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(continued)
(C) A claimant to whom the Division grants a waiver pursuant to subdivision (B)2. shall obtain a level of financial responsibility in an amount twice as great as the amount that the claimant is otherwise required to obtain pursuant to section 25299.32 of the Health and Safety Code. The Division may waive the requirements of this subdivision if the claimant can demonstrate that the conditions specified in subdivisions (B)2.a., b., c., and d. above were satisfied before the release resulting in contamination. That demonstration may be made through a certification issued by the permitting agency based on site and underground storage tank tests at the time of permit application, or in any other manner acceptable to the Division.
(3) The claimant has complied with any applicable financial responsibility requirements.

(4) On or after January 1, 1988, the claimant was required to perform corrective action pursuant to Health and Safety Code, division 20, chapter 6.7, Water Code, division 7, or section 25299.37 of the Health and Safety Code. If the claimant knew of the unauthorized release of petroleum that is the subject of the claim before January 1, 1988, and failed to initiate corrective action on or before June 30, 1988, then the claimant may not file a claim against the Fund.
(5) Any corrective action performed before December 2, 1991, was performed in accordance with Health and Safety Code, division 20, chapter 6.7 and Water Code, division 7. Any corrective action performed on or after December 2, 1991, was performed in accordance with California Code of Regulations, title 23, division 3, chapter 16, article 11. Any corrective action performed was performed in accordance with the written or oral directives of the appropriate regulatory agency. If oral directives are relied upon, the claimant shall provide a written statement from the regulatory agency certifying that the directives were issued or other verification as may be acceptable to the Division.
(6) The claimant paid all currently due fees, interest, and penalties imposed pursuant to Health and Safety Code, division 20, chapter 6.75, article 5 (commencing with section 25299.40) and Revenue and Taxation Code, division 2, part 26 (commencing with section 50101) for the underground storage tank that is the subject of the claim.
(b) An owner or operator of a residential tank for which a permit is not required under section 25284 of the Health and Safety Code shall be entitled to reimbursement for eligible corrective action, regulatory technical assistance, and third party compensation costs only if the conditions set forth in subdivisions (a)(1) and (3) of this section are met, and if any corrective action performed was required to be performed by the regulatory agency and was performed in accordance with the written or oral directives of the regulatory agency. If oral directives are relied upon, the claimant shall provide a written statement from the regulatory agency certifying that the directives were issued or shall provide such other verification as may be acceptable to the Division.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.37(a)-(c), 25299.54, 25299.57 and 25299.58, Health and Safety Code.




s 2811.1. Claim Priority Classes.
(a) The Board will assign each acceptable claim to one of the following priority classes:
(1) Class A -Claims by owners of residential tanks as defined in article 2 of this chapter.
(2) Class B -Claims by owners and operators of underground storage tanks who meet the definition of a small business as defined in article 2 of this chapter, and cities, counties, districts, and nonprofit organizations that have total annual revenues of not more than $7,000,000. In determining the amount of a nonprofit organization's annual revenues, only those revenues directly attributable to the particular site which is the subject of the claim will be calculated.
(3) Class C -Claims by owners and operators of underground storage tanks who own or operate a business that employs fewer than 500 full-time and part-time employees, is independently owned and operated, and is not dominant in its field of operation, and claims by cities, counties, districts, and nonprofit organizations that have less than 500 full-time and part-time employees. In determining the number of employees employed by a nonprofit organization, only those full-time and part-time employees employed at the site that is the subject of the claim will be calculated.
(4) Class D -Claims by all other owners and operators of underground storage tanks.
(b) For purposes of assignment to a priority class, the Board will base the priority of a claim on the lowest priority appropriate for any claimant, including any joint claimant, the owners and operators at the time of discovery of the unauthorized release, and the owners and operators at the time of application to the Fund, unless the claimant can demonstrate to the satisfaction of the Division that such treatment would be inconsistent with the priority scheme mandated by section 25299.52, subdivision (b) of the Health and Safety Code.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.52(a)-(b) and 25299.54(e)(1)-(2), Health and Safety Code.




