§22-35-5. Fee; withdrawals; disposition of funds; liability for clean-up costs; audit.

(a) Every owner of an underground or aboveground storage tank as defined in this chapter shall pay an Underground and Aboveground Storage Tank Trust Fund fee as established by the provisions of this chapter to be paid to the department. During the first year next following October 1, 1988, the amount of the annual Underground and Aboveground Storage Tank Trust Fund fee shall be one hundred dollars ($100). Thereafter, the commission, upon recommendation of the management board, shall set such an amount not to exceed one hundred fifty dollars ($150) per year per regulated tank. Should the fund become depleted due to claims being greater than amounts provided by tank fees, the commission shall be empowered to make special assessments of tank fees to protect the financial integrity of the fund. Provided the total tank fees and special assessments for any fiscal year do not exceed one hundred fifty dollars ($150) per regulated tank. The failure to pay Underground and Aboveground Storage Tank Trust Fund fees within the time prescribed by the department shall make the owner or operator of such underground or aboveground storage tank liable for a late charge penalty in an amount not to exceed one hundred dollars ($100) per tank for each day such payment is delinquent, subject to the discretion of the director. The director, for good cause shown, may abate all or part of the penalty. Any efforts to collect delinquent tank fees must be instituted within two years of the date when the fees first become delinquent, or their collection shall be barred forever.

(b) An Underground and Aboveground Storage Tank Trust Fund charge is imposed on the first withdrawal from bulk in this state. However, this charge shall not be imposed upon any withdrawal from bulk of fuel oil to be used in the generation of electricity.

(1) Each operator of a bulk facility from which a first withdrawal from bulk is made shall, on the first withdrawal from bulk, either retain or collect from the person who ordered the fuel a fee, as determined by the commission upon recommendation of the Trust Fund Management Board, on an annual basis, based on invoiced gallons in an amount which shall be not greater than $0.02 per gallon, nor less than $0.003 per gallon. Provided that, beginning May 20, 2009, the per gallon fee shall remain at the current level of $0.01 per gallon and may be increased, if at all, for the first time for the year beginning October 1, 2009. Provided further, that the fee shall be set at the same time each year, and the commission upon the recommendation of the management board will determine the amount of the fee per gallon to be levied upon the first withdrawal of motor fuel from bulk. Once determined, the rate shall become effective on the first day of the third month following the month in which the Department of Revenue is first notified of any change in fee.

When a withdrawal from bulk occurs outside of this state, for delivery, by means of cargo tank, of motor fuel inside the state, an Underground and Aboveground Storage Tank Trust Fund charge is imposed on the delivery in this state. The owner of such motor fuel being delivered shall be responsible for the collection and remittance of the applicable Underground and Aboveground Storage Tank Trust Fund charge.

(2) Each operator of a bulk facility from which a first withdrawal from bulk is made and importers of motor fuels into the State of Alabama as identified in subsection (b)(1) above, shall file an application with the Department of Revenue for a permit to deliver motor fuel into a cargo tank destined for delivery into storage tanks, regardless of whether these tanks are exempted from the definition of underground or aboveground storage tank hereinabove. All applications shall be filed utilizing a form furnished by the Department of Revenue. A permit issued under this subsection is valid on and after the date of its issuance and until the permit is surrendered by the holder or canceled by the Department of Revenue.

(3) All invoices or transaction statements issued by operators of bulk facilities for the transfer of motor fuels into a cargo tank shall clearly indicate whether or not the transaction was a withdrawal from bulk as defined herein.

(4) Each operator of a bulk facility from which a first withdrawal from bulk is made shall list, as a separate line item on an invoice, the amount of the fees due under this section, and on or before the twentieth day of the month following the end of each calendar month, file a report with the Department of Revenue and remit the amount of fees required to be collected or paid during the preceding month. The reports shall be filed on a form furnished by the Department of Revenue. The Department of Revenue shall deposit in the trust fund immediately all Underground and Aboveground Storage Tank Trust Fund charge revenues collected by it.

(5) All invoices, reports, and any other records required under this section as well as rules adopted by the department and the Department of Revenue pursuant to this section, or copies thereof, shall be retained for a period of four years after the date on which the document is prepared. The Department of Revenue shall have authority to audit the records of all persons required to collect and remit the Underground and Aboveground Storage Tank Trust Fund charge established herein in order to ensure proper enforcement thereof.

(6) In the event an owner or operator seeks to provide evidence of financial responsibility under the Resource Conservation and Recovery Act, Subtitle I, the Superfund Amendments and Reauthorization Act of 1986 and other federal laws, by means other than participation in the Alabama Underground and Aboveground Storage Tank Trust Fund, the owner or operator shall continue to pay the trust fund charge as to all underground and aboveground storage tanks registered in Alabama when such owner or operator has a trust fund eligible site with current and ongoing investigative or remedial activities at a trust fund site of such owner or operator.

Sites determined to be trust fund eligible at the time the subject tanks are taken out of service will remain trust fund eligible, without resuming payments to the fund.

