§22-35-4. Alabama Underground and Aboveground Storage Tank Trust Fund.

There is hereby created the Alabama Underground and Aboveground Storage Tank Trust Fund, hereinafter referred to as the "fund," to be administered by the Secretary-Treasurer of the Retirement Systems of Alabama. The fund shall be used by the department as a revolving fund for carrying out the purposes of this chapter. The fund is not an insurance company and the laws relating to the conduct of business in this state by an insurance company do not apply to the fund. A decision that underground or aboveground storage tanks are ineligible for benefits under the fund does not expose the fund, the director, department, or commission to a claim of bad faith as such terms are used in general insurance law. Further, in no event shall combined claims against the fund for payment of response actions and third-party claims exceed the per occurrence indemnification limit set by the commission. Under no circumstances shall monies from the fund be expended to pay punitive damages. To the fund shall be credited all tank fee and Underground and Aboveground Storage Tank Trust Fund charge revenues levied, collected, and credited pursuant to this chapter. Charges against the fund shall be made in accordance with the provisions of this chapter.

(1) Whenever in the director's determination incidents of soil or water contamination related to the storage of motor fuels in underground storage tanks discovered and reported to the department on or after October 1, 1988, and in aboveground storage tanks discovered and reported to the department on or after August 1, 1993, may pose a threat to the environment or the public health, safety, or welfare, and the owner or operator of the underground or aboveground storage tank has been found to be in substantial compliance, the department shall obligate moneys available in the fund to provide for:

a. Investigation and assessment of contamination sites;

b. The interim replacement and permanent restoration of potable water supplies;

c. Rehabilitation of contamination sites, which may consist of cleanup of affected soil and groundwater, using cost effective alternatives that are technologically feasible and reliable, and that provide adequate protection of the public health, safety, and welfare and minimize environmental damage, in accordance with the site selection and cleanup criteria established by the department, except that nothing herein shall be construed to authorize the department to obligate funds for payment of costs which may be associated with, but are not integral to, site rehabilitation, such as the cost for retrofitting or replacing underground and aboveground storage tanks. The moneys expended from the fund for any of the above approved costs shall be spent only up to such sum as will cause the Resource Conservation and Recovery Act, Subtitle I, the Superfund Amendments and Reauthorization Act of 1986, and any other federal laws governing disbursement of federal funds for cleanup and/or third-party claims to come into effect. The total amount of reimbursement available from the fund as a result of a release from underground or aboveground tanks shall not exceed under any circumstance the per occurrence indemnification limit set by the commission, less the applicable deductible. The indemnification limit of the fund shall be determined by the commission upon recommendation of the Trust Fund Management Board, on an annual basis, which shall not be greater than two million dollars ($2,000,000), nor less than one million dollars ($1,000,000). Provided that, beginning May 20, 2009, this amount shall remain at its current level of one million dollars ($1,000,000) and may be changed, if at all, for the first time for the year beginning October 1, 2009. If the indemnification limit of the fund is increased, such increased limit shall be available for response action costs or third party claims, or both, as to those existing sites that are eligible for trust fund benefits, but such increased limits shall not be available to existing sites where the department has previously issued a No Further Action Letter.

(2) In addition, the department shall obligate moneys available in the fund for payments of judgments or settlements for third-party claims entered against the fund under this chapter.

(3) Whenever costs have been incurred by the department for taking response action or enforcement action with respect to the release of motor fuels from an underground or aboveground storage tank, or the department has expended funds from the fund created by this chapter, the owner of the underground storage tank shall be liable to the department for such costs if such release was discovered or reported prior to October 1, 1988, and the owner of the aboveground storage tank shall be liable to the department for such costs if such release was discovered or reported prior to August 1, 1993, or if such owner or operator was not in substantial compliance on the date of discovery of the release of motor fuels which necessitates the cleanup or such owner or operator fails to maintain substantial compliance thereafter; otherwise liability is limited to the provisions contained in Section 22-35-7.

(4) The indemnification limit of the fund with respect to satisfaction of third-party claims shall be the following amounts:

a. For owners or operators of motor fuels underground and aboveground storage tanks that are located at petroleum marketing facilities, or that handle an average of more than 10,000 gallons of motor fuels per month based on annual throughput for the previous calendar year; one million dollars ($1,000,000) per occurrence.

b. For all other owners or operators of motor fuels underground and aboveground storage tanks; five hundred thousand dollars ($500,000) per occurrence.

c. For owners or operators of 1 to 100 motor fuels underground and aboveground storage tanks; one million dollars ($1,000,000) annual aggregate.

d. For owners or operators of 101 or more motor fuels underground and aboveground storage tanks; two million dollars ($2,000,000) annual aggregate.

(Acts 1988, No. 88-378, p. 557, §4; Acts 1993, No. 93-628, §4; Acts 1993, 1st Ex. Sess., No. 93-891, p. 165, §1; Act 2002-495, p. 1265, §1; Act 2003-483, 2nd Sp. Sess., p. 1486, §1; Act 2009-589, p. 1734, §1.)