s 2811.2. Fund Application Requirements; Reimbursement Requests for Corrective Action Costs.
A Fund application for reimbursement of corrective action costs shall contain the following:
(a) the name of the claimant, a correspondence address, a telephone number or numbers where the claimant can be contacted during normal business hours, and a federal tax identification number or social security number;

(b) if a joint claim is submitted by multiple owners and operators, the name, correspondence address, telephone number or numbers, tax identification number or social security number of each claimant, and the dates during which each claimant owned or operated the underground storage tank or residential tank that is the subject of the claim;
(c) if the claimant designates a representative to be a co-payee for payment from the Fund, the name, address, and telephone number of the co-payee;
(d) the site address or a description of the site where the underground storage tank or residential tank that is the subject of the claim is located, and a site map drawn to scale which includes a north arrow and distances relative to the nearest public roads;
(e) any identification number assigned by a regulatory agency, and the underground storage tank storage fee account number assigned by the California Board of Equalization, if applicable;
(f) a brief description of the background of the claim, to the best of the claimant's knowledge, including the following:

(1) if the claimant is an owner, the date on which the claimant acquired the underground storage tank or residential tank that is the subject of the claim, the person from whom the claimant acquired the underground storage tank or residential tank and, if the underground storage tank or residential tank has been transferred to another person, the date of transfer and the person who acquired the underground storage tank or residential tank;
(2) if the claimant is an operator, the dates during which the claimant operated the underground storage tank or residential tank that is the subject of the claim, the person who owned the underground storage tank or residential tank during such periods, including the person's last known correspondence address and telephone number, the name and address of the current owner of the underground storage tank or residential tank involved, and the priority class that would be appropriate for the current owner if the owner were to file a claim against the Fund;
(3) if the claimant owns the site at which the underground storage tank or residential tank that is the subject of the claim is located, the date on which the claimant acquired the site, the person from whom the claimant acquired the site, and if the site has been transferred, the date of sale and the person who acquired the underground storage tank or residential tank.

(4) the capacity of the underground storage tanks or residential tanks located at the site and the substances that have been stored therein;
(5) the date on which the claimant first learned of the unauthorized release;
(6) the date on which any corrective action was initiated and the current status of any corrective action in progress;
(7) if corrective action on the site is complete, the date on which such action was completed; and
(8) a brief description of the corrective action which was undertaken;
(g) a statement of the priority class sought by the claimant and the following documentation to support assignment to that priority class:
(1) for Priority Class A, documentation showing that the tank meets the definition of "residential tank" set forth in section 2804;
(2) for Priority Class B, copies of the claimant's federal tax returns. If the claimant is a city, county, or district, a copy of the Annual Report of Financial Transactions as submitted to the State Controller's Office for the latest fiscal year. If the claimant is a nonprofit organization, a copy of the annual fiscal report filed with the Registry of Charitable Trust or a copy of the federal tax records for the latest fiscal year;
(3) for Priority Class C, documentation identifying the number of full-time and part-time employees (e.g., copy of an Employment Development Department form DE6);
(h) a statement of the total amount of costs for which reimbursement is sought;
(i) a certification that all corrective action costs claimed were incurred for work performed after January 1, 1988;
(j) a certification that the claimant meets all applicable eligibility requirements set forth in section 2811 of this chapter;
(k) an agreement by the claimant that the Board may conduct an audit of any claim honored by the Board and that the claimant will reimburse the Board for any disallowance of costs occasioned by such an audit. The claimant must agree to retain all records pertaining to the claim for a period of at least three years after final payment by the Fund, and to provide the records to the Board upon request. The three-year period shall be extended until the completion of any audit in progress; and
(l) a copy of any agreement entered into by a claimant where a person agrees to incur costs on behalf of the claimant or where the claimant assigns Fund reimbursement rights to a person;
(m) if a claimant has entered into the agreement described in subdivision (l), documentation that confirms the date of the agreement (e.g., a sworn statement by all parties to the agreement);
(n) any other information or supporting documentation reasonably required by the Division to determine the eligibility, reimbursable amount due, or appropriate priority class of the claim.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.37(a), (b) and (e), 25299.52(a)-(b), 25299.54(a)-(e), 25299.55, 25299.57(a), (b), (d) and (f), 25299.58(b)(1), (3) and (4) and 25299.59(c), Health and Safety Code.