(c) The proceeds from the tank fees and Underground and Aboveground Storage Tank Trust Fund charge imposed by this chapter shall be deposited into the Alabama Underground and Aboveground Storage Tank Trust Fund established in Section 22-35-4. The unobligated balance of the fund shall be invested by the Retirement Systems of Alabama in its sole discretion, for the benefit of the fund.

(d) This fund shall be used for the purposes set forth in this chapter only for releases discovered and reported to the department on or after October 1, 1988, with regard to underground storage tanks, and only for releases discovered and reported to the department on or after August 1, 1993, with regard to aboveground storage tanks in service as of August 1, 1993, and for no other governmental purposes, nor shall any portion hereof ever be available to borrow from by any branch of government; it being the intent of the Legislature that this fund and its increments shall remain intact and inviolate for the purposes set out in this chapter. Any interest or earnings on the fund shall be credited only to the fund.

(e) Moneys held in the fund established under this chapter shall be disbursed for the following purposes:

(1) Payments shall be made to third parties who bring suit against the fund and the owner or operator of an underground or aboveground motor fuel storage tank who is in substantial compliance as stated in this chapter and such third party obtains a final judgment or a settlement approved by the Attorney General in that action enforceable in this state. The owner or operator above stated shall pay the first five thousand dollars ($5,000) of the judgment or settlement and after that payment has been made, the fund will pay the remainder of the judgment or settlement up to the indemnification limit established under this chapter. With respect to the owner or operator of an aboveground motor fuel storage tank who is in substantial compliance, the owner or operator shall pay the first ten thousand dollars ($10,000) of the judgment or settlement and after that payment has been made, the fund will pay the remainder of the judgment or settlement up to the indemnification limit established under this chapter. Under no circumstances shall the fund be responsible for paying punitive damages. The Attorney General of the State of Alabama is hereby responsible to appear in the suit for the fund and the fund is a necessary party in any suit that is brought by any third party which would allow that third party to collect from this fund; and the fund must be made a party to the initial proceedings. The costs of defending these suits by the Attorney General or those assistants employed by the department, or appointed by the Attorney General to assist shall be recovered from the fund. Owners and operators shall be separately responsible for defending third-party claims against them, and shall cooperate and coordinate such defense with the fund. The costs of defending an owner or operator who is in substantial compliance as stated in this chapter against third-party claims shall be recovered from the fund pursuant to such guidelines and procedures and subject to such limits as the Alabama Underground and Aboveground Storage Tank Trust Fund Management Board shall provide. The amount of money in this fund, shall not be admissible in evidence in any trial where suit is brought when the judgment rendered could affect the fund. In any litigation asserting a third-party claim, the court shall not make a determination of substantial compliance for the purpose of establishing participation in the fund, nor shall the court submit such question for jury determination; rather the determination of substantial compliance shall be made by the director. In no event shall combined claims against the fund for response actions and third-party claims exceed the per occurrence indemnification limit set by the commission.

(2) Payments as approved by the department shall be made in reasonable amounts to approved response action contractors when vouchers are submitted to the Secretary-Treasurer of the Retirement Systems of Alabama from the director requesting payment. Response action contractors shall submit proposals for response action services for approval to the director. The department shall approve or disapprove that portion(s) of such proposals dealing with the scope of remedial action or clean-up work within 120 days of receipt of the proposal. Response action contractors may act on proposals as if approved by the department, if the department does not notify the response action contractor that the scope of work recommended in the proposal is disapproved within 120 days of receipt of the proposal. The director shall pay for response action services conducted by a response action contractor consistent with any proposal that was not disapproved within 120 days of receipt by the department.

(f) Payments from the fund may be obtained by following this procedure:

Under subdivision (e)(1) of this section by filing an application with the department attaching the original or a certified copy of the final judgment, or settlement approved by the Attorney General, together with proof of payment of the first five thousand dollars ($5,000), or in connection with judgments against owners or operators of aboveground tanks, with proof of payment of the first ten thousand dollars ($10,000).

(g) Nothing in this chapter shall establish or create any liability or responsibility on the part of the department or the State of Alabama to pay any clean-up costs or third-party claims from any source than the fund created by this chapter, nor shall the department or the State of Alabama have any liability or responsibility to make any payments for clean-up costs or third-party claims if the fund created herein is insufficient to do so. In the event the fund is insufficient to make the payments at the time the claim is filed, such claims shall be paid in the order of filing at such time as moneys are paid into the fund.

(h) The fund shall be audited annually by the Department of Examiners of Public Accounts.

(i) The records and information required to be filed with the Department of Revenue pursuant to this section and this chapter shall be available for public inspection.

(Acts 1988, No. 88-378, p. 557, §5; Acts 1993, No. 93-628, p. 1062, §5; Acts 1993, 1st Ex. Sess., No. 93-891, p. 165, §1; Acts 1995, No. 95-255, p. 427, §1; Act 2002-495, p. 1265, §1; Act 2003-483, 2nd Sp. Sess., p. 1486, §1; Act 2009-589, p. 1734, §1.)