49-1091.01. Fee and cost reimbursement; application; limitations

A. This section applies to an owner, an operator or a person that undertakes corrective action pursuant to section 49-1016, subsection C for any of the following:

1. A written interim determination or interim decision from the department on matters relating to:

(a) Owner or operator status.

(b) Preapproval or reimbursement from the underground storage tank revolving fund established by section 49-1015.

2. The department's approval, disapproval or notice of deficiency of:

(a) Site characterization reports.

(b) Corrective action plans for soil or groundwater, or both.

B. An owner, operator or person that undertakes corrective action pursuant to section 49-1016, subsection C shall receive reimbursement for reasonable attorney fees, consultant fees and costs that are actually incurred and not excessive in all proceedings that follow the interim decision or interim determination pursuant to section 49-1091, if that party satisfies both of the following requirements:

1. Submitted a written notice of the disagreement to the department within thirty days pursuant to section 49-1091.

2. Requested and participated in a meeting with the department regarding decisions or determinations pursuant to section 49-1091, subsection A, paragraph 2 or subsection G, paragraph 1 or 2.

C. The attorney fees, consultant fees and costs shall be paid only for those amounts that are reasonable, actually incurred and not excessive in the portion of the proceedings that are the subject of the notice of disagreement in which the owner, operator or person that undertakes corrective action pursuant to section 49-1016, subsection C prevailed, including proceedings resulting in a favorable decision or determination from the department or in a judicial proceeding.

D. The reimbursement provided by subsection B of this section is subject to the following limitations:

1. Fees and costs shall not be paid if the department makes a favorable determination or decision on the issue appealed before or in the final decision or determination.

2. Fees and costs shall not be paid if all of the following conditions are met:

(a) Information requested pursuant to section 49-1053, subsection B or section 49-1091, subsection E is not provided to the department before the time the department issues a final decision or determination that is adverse to the owner, operator or person that undertakes corrective action pursuant to section 49-1016, subsection C.

(b) The final decision or determination is subsequently reversed or otherwise decided in favor of the person based on information previously requested by the department.

3. In an appeal of a determination regarding an application for preapproval or reimbursement from the underground storage tank revolving fund, attorney fees, consultant fees and costs paid pursuant to this subsection may not exceed the amount that is in dispute.

4. If information requested by the department pursuant to section 49-1053, subsection B or section 49-1091, subsection E is provided to the department before the department issues a final decision or determination that is adverse to the owner, operator or person that undertakes corrective action pursuant to section 49-1016, subsection C, and the final decision or determination is subsequently reversed or otherwise decided in favor of the owner, operator or person that undertakes corrective action pursuant to section 49-1016, subsection C based on that information, attorney fees, consultant fees and costs shall only be paid for those amounts actually incurred after the information was provided.