMo Supp. 1995, relating to the underground storage tank insurance fund, and to enact one new section relating to the same subject.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI,

AS FOLLOWS:

Section A. Section 319.131, RSMo Supp. 1995, is repealed and one new section enacted in lieu thereof, to be known as section 319.131, to read as follows:

319.131. 1. Any owner or operator of one or more underground storage tanks containing petroleum products may elect to participate in the underground storage tank insurance fund to partially meet the financial responsibility requirements of sections 319.100 to 319.137. Current or former refinery sites or petroleum pipeline terminals are not eligible for participation in the fund. The existence of any aboveground storage tank or tanks at a site where a person is seeking underground storage tank insurance in accordance with this section shall not in any way adversely affect that person's ability to participate in this program; provided the aboveground storage tanks are protected by a secondary containment structure designed to contain any spilled or leaking product as specified by rules of the division of weights and measures within the department of agriculture and the applicant provides documentation of a reasonable assurance of the tank line's integrity.

2. The director of the department of natural resources shall establish an advisory committee composed of insurers and owners and operators of underground storage tanks. The committee shall monitor the fund and recommend statutory and administrative changes as may be necessary to assure efficient operation of the fund. Beginning in 1994, the committee, in consultation with the department of natural resources and the department of insurance, shall annually report to the general assembly on the availability and affordability of the private insurance market as a viable method of meeting the financial responsibilities required by state and federal law in lieu of the underground storage tank insurance fund.

3. (1) Except as otherwise provided by this section, any person seeking to participate in the insurance fund shall submit an application to the director of the department of natural resources[,] and shall certify that the tanks meet or exceed and are in compliance with all technical standards established by the United States Environmental Protection Agency and the department of natural resources. The applicant shall submit proof that he has a reasonable assurance of the tank's integrity. Proof of tank integrity may include but not be limited to any one of the following: tank tightness test, electronic leak detection, monitoring wells, daily inventory reconciliation, vapor test or any other test that may be approved by the director. The applicant shall submit evidence that he can meet the financial responsibility requirements of this section.

(2) A creditor that extends commercial credit in the ordinary course of business may be a successor in interest to a debtor who has qualified specific real property under this section, provided that the creditor gives notice of the interest to the insurance fund by certified mail, return receipt requested. The term "successor in interest" under this section means a creditor to the debtor who had qualified specific real property in the insurance fund prior to the transfer of title to the creditor, and the term is limited to access to the insurance fund. The creditor may cure any of the debtor's defaults in payments required by the insurance fund, provided the specific real property originally qualified under this section. The creditor, or the creditor's subsidiary or affiliate, who forecloses or otherwise obtains legal title to such specific real property held as collateral for loans, guarantees or other credit, and which includes the debtor's underground storage tanks, need not make application to join the insurance fund and may utilize the creditor's affiliate or subsidiary to hold legal title to the specific real property taken in satisfaction of debts. Creditors may be listed as insured or additional insured on the insurance fund, and not merely as mortgagees, and may assign or otherwise transfer the debtor's rights in the insurance fund to the creditor's affiliate or subsidiary, notwithstanding any limitations in the insurance fund.

(3) Any person participating in the insurance pool provided in sections 319.100 to 319.137 shall annually submit an amount established pursuant to subsection 1 of section 319.133 which shall be deposited to the credit of the underground storage tank insurance fund.

4. The owner or operator making a claim pursuant to this section and sections 319.129 and 319.133 shall be liable for the first ten thousand dollars of the cost of cleanup associated with a release from an underground storage tank without reimbursement from the fund. The underground storage tank insurance fund shall assume all costs, except as provided in subsection 5 of this section, which are greater than ten thousand dollars but less than one million dollars per occurrence or two million dollars aggregate per year. The liability of the underground storage tank insurance fund is not the liability of the state of Missouri. The provisions of sections 319.100 to 319.137 shall not be construed to broaden the liability of the state of Missouri beyond the provisions of sections 537.600 to 537.610, RSMo, nor to abolish or waive any defense which might otherwise be available to the state or to any person. The presence of existing contamination at a site where a person is seeking underground storage tank insurance in accordance with this section shall not affect that person's ability to participate in this program, provided the person meets all other requirements of sections 319.100 to 319.139.