s 2811.3. Fund Application Requirements; Reimbursement Requests for Third Party Compensation Costs.
A Fund application for reimbursement of third party compensation costs shall contain the following:
(a) the information described in section 2811.2, subdivisions (a) through (h) and, if applicable, subdivisions (l) and (m);
(b) a certification that the claimant meets all applicable eligibility requirements set forth in section 2811 of this chapter;
(c) a certified or verified copy of the judgment, court-approved settlement, or arbitration award pursuant to which the claimant seeks reimbursement;
(d) an agreement by the claimant that the Board may conduct an audit of any claim honored by the Board and that the claimant will reimburse the Board for any disallowance of costs occasioned by such an audit. The claimant must also agree to retain all records pertaining to the claim for a period of at least three years after final payment on the claim, and to provide the records to the Board upon request. The three-year period shall be extended until the completion of any audit in progress.
(e) any other information or supporting documentation reasonably required by the Division to determine the eligibility, reimbursable amount due, and appropriate priority class of the claim.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.37(a), (b) and (e), 25299.52(a)-(b), 25299.54(a)-(d), 25299.55, 25299.57(a), (b), (d) and (f), 25299.58 and 25299.59(c), Health and Safety Code.





s 2811.4. Pre-Approval of Corrective Action Proposals or Bids; Assistance with Contractor and Consultant Selection.
(a) Where a claimant seeks pre-approval of a proposal or bid for preparing a workplan or corrective action plan as specified in the California Code of Regulations, title 23, division 3, chapter 16, article 11, the claimant shall submit copies of all proposals or bids received for preparing the workplan or corrective action plan.
(b) Where a claimant seeks pre-approval of corrective action proposals or bids for implementing a workplan or corrective action plan, the claimant shall submit the following:
(1) a copy of the workplan or corrective action plan prepared as specified in the California Code of Regulations, title 23, division 3, chapter 16, article 11;
(2) a copy of a letter or other written materials that demonstrate to the Division's satisfaction that the appropriate regulatory agency has directed that a workplan or corrective action plan be prepared, and that the regulatory agency has concurred with the workplan or corrective action plan;
(3) copies of all proposals or bids that the claimant received from contractors or consultants for conducting the work specified in the workplan or corrective action plan. If the claimant has obtained fewer than three proposals or bids, the claimant must submit a written request that the Division waive the three bid requirement pursuant to section 2812.1 of this chapter. The request must include an explanation as to why the three bid requirement is unnecessary, unreasonable or impossible to comply with under the circumstances pertaining to the claim; and

(4) other information the Division deems necessary.
(c) The Division shall approve or disapprove as reasonable and necessary the proposals or bids submitted for preparing or implementing the specified workplan or corrective action plan within 30 days after the date a request is received. If the Division disapproves a request for pre-approval or fails to act within 30 days after receiving the request, the claimant may petition the Board for review using the procedures set forth in article 5 of this chapter.
(d) Where a claimant requests assistance in the selection of contractors and consultants, the Division shall provide assistance with the following:
(1) identification of potential contractors and consultants;
(2) preparation of requests for statements of qualifications from potential contractors and consultants;
(3) comparison and evaluation of the qualifications of contractors and consultants;
(4) preparation of invitations for obtaining estimates and bids from contractors and consultants; and
(5) comparison of proposals and bids.
(e) When providing assistance to claimants pursuant to subdivision (d) of this section, the Division may not recommend, approve, or disapprove consultants or contractors. The responsibility for procuring, managing, and dismissing consultants and contractors is the sole responsibility of the claimant.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.37, 25299.54(a)-(e), 25299.55, 25299.57, 25299.58(b)(1), (3)-(4) and 25299.59(c), Health and Safety Code.





