§ 977.33. Fund coverage and exclusions.
(a) Fund coverage.
(1) Corrective action. The Fund shall indemnify an eligible owner or operator for up to the available coverage limit, for reasonable and necessary corrective action costs. See paragraph (4).
(2) Bodily injury or property damage. The Fund shall indemnify the eligible participant, up to the available coverage limit, for bodily injury and property damage. See paragraph (4).
(i) The Fund may defend any suit against the eligible participant. The cost of this defense does not reduce Fund coverage limits.
(ii) Punitive or exemplary damages awarded against the participant as a result of a suit are excluded from Fund coverage.
(3) Deductible. Payment of a claim for corrective action costs shall be subject to a deductible in an amount not less than $5,000 per tank per occurrence for each UST or HOT that contributed to the release. If an eligible claim for bodily injury or property damage results from the release, an additional deductible per tank per occurrence in an amount not less than $5,000 applies to all claims in addition to the deductible for corrective action. A certified company is subject to one deductible per tank per occurrence. The Fund in its discretion may pay the entire claim and seek reimbursement of the applicable deductible from the participant. The Fund shall publish the deductibles in the Pennsylvania Bulletin annually.
(4) Limits of liability. Payment of corrective action costs and bodily injury and property damage claims (See section 704 of the act (35 P. S. § 6021.704)) are subject to the following limits of liability:
(i) Payments for reasonable and necessary corrective action costs, and bodily injury or property damage may not exceed a total of $1.5 million per tank per occurrence and may not exceed the annual aggregate limit.
(ii) Payments may not exceed:
(A) An annual aggregate of $1.5 million for each owner and operator of 100 or less USTs or an owner or operator of 100 or less HOTs.
(B) An annual aggregate of $3 million for each owner or operator of 101 or more USTs or an owner or operator of 101 or more HOTs.
(iii) For the purpose of determining coverage limits, any release, whether sudden, accidental, intermittent or continuous, will be considered one occurrence.
(iv) The Fund will only reimburse an owner or operator for reasonable and necessary corrective action costs.
(v) Damages paid to a third party for bodily injury or property damage may not exceed the amount of damages awarded by a court of competent jurisdiction or the amount agreed to by the Fund in settlement of the claim or suit resulting from a release. Under no circumstances will the Fund pay any amount in excess of the Fund’s limit of liability as found in this paragraph.
(b) Exclusions. Fund coverage does not apply to the following:
(1) A release caused in whole or in part by the intentional act of the participant.
(2) Damages which the participant is legally obligated to pay solely by reason of the assumption of liability in a contract or agreement unless the participant has paid all current and past-due fees to the Fund as required by section 705(e) of the act (35 P. S. § 6021.705(e)), and the release was not discovered or known by the participant or by any previous participant, prior to the payment of any past due fees.
(3) Any portion of a release which occurred before February 1, 1994.
(4) A claim made against a certified company before the date of coverage.
(5) A claim made against the participant for a release discovered before any required fees are paid.
(6) Default judgments.
Authority The provisions of this § 977.33 amended under sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. § § 66, 186, 411 and 412).
Source The provisions of this 977.33 amended December 20, 2002, effective December 21, 2002, 32 Pa.B. 6258. Immediately preceding text appears at serial pages (285938) to (285939).
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