5. The fund shall provide coverage for third-party claims involving property damage or bodily injury caused by leaking underground storage tanks whose owner or operator is participating in the fund. Coverage for third-party bodily injury shall not exceed one million dollars per occurrence. Coverage for third-party property damage shall not exceed one million dollars per occurrence. The fund shall not compensate an owner or operator for repair of damages to property beyond that required to contain and clean up a release of a regulated substance or compensate an owner or operator or any third party for loss or damage to other property owned or belonging to the owner or operator, or for any loss or damage of an intangible nature, including, but not limited to, loss or interruption of business, pain and suffering of any person, lost income, mental distress, loss of use of any benefit, or punitive damages. [Money from the fund shall not be expended for cleanup of releases being remediated prior to August 28, 1989.]

6. The fund shall, within limits specified in this section, assume costs of third-party claims and cleanup of contamination caused by releases from underground storage tanks. The attorney general shall, upon request, bring an action against such owner or operator to recover any costs or expenses owed to the fund plus reasonable attorney's fees.

7. Nothing contained in sections 319.100 to 319.137 shall be construed to abrogate or limit any right, remedy, causes of action, or claim by any person sustaining personal injury or property damage as a result of any release from any type of underground storage tank, nor shall anything contained in sections 319.100 to 319.137 be construed to abrogate or limit any liability of any person in any way responsible for any release from an underground storage tank or any damages for personal injury or property damages caused by such a release.

8. The fund shall provide moneys for cleanup of contamination caused by releases from underground storage tanks, the owner or operator of which is participating in the underground storage tank insurance fund or the owner or operator of which has made application for participation in the fund by August 28, 1995, regardless of when such release occurred, provided that those persons who have made application are ultimately accepted into the fund. Applicants shall not be eligible for fund benefits until they are accepted into the fund.

9. (1) The fund shall provide moneys for cleanup of contamination caused by releases from underground storage tanks which have been taken out of use prior to August 28, 1995, provided such sites have been documented by or reported to the department of natural resources prior to August 28, 1995, and provided further that the fund shall make no reimbursements for expenses incurred prior to August 28, 1995. Nothing in sections 319.100 to 319.137 shall affect the validity of any underground storage tank fund insurance policy in effect on August 28, 1996.

(2) Any person who otherwise qualifies under sections 319.100 to 319.137 may file a request for the approval of the proposed project, sometimes referred to as a remedial action plan. The department of natural resources shall either approve, modify or disapprove the remedial action plan within forty-five days from the department's receipt of the request, or the person may proceed with the remedial action plan notwithstanding the lack of approval by the department. The department's action shall be sent to the person by certified mail, return receipt requested. The department's modification or disapproval shall include specific recommendations for appropriate cleanup which takes into consideration cost efficient cleanup procedures and other relevant factors.

(3) Any person whose remedial action plan is approved may submit a request for the approval and payment of the remediation expenses. The department of natural resources shall either approve, modify or disapprove the remediation expenses within forty-five days from the department's receipt of the request, or the person may proceed with the remediation expenses notwithstanding the lack of approval by the department. The department may offer modifications to the request, including an offer to pay a part of the remediation expenses. The department's actions shall be sent by certified mail, return receipt requested, to the person making the request. When the expense requests are approved either by a written reply, or with a no action response, the payments shall be made by the department at least monthly until the appropriated insurance funds are exhausted.

(4) Any person qualifying under subdivision 3 of subsection 9 of this section who does not receive payment within thirty days is entitled to interest on such reimbursement at the rate provided for contracts without interest rates in section 408.020, RSMo.

(5) A person who submits a request as provided in this subsection is not required to bid the costs and expenses associated with the environmental consultant who inspects the project. The person may request bids for the actual remediation or cleanup work, and the lowest and best bid shall be accepted as hereinafter qualified. Bids substantially below the average of the bids shall be considered suspect and may not be accepted unless the bidder's professional credentials, support staff and previous successful remediation experience justify the acceptance of the bid.