s 2812. General Procedures for Reimbursement.
(a) The Board will issue eligible claimants a letter of commitment that will obligate funds for eligible corrective action costs, regulatory technical assistance costs, third party compensation costs, or any combination of the foregoing. Issuance of a letter of commitment does not guarantee that the costs claimed in the application are eligible or will be reimbursed by the Fund.
(b) After being issued a letter of commitment, a claimant may submit a request for reimbursement of costs incurred to date.
(c) A claimant may submit reimbursement requests on an on-going basis for eligible costs provided that the requests are for $10,000 or more, and not made more than once a month except for final payment.
(d) Reimbursement requests must include invoices and auxiliary documentation that demonstrate to the Division's satisfaction that the corrective action and regulatory technical assistance costs claimed by a claimant are eligible. Invoices must include, at a minimum, all of the following:
(1) a brief description of the work performed;
(2) the date when the work was performed;
(3) the consultant's or contractor's name and address;
(4) the name or initials of the person performing the work;
(5) the job classification or title and hourly rate of the person performing the work;

(6) the hours charged for each task per day;
(7) the cost amount of the work performed;
(8) if the invoice is for telephone calls or meetings and is submitted to support a request for reimbursement of regulatory technical assistance costs, then the invoice must identify the subject of the telephone calls or meetings and the person contacted; and
(9) if the invoice identifies typical overhead costs (such as clerical support, copying costs, postage costs, and telephone costs) as distinct costs, then documentation should be submitted explaining why these costs are not included in the billed rate.
(e) A claimant may name a designated representative as a co-payee for payments from the Fund. In such cases, the Board will issue payments jointly to the claimant and the designated representative.
(f) Within 60 days of the receipt of a properly documented reimbursement request, the Board will pay for reasonable and necessary costs or inform the claimant of the Board's basis for rejecting the costs.
(g) Within 30 days of receipt of reimbursement from the Fund a claimant must pay all reimbursed costs incurred by the claimant, but not yet paid. If a claimant has not paid such costs within 30 days, the claimant shall return the unpaid funds to the Board.
(h) In the event of an overpayment of a claim, the claimant shall repay the overpayment within 20 days of request as provided by Government Code section 12419.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.37(d), 25299.55, 25299.56 and 25299.57, Health and Safety Code.




s 2812.1. Compliance with Laws; Bid Requirements.
(a) Claimants must follow applicable state laws and regulations in procuring consultant and contractor services and must ensure that such services are obtained from qualified firms at a reasonable cost and that the costs are necessary.
(b) Claimants must obtain at least three written competitive bids with detailed cost estimates that include unit prices and quantities for corrective action work contracted for on or after December 2, 1991, and to be performed by licensed contractors within the meaning of Business and Professions Code, division 3, chapter 9 (commencing with section 7000). Claimants must obtain at least three written proposals with detailed cost estimates that include unit prices and quantities for corrective action work contracted for on or after December 2, 1991, and to be performed by professional geologists within the meaning of Business and Professions Code, division 3, chapter 12.5 (commencing with section 7800) or by professional engineers within the meaning of Business and Professions Code, division 3, chapter 7 (commencing with section 6700). The requisite bids or proposals must conform to the workplans and corrective action plans prepared pursuant to California Code of Regulations, title 23, division 3, chapter 16, article 11.
(c) Local governmental entities shall comply with applicable public contract requirements including the requirements of Public Contract Code, division 2, part 3 (commencing with section 20100).
(d) Claimants are not required to submit proposals or bids when they file a Fund application, but the Fund will not normally reimburse claimants for any work for which proposals or bids are required until the costs for which reimbursement is requested are supported by at least three proposals or bids. The Fund may waive the three-bid or -proposal requirement if the Division finds that the requirement is unnecessary, unreasonable, or impossible to comply with under the circumstances pertaining to a particular claim.
(e) Where this chapter requires a claimant to submit proposals or bids, the Board will limit reimbursement from the Fund to the amount of the lowest proposal or bid submitted to the claimant for the work involved unless:
(1) the Division determines justification exists for rejection of the lowest proposal or bid; or
(2) the costs of the work involved are reasonable and necessary, and the work involved was performed by or under the direction of professional engineers within the meaning of Business and Professions Code, division 3, chapter 7 or professional geologists within the meaning of Business and Professions Code, division 3, chapter 12.5.
(f) Where a claimant incurs increased costs or changes the scope of work covered by the awarded proposal or bid, the claimant must justify to the Division's satisfaction any costs in excess of the awarded proposal or bid.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13 and 25299.57, Health and Safety Code.





