Okla. Stat. tit. 17, § 17-327.3

release.

A. The Oklahoma Petroleum Storage Tank Indemnity Program shall

provide reimbursement to eligible persons for allowable costs

resulting from an eligible release pursuant to the provisions of

this section.

B. 1. The Oklahoma Petroleum Storage Tank Indemnity Fund:

a. may require that any corrective action taken as a

result of an eligible release, other than corrective

action taken in an emergency situation, may be made by

the competitive bid of at least two bidders.

Acquisition or contracts or subcontracts for

corrective action or for labor or equipment comprising

a single task or scope of work which exceeds Two

Thousand Five Hundred Dollars ($2,500.00) from any one

vendor or subcontractor for any one site shall be

awarded to the lowest and best bidder,

b. shall require that an eligible person or a property

owner whose off-site property has been contaminated by

a release shall not retain an environmental consultant

to conduct the remediation of the release in which the

eligible person, property owner or impacted party has

more than a ten-percent interest ownership, is an

employee, or is an officer of the environmental

consultant, and

c. may require the owner or operator to submit

documentation evidencing proof of such competitive

bidding.

2. Any competitive bid submitted pursuant to this section shall

be accompanied by the sworn noncollusion statement contained in

Section 85.22 of Title 74 of the Oklahoma Statutes, modified in

wording as appropriate. In the event bids are not obtained pursuant

to this subsection, expenditures made without bids shall only be

reimbursed by the amount determined to be the reasonable value of

the equipment purchased or the task or scope of work performed.

3. Professional engineering, geological, land surveying and

other professional services or services provided by a Commission-

licensed storage tank environmental consultant required for

investigation and the preparation of corrective action plans or

proposed corrective action plans and oversight of corrective action

shall be selected based upon professional qualifications and

technical experience of the consultant at a fair and reasonable fee

as negotiated between the eligible person and his or her

environmental consultant.

Oklahoma Statutes - Title 17. Corporation Commission Page 247

C. The eligible person responsible for taking the corrective

action shall keep and preserve suitable records of hydrological and

other site investigations and assessments, site rehabilitation

plans, contracts and contract negotiations, and accounts, invoices,

sales tickets, or other payment records from purchases, sales,

leases, or other transactions or claims involving costs actually

incurred related to such corrective action or injury or damage.

Such records shall be made available upon request to agents and

employees of the Oklahoma Petroleum Storage Tank Indemnity Fund

during regular business hours, and at other times upon written

request. In addition, the employees, agents and representatives of

the Oklahoma Petroleum Storage Tank Indemnity Fund may from time to

time request submission of such site-specific information as it may

require. All records of costs actually incurred shall be certified

by affidavit to the Oklahoma Petroleum Storage Tank Indemnity Fund

as being true and correct.

D. 1. a. The Administrator shall deny or approve and pay, in

whole or in part, the application for reimbursement on

behalf of or to eligible persons and shall complete

initial reimbursement within ninety (90) days after

receipt of the complete application including but not

limited to all requisite supporting documents, unless

the time for review is extended by the Administrator

giving the applicant written notice of intent to

extend no later than eighty (80) days from the date of

receipt of the application. The total review period

shall not be extended beyond one hundred twenty (120)
ninety (90) days after

receipt of the complete application including but not

limited to all requisite supporting documents, unless

the time for review is extended by the Administrator

giving the applicant written notice of intent to

extend no later than eighty (80) days from the date of

receipt of the application. The total review period

shall not be extended beyond one hundred twenty (120)

days from the date of receipt of the complete

application including but not limited to all requisite

supporting documents, unless otherwise extended by

written mutual agreement of the applicant and the

Administrator.

b. The Administrator, within thirty (30) days of receipt

of the complete application including but not limited

to all requisite supporting documents, shall determine

whether such person is eligible for reimbursement and

shall notify such applicant as to his or her

eligibility in writing.

c. An application deemed to be incomplete shall not

trigger the time allowed for review.

2. Disposition of an application shall be provided to the

applicant in writing, accompanied by a written explanation setting

forth in detail the reason or reasons for the approval or denial of

a claim, in whole or in part. If the Administrator fails to make a

determination on an application or payment within the time provided

or denies an application, or if a dispute otherwise arises with

Oklahoma Statutes - Title 17. Corporation Commission Page 248

regard to reimbursement, the applicant may seek appropriate legal

remedies.

