35-11-1424. Corrective action account created; use of monies; cost recovery.

(a) There is created the corrective action account. This account is intended to provide for financial assurance coverage required by federal law and shall be used by the department to take corrective action in response to a release and to remediate orphan sites and solid waste landfills. The department shall use monies from the corrective action account as appropriated by the legislature for the administration of this article, W.S. 35-11-533 through 35-11-537 and 35-11-1701. Interest earned by this account shall be deposited in the general fund. Monies in the corrective action account shall also be used for the state water pollution control revolving loan account pursuant to W.S. 16-1-201 through 16-1-207. Except as provided in subsection (p) of this section, and contingent on availability of money in the corrective action account, the director shall distribute monies in the corrective action account to the solid waste landfill remediation account created by W.S. 35-11-535 and the orphan site remediation account created pursuant to W.S. 35-11-1701 on July 1 of each specified year in an amount up to:

(i) 2019-one million dollars ($1,000,000.00) to the solid waste landfill remediation account and one million dollars ($1,000,000.00) to the orphan site remediation account;

(ii) 2020-four million dollars ($4,000,000.00) to the solid waste landfill remediation account and one million dollars ($1,000,000.00) to the orphan site remediation account;

(iii) 2021 five million dollars ($5,000,000.00) to the solid waste landfill remediation account and one million dollars ($1,000,000.00) to the orphan site remediation account;

(iv) 2022 five million dollars ($5,000,000.00) to the solid waste landfill remediation account and one million dollars ($1,000,000.00) to the orphan site remediation account;

(v) 2023 six million dollars ($6,000,000.00) to the solid waste landfill remediation account and one million dollars ($1,000,000.00) to the orphan site remediation account;

(vi) 2024 through 2028 provided that in no event shall monies in the corrective action account on July 1 of any year of this period be less than two million dollars ($2,000,000.00), the director shall:

(A) Determine expected expenditures from the corrective action account for the underground storage tank program for the next fiscal year and retain monies equal to that amount in the corrective action account;

(B) Deposit up to one million dollars ($1,000,000.00) from the remainder of the monies in the corrective action account into the orphan site remediation account; and

(C) Deposit the remainder of the monies from the corrective action account into the solid waste landfill remediation account.

(vii) 2029 and each year thereafter-the director shall determine expected expenditures from the corrective action account for the underground storage tank program for the next fiscal year and retain monies equal to that amount in the corrective action account, with the remainder of the monies being divided and deposited at the director's discretion into the solid waste landfill remediation account and the orphan site remediation account, but in no event shall monies in the corrective action account on July 1 of any year be less than two million dollars ($2,000,000.00).

(b) The department shall establish priority lists of sites contaminated by tanks. The priorities shall be based on public health, safety and welfare and environmental concerns. The council after recommendation from the director of the department, the administrator of the various divisions and their respective advisory boards shall promulgate rules and regulations for defining priorities.

(c) The department shall use corrective action account monies to take corrective actions at sites contaminated by tanks. The department shall take corrective actions based on the sites' placement on the priority list. However, if an emergency threat to public health, safety and welfare or to the environment exists, or costs of cleanup may be significantly reduced, a site may be moved up on the priority list for immediate corrective action.

(d) For a site to be eligible for use of monies in the corrective action account, the owner or operator of the site shall, if required, pay the tank fee required by W.S. 35-11-1425, conduct a minimum site assessment, as defined by rule and regulation, and, if contamination is found, take action to prevent continuing contamination. The department shall notify all owners and operators on record at the department of the minimum site assessment requirements. Sites which do not meet the eligibility requirements specified in this subsection shall not be eligible for use of any monies in the corrective action account. Owners and operators of these ineligible sites shall not use the corrective action account for proof of financial assurance for the sites. Pending determination of the site's eligibility, the department may use corrective action account monies for corrective actions at a contaminated site.