s 2812.2. Eligible and Ineligible Costs.
(a) The Board may only reimburse from the Fund reasonable and necessary corrective action, regulatory technical assistance, and third party compensation costs that are incurred by or on behalf of a claimant.
(b) In order to be reimbursable from the Fund, the corrective action work undertaken must be acceptable to the appropriate regulatory agency.
(c) The Board will review court-approved settlements to assure that awarded costs, including third party compensation costs, are eligible.
(d) Regulatory agency oversight costs of corrective action work are eligible costs.
(e) The following are ineligible corrective action and regulatory technical assistance costs:
(1) attorney fees or other legal costs, except those to provide regulatory technical assistance;
(2) interest or any finance charge;
(3) any cost associated with removal, repair, retrofit, or installation of an underground storage tank, residential tank, or the equipment associated with an underground storage tank or residential tank;
(4) any cost associated with supervision by a claimant of corrective action;
(5) the cost of soil density tests that are not directly related to the corrective action which is the subject of the claim;

(6) the cost of environmental audits or pre-purchase agreements unless performed as part of corrective action;
(7) the cost of testing for non-hydrocarbon contamination that is not associated with corrective action which is the subject of the claim;
(8) the cost of abandonment of wells not directly impacted by the unauthorized release and not installed or used for corrective action purposes;
(9) the cost of blacktop or concrete replacement or repair not directly associated with corrective action;
(10) the cost of demolition of buildings except when it can be demonstrated to the Division's satisfaction to be necessary to implement the most cost effective corrective action option;
(11) the cost of repairs, remodels, or reconstruction of buildings or other improvements;
(12) the cost of monitoring devices to detect hydrocarbon contamination in soil, the vadose zone, or water to the extent that they are not used for corrective action;
(13) the cost of small tools except as required for corrective action;
(14) the cost of purchase of equipment, unless the claimant can demonstrate that the purchase of equipment is more cost effective than leasing or renting;
(15) any consequential costs incurred as a result of corrective action such as, but not limited to, loss of rents or business;
(16) the added costs of implementing a corrective action alternative that is not the most cost-effective alternative to achieve cleanup levels identified as necessary by the regulatory agency;
(17) the costs of corrective action incurred to clean up the property beyond cleanup levels identified as necessary by the regulatory agency;
(18) corrective action costs incurred by the claimant before January 1, 1988;
(19) regulatory technical assistance costs incurred before January 1, 1997;

(20) regulatory technical assistance costs in excess of $3,000 per occurrence submitted with a reimbursement request received by the Fund on or after January 1, 2000;
(21) costs associated with resubmitting an application or reimbursement request to the extent the costs are incurred in response to a finding of noncompliance with the application or reimbursement requirements contained in this chapter; and
(22) any other costs not directly related to corrective action, including but not limited to costs associated with filing of appeals and petitions.
(f) Only third party compensation costs incurred on or after January 1, 1988 are eligible for reimbursement from the Fund. The Fund may only reimburse the following types of third party compensation costs:
(1) medical expenses caused by an unauthorized release;
(2) actual lost wages or business income caused by an unauthorized release;

(3) actual expenses for remedial action necessary to remedy the effects of property damage caused by an unauthorized release; and
(4) damages equal to the fair market value of any property rendered permanently unsuitable for beneficial use by an unauthorized release.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.10, 25299.14, 25299.51, 25299.57 and 25299.58, Health and Safety Code.