3. For claims submitted subsequent to submittal of the

application, the Administrator shall have thirty (30) days from the

date of receipt of the supplemental claim in which to approve or

deny the supplemental claim. If a supplemental claim is made

subsequent to the date of the application but prior to the

completion of the review of the application, the thirty-day review

period shall not commence until the Oklahoma Petroleum Storage Tank

Indemnity Fund has completed its review of the application. This

time for review may be extended by the Administrator giving the

applicant written notice of intent to extend no later than twenty

(20) days from the date of receipt of the claim.

4. For eligible releases requiring extensive corrective action,

the Administrator is authorized to make an initial payment and

periodic supplemental payments for reimbursements to eligible

persons for ongoing reimbursable costs actually incurred. An

eligible person intending to file for supplemental payments for

reimbursement shall submit work plans for implementation of the

corrective action plan approved by the Commission's regulatory

program pursuant to the Oklahoma Petroleum Storage Tank

Consolidation Act, or for other work which is proposed to be

performed. Such work plans shall include, but not be limited to,

the work to be completed, schedule of actions to be taken and

estimates of costs to be reimbursed. Such information may be

submitted with the application for reimbursement or whenever

appropriate. Such work plans shall be submitted for informational

purposes only. After approval of the application, the Administrator

shall have thirty (30) days from the date of receipt of a claim for

supplemental payment in which to approve and pay or deny the

supplemental claim. The thirty-day time for review may be extended

by the Administrator for an additional thirty (30) days upon giving

the applicant written notice of such intent to extend no later than

twenty (20) days from the date of receipt of the claim. If the

claim for payment is included with the application for

reimbursement, paragraph 1 of this subsection shall control.

E. 1. For reimbursement to any person the following conditions

apply:

a. the person claiming reimbursement must be an eligible

person,

b. the eligible person must have been in substantial

compliance with the applicable rules promulgated
he date of receipt of the claim. If the

claim for payment is included with the application for

reimbursement, paragraph 1 of this subsection shall control.

E. 1. For reimbursement to any person the following conditions

apply:

a. the person claiming reimbursement must be an eligible

person,

b. the eligible person must have been in substantial

compliance with the applicable rules promulgated

pursuant to the provisions of the Oklahoma Petroleum

Storage Tank Indemnity Fund and the Oklahoma Storage

Tank Consolidation Act at the time of the reporting of

the release,

Oklahoma Statutes - Title 17. Corporation Commission Page 249

c. allowable costs resulting from a release must have

been incurred on or after December 23, 1988,

d. the Commission determined that the release no longer

poses a threat to the public health and welfare or the

environment,

e. the Commission was given adequate notice by such owner

or operator of the release pursuant to Section 309 of

Title 17 of the Oklahoma Statutes, and

f. such owner or operator, to the extent possible, fully

cooperated with the Commission in responding to the

release.

A person seeking reimbursement who has not been in substantial

compliance with the applicable rules as required in subparagraph b

of this paragraph or who failed to give adequate notice as required

in subparagraph e of this paragraph will remain ineligible until all

corrective action ordered by the Commission has been accomplished

and all fines paid. Payment of fines and documentation of

corrective action shall be shown by a certification signed by the

Director of the Petroleum Storage Tank Division. The certificate

must state that all fines resulting from noncompliance have been

paid and any required corrective action has been completed and no

additional enforcement actions are required.

2. For reimbursement to any person, the following conditions

apply:

a. the person claiming reimbursement must be an eligible

person,

b. the person, to the extent possible, has fully

cooperated with the Commission, and

c. allowable costs for any corrective action must have

been incurred on or after December 23, 1988.

F. Except as otherwise provided by the Oklahoma Petroleum

Storage Tank Indemnity Fund, a reimbursement shall not be made to

any eligible person who has received or is eligible for payment or

reimbursement from any other state or federal agency or other third-

party payor for the corrective action taken or the damages or the

injuries associated with a release. If a state or federal agency or

other third-party payor does not fully compensate the eligible

person, then the eligible person may seek compensation for the

uncompensated amount from the Indemnity Fund.

G. 1. An eligible person shall be reimbursed from the

Indemnity Fund for allowable costs in excess of the copayment of one

percent (1%) of the reimbursable costs for the corrective action.

