Subchapter C. COVERAGE AND CLAIMS PROCEDURES
Sec.
977.31. Eligibility requirements.
977.32. Participant cooperation.
977.33. Fund coverage and exclusions.
977.34. Claims reporting.
977.35. Third-party suit.
977.36. Corrective action payments.
977.37. Priority of claims.
977.38. Primary coverage.
977.39. Claim dispute procedures.
977.40. Subrogation for corrective action cost.§ 977.31. Eligibility requirements.
To be eligible for Fund coverage, the participant shall, under section 706 of the act (35 P. S. § 6021.706), meet the following eligibility requirements:
(1) The claimant is the owner, operator or certified tank installer of the tank which is the subject of the claim.
(2) The current fee required under section 705 of the act (35 P. S. § 6021.705) has been paid.
(3) A UST has been registered in accordance with the requirements of section 503 of the act (35 P. S. § 6021.503).
(4) The participant has obtained the appropriate permit or certification, if required under sections 108, 501 and 504 of the act (35 P. S. § § 6021.108, 6021.501 and 6021.504).
(5) The release that is the subject of the claim occurred after the date established by the Board for payment of the fee required by section 705(d) of the act.
(6) The participant cooperates, as defined in § 977.32 (relating to participant cooperation), with the Fund in its eligibility determination process, claims investigation, the defense of any suit, the pursuit of a subrogation action and other matters as requested.
(7) The participant has met the notification requirements of § 977.34 (relating to claims reporting).
(8) If the claimant is a certified company, the company conducted a tank-handling activity on a UST or a HOT from which the release occurred.
Cross References This section cited in 25 Pa. Code § 977.22 (relating to fee dispute procedures); and 25 Pa. Code § 977.52 (relating to coverage period).
§ 977.32. Participant cooperation.
(a) At a minimum, the participant shall cooperate by:
(1) Providing all information requested by the Fund including tank system design documents, inventory records, tank tightness test results, contracts and other information pertinent to a claim within 30 days of the request of the Fund, or additional time as set by the Fund.
(2) Permitting the Fund or its agent to inspect, sample and monitor on a continuing basis the property or operation of the participant.
(3) Providing access to interview employees, agents, representatives or independent contractors of the participant; and to review any documents within the possession, custody or control of the participant concerning the claim.
(4) Submitting, and requiring employees, consultants and other interested parties subject to its control to submit, to an examination under oath upon the request of the Fund.
(5) Obtaining competitive proposals for work to be performed when requested by the Fund.
(b) The participant shall cooperate in all respects with the Fund, its investigators, attorneys and agents during the investigation and resolution of a claim, including the defense of a suit, as provided in § 977.35 (relating to third-party suit) and any subrogation action as provided in § 977.40 (relating to subrogation for corrective action cost).
(c) Lack of cooperation by the participant with the Fund or its investigators, attorneys, or agents may result in denial of the claim or cessation of further payments on a claim.
Cross References This section cited in 25 Pa. code § 977.32 (relating to eligibility requirements); 25 Pa. Code § 977.35 (relating to third-party suit); and 25 Pa. Code § 977.40 (relating to subrogation for corrective action cost).
§ 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).
§ 977.34. Claims reporting.
The participant shall notify the Fund within 60 days after the confirmation of a release under § § 245.304 and 245.305 (relating to investigation of suspected releases; and reporting releases).
Cross References This section cited in 25 Pa. Code § 977.31 (relating to eligibility requirements).
§ 977.35. Third-party suit.
(a) Suit. In addition to the requirements of § 977.32 (relating to participant cooperation), the participant shall assist the Fund in its defense of a suit. The participant shall forward to the Fund all materials including:
(1) Technical reports, laboratory data, field notes or any other documents gathered by or on behalf of the participant to abate a release or to implement corrective action.
(2) Documentation of release detection methods, such as tank and line tightness tests or inventory records to verify that a release has taken place.
(3) Correspondence between the participant and any other persons relating to the release or claim that is the subject of the suit.
(4) Demands, summons, notices or other processes or papers filed with, in or by a court of law, administrative agency or an investigative body relating to the release or claim.
(5) The expert reports, investigations and data collected by experts retained by the participant relating to the release or claim.
(6) Other information developed or discovered by the participant concerning the release or claim.
(b) Legal defense undertaken by the Fund. The Fund may settle or defend any claim for bodily injury or property damage. The Fund may assign legal counsel to defend any suit brought against the participant by a third party. The Fund will not reimburse legal fees for any firm not assigned by the Fund.
(c) Defense and exhaustion of limits. The Fund is not required to pay defense costs after the limit of liability is exhausted.
Cross References This section cited in 25 Pa. Code § 977.32 (relating to participant cooperation).
§ 977.36. Corrective action payments.
(a) The Fund shall make payments for reasonable and necessary corrective action costs to an owner or operator, unless a signed Authorization to Pay Form provided by the Fund has been submitted designating another person to receive Fund payments.
(b) Time and expense charges for remediation invoices shall be submitted to the Fund for all work performed. For invoices to be paid by the Fund, the invoices shall be fully documented to include:
(1) Time sheets for personnel and equipment.
(2) Statements of work performed.
(3) Receipts or other documentation for expendable supplies and subcontractor supplies.
(4) A list of tests performed with costs and results for any laboratory analyses.
(5) The owner, operator or remediation contractor shall supply rate schedules, fees for service schedules and contracts with consultants.
(6) All subcontractor invoices.
(c) An owner or operator may request that the Fund employ an alternative remediation payment option to include pay for performance type contracts.
§ 977.37. Priority of claims.
The Fund may prioritize claims for payment. The prioritization may take into account corrective action costs and the impact of the release on human health.
§ 977.38. Primary coverage.
(a) Primary coverage. The Fund provides primary coverage for corrective action costs and eligible claims for personal injury and property damage due to a release from a UST or a HOT.
(b) Combined limits. When the Fund determines a certified company is responsible for the release that is the subject of the claim, the coverage of a certified company will be exhausted before the coverage of an owner or operator of a UST or a HOT is applied.
§ 977.39. Claim dispute procedures.
The participant, or a distributor, that disputes a determination of the Fund may obtain a review of the determination by filing an appeal with the Executive Director of the Fund by following the procedures established in § 977.61 (relating to dispute procedures).
§ 977.40. Subrogation for corrective action cost.
(a) The Fund, after any payment, shall be subrogated to all of the rights of recovery of an owner or operator against any person for the costs of remediation.
(b) If an owner or operator does not comply with § 977.32 (relating to participant cooperation), the Fund may deny further payments on a claim.
Cross References This section cited in 25 Pa. Code § 977.32 (relating to participant cooperation).
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