s 2812.3. Double Payment.
(a) A claimant may not receive reimbursement from the Fund for corrective action, regulatory technical assistance, or third party compensation costs that have been or will be reimbursed from another source.
(b) If a claimant receives compensation for corrective action, regulatory technical assistance, or third party compensation costs from the Fund and also receives compensation from a source other than the Fund for the same costs, the claimant will remit to the Fund an amount equal to the sum disbursed from the Fund on account of such costs.
(c) If a claimant has received compensation (such as a settlement payment or a reduction in the cost to acquire an interest in real property) from another source, the Division shall determine whether the claimant will receive a double payment if the Fund reimburses the claimant's corrective action, regulatory technical assistance, or third party compensation costs. If the claimant can demonstrate that the compensation was for costs other than corrective action, regulatory technical assistance, or third party compensation costs, the Division shall not consider the compensation to be a double payment. For that demonstration the claimant must submit to the Division, for its review, all of the following documents:
(1) the written contract (e.g., a settlement agreement) or judgment requiring the payment of compensation to the claimant.
(2) the pleadings in any underlying lawsuit, demands or any other request for compensation that relates to the compensation paid to the claimant.
(3) the claimant's documentation of actual, ascertainable costs to which the payment of compensation reasonably may be attributed based on the documents described in subdivisions (1) and (2) above. The Division will not allocate the payment to costs that are unsubstantiated.
(4) any other information or supporting documentation reasonably required by the Division to explain the purpose(s) of the compensation received by the claimant.
(d) The Division shall not consider reimbursement of corrective action, regulatory technical assistance, or third party compensation costs that are advanced to a claimant or incurred on behalf of a claimant to be a double payment if:
(1) the costs are advanced or incurred pursuant to a written contract, other than an insurance contract, that is executed prior to the date the costs are advanced or incurred;
(2) the contract requires the claimant to remit any reimbursement received from the Fund to the person advancing or incurring the costs;
(3) the claimant remits the Fund reimbursement to the person who advanced or incurred the costs pursuant to the contract; and,

(4) the claimant does not benefit, directly or indirectly, from this contractual payment agreement.
(e) Notwithstanding subdivision (a), a claimant may receive reimbursement from the Fund for corrective action, regulatory technical assistance, or third party compensation costs if an insurer has advanced the costs pursuant to an insurance contract and either of the following apply:
(1) The insurance contract explicitly coordinates insurance benefits with the Fund and requires the claimant to do both of the following:
(A) maintain the claimant's eligibility for reimbursement of costs from the Fund by complying with all applicable eligibility requirements, and
(B) reimburse the insurer for costs paid by the insurer pending reimbursement of those costs by the Fund.
(2) The claimant received a letter of commitment prior to June 30, 1999, for the occurrence and the claimant is required to reimburse the insurer for any costs paid by the insurer pending reimbursement of those costs by the Fund.
(f) Notwithstanding subdivision (a), when a claimant obtains settlement proceeds or a judgment for costs the Fund would otherwise have reimbursed, the Fund may bear a fair share of the claimant's costs of obtaining the settlement proceeds or judgment.
(1)(A) The Fund's fair share shall be equal to the lesser of 1. or 2. below:
1. the claimant's actual legal fees and legal costs incurred in collecting the settlement or obtaining the judgment multiplied by the fraction of the costs the Fund would otherwise have reimbursed (i.e., the amount calculated as the benefit to the Fund) divided by the total settlement or judgment amount, as shown below.

benefit to the fund
(actual legal fees and costs) X ___________________________________
total settlement or judgment amount


2. thirty (30) percent of the claimant's otherwise reimbursable costs obtained by the settlement or judgment (i.e., the amount calculated as the benefit to the Fund.
(B) The Fund shall deduct its fair share from the amount determined to be a double payment. If, however, the amount of the double payment is greater than the claimant's corrective action costs, the Fund shall pay its fair share to the claimant directly.
(2) The Fund shall not bear a fair share if the person paying the monies to the claimant pursuant to the settlement or the judgment is eligible to file a claim against the Fund and has not waived its ability to file a claim.
(3) The Fund shall not bear a fair share if both of the following are met:
(A) all of the claimant's documented costs that are related to the causes of action alleged in the underlying complaint have been met by the settlement or judgment; and
(B) all of the claimant's documented costs of obtaining the settlement or judgment have been met.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.10, 25299.51, 25299.54, 25299.57 and 25299.58, Health and Safety Code.