Copayments shall not exceed a maximum of Five Thousand Dollars

($5,000.00). The Indemnity Fund shall charge the eligible person

directly for an initial one-thousand-dollar copayment and thereafter

in one-thousand-dollar increments as warranted by the progressive

total case costs. When the total case cost is finalized, the

Oklahoma Statutes - Title 17. Corporation Commission Page 250

Petroleum Storage Tank Indemnity Fund shall reimburse the eligible

person any overpayment of the one-percent copayment. For releases

that occurred prior to June 4, 2004, eligible persons shall pay the

five-thousand-dollar deductible as a copayment which may be paid in

installments.

2. An impacted party whose on-site or off-site property has

been contaminated by a release who elects the procedure authorized

by this subsection shall not be required to remit copayments in

order to receive reimbursement from the Petroleum Storage Tank

Indemnity Fund. The impacted party or adjacent owner submits to the
sand-dollar deductible as a copayment which may be paid in

installments.

2. An impacted party whose on-site or off-site property has

been contaminated by a release who elects the procedure authorized

by this subsection shall not be required to remit copayments in

order to receive reimbursement from the Petroleum Storage Tank

Indemnity Fund. The impacted party or adjacent owner submits to the

jurisdiction of the Commission by applying for Indemnity Fund

reimbursement.

3. Reimbursements shall not exceed Two Million Five Hundred

Thousand Dollars ($2,500,000.00) per occurrence, and:

a. Four Million Dollars ($4,000,000.00) annual aggregate

for owners of one to one hundred storage tank systems,

or

b. Five Million Dollars ($5,000,000.00) annual aggregate

for owners of more than one hundred storage tank

systems.

The reimbursement limits in this paragraph shall not include funds

expended on city, county, state or political subdivision property

where the city, county, state or political subdivision is an

impacted party or adjacent property owner.

4. Reimbursement shall not be made from the Petroleum Storage

Tank Indemnity Fund pursuant to this section until the Administrator

has determined that the costs for which reimbursement is requested

were actually incurred and were reasonable.

H. The Petroleum Storage Tank Indemnity Fund shall cover

corrective action taken and other actual physical damage caused by

an eligible release. The Petroleum Storage Tank Indemnity Fund

shall also cover any medical injuries incurred as a result of the

eligible release to persons other than employees of the eligible

person of the storage tank system or their agents and independent

contractors retained to perform any such corrective action. The

Petroleum Storage Tank Indemnity Fund shall not be used to:

1. Recover payments for loss of time;

2. Recover payment of costs which may be associated with but

are not integral to corrective action such as the cost of

renovating, removing or disposing of storage tanks unless the

removing of any petroleum storage tanks, concrete, concrete

accessories, lines, dispensers or other site improvements is

necessary as required by a corrective action plan approved by the

Commission's regulatory program;

3. Pay for punitive damages from any civil action resulting

from the eligible release;

Oklahoma Statutes - Title 17. Corporation Commission Page 251

4. Recover costs for loss of business and taking of property

associated with the corrective action; or

5. Pay legal expenses.

I. The right to apply for reimbursement and the receipt of

reimbursement does not limit the liability of an owner or operator

for damages, injuries or the costs incurred as a result of an

eligible release.

J. The right to file the initial application, supplemental

claims, and resubmittals for reimbursement and the right to certify

that costs are true, correct and actually incurred shall not be

assigned to a person rendering services for corrective action on the

subject site.

K. Any person who prevails in an action brought pursuant to the

Oklahoma Petroleum Storage Tank Indemnity Fund to recover disallowed

claims upon an application, supplemental claim or resubmittal

requesting reimbursement shall be entitled to recover interest, the

costs of the action and attorney fees. Costs of the action shall

include filing fees, administrative costs, witness fees and expenses

related to the proceeding.

L. 1. In any case that has been determined to be eligible for

reimbursement from the Petroleum Storage Tank Indemnity Fund, a

property owner whose property has been contaminated by an eligible

release may remediate his or her own property and make direct

application to and receive reimbursement from the Petroleum Storage

Tank Indemnity Fund for any of the following:

a. the costs of investigation,

b. participation in the determination of activities to be

conducted upon the site,
oleum Storage Tank Indemnity Fund, a

property owner whose property has been contaminated by an eligible

release may remediate his or her own property and make direct

application to and receive reimbursement from the Petroleum Storage

Tank Indemnity Fund for any of the following:

a. the costs of investigation,

b. participation in the determination of activities to be

conducted upon the site,

c. corrective action, and

d. remediation of his or her property.