(e) Sites where tanks have been removed or abandoned in accordance with any government regulations effective at the time of abandonment may become eligible for use of corrective action account monies if the person who owns the site pays a two hundred dollar ($200.00) annual fee per site and conducts a site assessment as required by subsection (d) of this section. The annual fee per site required under this subsection shall be paid for a maximum of ten (10) years and shall then lapse until corrective action is undertaken by the department. Failure to meet these requirements may subject the person who owns the site to suit for corrective action or cost recovery. The fee collected under this subsection shall be deposited in the corrective action account. The department shall notify all the owners and operators who are on record at the department who have removed or properly abandoned a tank of the provisions of this subsection.

(f) If, after due diligence, no owner or operator can be found, a contaminated site shall be placed on the priority list in appropriate rank with other sites. If an owner or operator of a site which is not in compliance and the owner or operator refuses to comply with subsection (d) of this section is discovered, that site shall be considered as ineligible for use of corrective action account monies and shall be treated as defined in subsection (g) of this section.

(g) The department may, by an action brought by the attorney general against an owner or operator, recover reasonable and necessary expenses incurred by the department in taking a corrective action. These recoverable expenses include but are not limited to costs of investigating a release, administrative costs and reasonable attorney fees. The department's certification of expenses is prima facie evidence the expenses are reasonable and necessary. Expenses recovered under this section shall be deposited in the corrective action account unless otherwise required by state or federal law. The department may sue for recovery of expenses only if:

(i) The owner or operator has failed to take the actions required for that site in subsection (d) of this section; or

(ii) The owner or operator had tank insurance for that site at the time of the release. However no such recovery under this subsection may exceed the limits or coverage of the insurance policy in question.

(h) The state has a right of subrogation to any insurance policies in existence at the time of the release to the extent of any rights the owner may have had under that policy. This right of subrogation shall apply regardless of the owner's eligibility to use corrective action account monies under subsection (d) of this section. In implementing this section the department shall:

(i) Notify all known owners and operators, past and present, of sites where contamination from a tank is known to exist and request information relating to any insurance policies they possess or possessed at the time of release that may provide coverage for corrective action or cleanup of the contamination at the site;

(ii) Notify all insurance companies which have been identified to the department pursuant to W.S. 35-11-1419 and may have issued insurance policies that provide coverage for contamination from tanks and request copies of any such policies. In notifying insurance companies the department shall provide the insurance company with the name of all known owners, past and present, and the legal description of the site upon which the tank is or was located. The department notification shall require each insurance company to notify the department whenever there is a change in the insurance policy, including cancellation.

(j) Nothing in this section shall be construed to authorize payments for the repair, removal or replacement of any tank or equipment.

(k) Nothing in this section shall be construed to authorize payments or commitments for payments in amounts in excess of the monies available.

(m) Within thirty (30) days after receipt of notification that the corrective action account has become incapable of paying for assured corrective actions, the owner or operator shall obtain alternate financial assurance.

(n) Any person or insurance company notified by the department under paragraph (h)(i) or (ii) of this section shall provide the requested information to the department within thirty (30) days of receipt of the notification. In addition to other remedies provided for in this act, failure of any insurance company to provide copies of the requested policies shall result in the statute of limitations provided in subsection (o) of this section being tolled for any action the department may bring in subrogation until such time as the policy is discovered.

(o) Notwithstanding any other applicable period of limitation, upon notification by any owner, operator or insurance company of any insurance coverage in existence, the department shall have five (5) years to commence any action for the recovery of proceeds under the applicable policy.

(p) The director is authorized to withhold distributions from the corrective action account to the solid waste remediation account and the orphan site remediation account as provided in subsection (a) of this section in the event of:

(i) An emergency involving a leaking underground storage tank which requires immediate corrective action which will require an expenditure of monies in excess of the monies available in the corrective action account; or

(ii) Monies in the account are less than the amount required by federal law to provide for financial assurance coverage or adequate leaking underground storage tank remediation.

(q) The director shall submit a report to the joint minerals, business and economic development interim committee by June 15, 2019 and by June 15 of every year thereafter, describing the amount to be withheld in the corrective action account pursuant to subsections (a) and (p) of this section, and the factors used in making those determinations, and describing the distributions of monies from the corrective action account to the solid waste landfill remediation account and the orphan site remediation account.

(r) Repealed by Laws 2018, ch. 12, § 2.