2. Reimbursement shall be subject to the same requirements as

requests for reimbursement made by the eligible person on such sites

and shall be handled in the same manner as other sites which have

adjacent release or overlapping or commingled plumes. The amount

reimbursed to the property owner and eligible person shall not

exceed the statutory limits of subsection G of this section.

M. In the event the Petroleum Storage Tank Indemnity Fund fails

to reimburse a claim as provided by this section, any person who

prevails in an action brought pursuant to the Oklahoma Petroleum

Storage Tank Release Indemnity Program to recover claims disallowed

by an administrative action of the Oklahoma Petroleum Storage Tank

Indemnity Fund upon an application, supplemental claim or

resubmittal requesting reimbursement shall be entitled to receive

interest upon such claim at the rate provided for in subsection I of

Section 727 of Title 12 of the Oklahoma Statutes.

N. 1. Claims for reimbursement pursuant to the Petroleum

Storage Tank Indemnity Fund must be made within two (2) years of

Oklahoma Statutes - Title 17. Corporation Commission Page 252

June 9, 1998, or two (2) years after site closure, whichever is

later.

2. Eligible persons should be encouraged to submit claims for

reimbursement as the costs are incurred and in the order they are

incurred. However, the right to submit a claim or the time during

which to submit a claim for reimbursement shall not be limited or

restricted except as provided in this subsection.

3. All claims, including but not limited to resubmitted claims,

shall be evaluated by the Petroleum Storage Tank Indemnity Fund

under the system of evaluation employed by the Indemnity Fund at the

time the costs were incurred.

O. 1. The Petroleum Storage Tank Indemnity Fund is authorized

to enter into contracts for site remediation or corrective action

which may be performance-based. Parties to such contracts shall be

the eligible person, the off-site owner, the impacted party, the

licensed environmental consultant and the Petroleum Storage Tank

Indemnity Fund which may guarantee the remediation or corrective

action. Each party must execute the contract before it is

effective. Costs of equipment used in the performance-based

contract may be reimbursed separate and apart from the performance-

based contract as determined by the Administrator.

2. If:

a. an owner or operator is not available and a storage

tank system has made a release into the environment,

or

b. where there is a suspicion of a release onto any

property where tanks are located and/or onto property

proximate thereto, or where tanks are located and a

site assessment is necessary to confirm a release or

perform tank closure, and

c. such property is located within the limits of the

town, city or political subdivision,

the town, city or political subdivision may obtain assignments from

property owners in order to assume the rights of an eligible party

for the purpose of reimbursement of the costs associated with the

assessment, investigation and remediation of any site.

3. The Administrator of the Petroleum Storage Tank Indemnity

Fund may also designate a town, city or political subdivision to be

an eligible party for the purpose of reimbursement of the costs

associated with the assessment, investigation and remediation of any

site.

4. If the town, city or political subdivision has title to the
ith the

assessment, investigation and remediation of any site.

3. The Administrator of the Petroleum Storage Tank Indemnity

Fund may also designate a town, city or political subdivision to be

an eligible party for the purpose of reimbursement of the costs

associated with the assessment, investigation and remediation of any

site.

4. If the town, city or political subdivision has title to the

property or is the recipient of proceeds from a sale or auction of

the property, the town or city shall reimburse the Petroleum Storage

Tank Indemnity Fund for any required copayment within three (3)

years from the closure of the case.

Oklahoma Statutes - Title 17. Corporation Commission Page 253

5. Terms of pay-for-performance contracts shall include, but

not be limited to, the total amount to be paid for completion of the

remediation or corrective action provided for by the contract and

the length of time necessary to implement and complete the

remediation or corrective action. Performance payments under pay-

for-performance contracts shall be based upon the actual reduction

of contamination upon the site being remediated. For those sites

upon which it is estimated that remediation will take more than six

(6) months and will require the installation and operation of a

mechanical remediation system, payments under such contracts for the

remediation to be accomplished by such system shall be as follows:

a. twenty percent (20%) of the total contract price for

the first twenty-five-percent reduction in

contamination to be accomplished by such system,

b. an additional twenty percent (20%) of the total

contract price, for a total of forty percent (40%) for

the next twenty-five percent (25%), for a total fifty-

percent reduction in contamination to be accomplished

by such system,

c. an additional twenty percent (20%) of the total

contract price, for a total of sixty percent (60%) for

the next first twenty-five percent (25%), for a total

seventy-five-percent reduction in contamination to be

accomplished by such system,

d. an additional twenty percent (20%) of the total

contract price, for a total of eighty percent (80%)

for the next first twenty-five percent (25%), for a

total one-hundred-percent reduction in contamination

to be accomplished by such system, and

e. with a final payment of the remaining twenty percent

(20%) of the contract price to be paid after the site

remains clean for six (6) months.

6. Any environmental consultant or company who fails to

complete corrective action or remediation as provided in a pay-for-

performance contract, or who has failed or fails, before requesting

and receiving the first payment under a pay-for-performance

contract, to install equipment upon a site which was proposed or

which was to be installed whenever possible, or who in any other

manner materially breaches a pay-for-performance contract shall be

prohibited from entering into another pay-for-performance contract

or purchase order with the Indemnity Fund for a period of three (3)

years and shall forfeit any rights to or interest in the equipment

to the Indemnity Fund if the equipment was:

a. paid in advance by the Indemnity Fund, and

b. allocated for a pay-for-performance site.

P. The Oklahoma Petroleum Storage Tank Indemnity Fund is

authorized to enter into purchase orders for the performance of

Oklahoma Statutes - Title 17. Corporation Commission Page 254

corrective action or various tasks or scopes of work to be performed

upon a site as is prudent. Each purchase order shall establish an

amount to be paid for the completion of a particular corrective

action, task or scope of work. Such purchase orders shall be

entered into between the Petroleum Storage Tank Indemnity Fund and

the eligible person or his or her environmental consultant. The

Indemnity Fund and the eligible person or his or her consultant

shall conduct negotiations in good faith. Rules promulgated to
stablish an

amount to be paid for the completion of a particular corrective

action, task or scope of work. Such purchase orders shall be

entered into between the Petroleum Storage Tank Indemnity Fund and

the eligible person or his or her environmental consultant. The

Indemnity Fund and the eligible person or his or her consultant

shall conduct negotiations in good faith. Rules promulgated to

implement this subsection shall not place any restrictions upon the

negotiation process by limiting the number of revisions which may be

submitted or restricting the time period during which they may be

submitted.

Q. In evaluating and determining the amount of reimbursement to

be paid upon a claim, the Indemnity Fund shall consider the

reasonable cost of the task or scope of work that was reasonable and

completed and shall be based upon standard billing rates and

practices for environmental services as normally billed by such

professionals, contractors or other service providers. If the

overall total cost of performing a particular task or scope of work

is reasonable, the Indemnity Fund shall fully reimburse the total

cost of the particular task or scope of work performed.

R. 1. When a claim submitted for first reimbursement

consideration is disallowed in whole or in part by the Administrator

of the Petroleum Storage Tank Indemnity Fund, an applicant shall

have ninety (90) days to resubmit the disallowed claim for

reconsideration. Unless otherwise authorized by the Administrator

of the Petroleum Storage Tank Indemnity Fund, resubmittal of a claim

that has been disallowed in whole or in part shall only be allowed

one time.

2. Except as otherwise provided by this paragraph, if the

disallowed claim is not resubmitted within ninety (90) days from the

date of the disallowance, the claim shall no longer be eligible for

reimbursement from the Petroleum Storage Tank Indemnity Fund. An

action by the applicant disputing a disallowed claim shall be

commenced within one (1) year of the date of the last disallowance

and shall be brought for an administrative hearing before the

Commission.

3. Any applicant that, prior to November 1, 2004, has incurred

a disallowance of a claim in whole or in part and has not

resubmitted the disallowed claim for further consideration has until

February 28, 2005, to resubmit the disallowed claim for such

consideration. After February 28, 2005, the claim shall be deemed

denied and shall no longer be eligible for reconsideration or

reimbursement from the Petroleum Storage Tank Indemnity Fund.

4. The Director of the Petroleum Storage Tank Division may

consider hardship exceptions such as, but not limited to, active

military duty, to the time limits contained in this subsection.

Oklahoma Statutes - Title 17. Corporation Commission Page 255