s 2812.4. Intentional or Reckless Acts; Ineligiblity of Costs.
Notwithstanding any other provision of this article, corrective action costs, regulatory technical assistance costs, and third party compensation costs that result from the gross negligence or the intentional or reckless acts of the claimant or an agent, servant, employee or representative of the claimant, are not eligible for reimbursement from the Fund.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.61, Health and Safety Code.




s 2812.5. Reimbursement Limitations.
(a)(1) The Board may not reimburse from the Fund more than $1,000,000 per occurrence less the claimant's level of financial responsibility as set forth in section 2808.1 of this chapter.
(2) Notwithstanding subdivision (a)(1) of this section, if the Board has already reimbursed a claimant the maximum amount specified in subdivision (a)(1) of this section, the Board may reimburse from the Fund up to an additional $500,000 per occurrence for reasonable and necessary corrective action and regulatory technical assistance costs.
(b) For each occurrence, a claimant must pay for otherwise eligible costs in the amount of the claimant's level of financial responsibility as set forth in section 2808.1 of this chapter. For each occurrence, the Board may reimburse from the Fund only eligible corrective action, regulatory technical assistance, and third party compensation costs in excess of a claimant's level of financial responsibility.
(c) If multiple or joint claimants file separate or joint claims against the Fund for the same occurrence, the Fund will require the claimants as a group to pay the amount of financial responsibility only once per occurrence. The required amount of financial responsibility will be equal to the amount of financial responsibility that would be required of the claimant in the lowest priority class.
(d) Reimbursement under section 2813.1, subdivision (c) of this chapter is available only to the extent that reimbursement for the earlier corrective action does not exceed the amount of reimbursement authorized by this section.
(e) No claimant may receive reimbursement from the Fund in any fiscal year which exceeds five percent of the total amount appropriated by the legislature for payment of claims for that fiscal year unless exempted by the Board pursuant to Health and Safety Code, section 25299.60, subdivision (c)(2).


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.32, 25299.57(a), 25299.58, 25299.59(b) and 25299.60(c), Health and Safety Code.





s 2812.6. Verification of Claims.
Claimants shall verify under penalty of perjury that all statements, documents and certifications contained in or accompanying a claim are true and correct to the best of the claimant's knowledge. This shall include all statements and documents submitted during the active life of the claim.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.55(a), Health and Safety Code.




s 2812.7. Submission and Receipt of Claims.
A claimant may hand-deliver claims to the Board or submit claims by mail. A claimant shall not submit claims by facsimile or through other electronic means.


Note: Authority: Section 25299.77, Health and Safety Code. Reference: Section 25299.55, Health and Safety Code.




s 2812.8. Disqualification of Claims.
The Board may disqualify a claim and may bar the claim from further participation in the Fund at any time during the active life of the claim if it is found that the claimant has made a misrepresentation.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.55 and 25299.56(a), Health and Safety Code.




s 2813. Creation of Priority Lists.
(a) At least once each calendar year, the Board will adopt a revised priority list. The Board will place on a revised priority list only those claims received at least 30 days prior to adoption of a revised list and for which the Board has not issued a letter of commitment.
(b) Within 60 days of receipt of a new, completed Fund application that was not included on the previous priority list, the Division will conduct a review of the claim to determine if the claim is eligible.
(c) The Board will not incorporate into a revised priority list those claims from the previous priority list for which a letter of commitment has been issued.
(d) Claims which are carried over from a previous priority list will retain their previous ranking within their respective priority class on any revised priority list. New claims added to any priority class on any revised priority list will be ranked below claims that are carried over from the previous priority list within that class, and the new claims will be ranked in the order of receipt. New claims received on the same day will be randomly ranked.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.52(a)-(b) and 25299.55, Health and Safety Code.




s 2813.1. Effect of Placement on Priority List.
(a) Placement of a claim on the priority list does not constitute a commitment to reimburse eligible costs claimed. Such a commitment will be deemed to occur only when a letter of commitment is issued that specifically commits funds to a claim.
(b) Claims on the priority list will generally be processed and paid according to priority class and the ranking of claims within each priority class. To the extent practicable, all claims within a higher priority class will be processed and paid before any claims in a lower priority class.
(c) Reimbursement to a claimant on a site that has been reopened pursuant to section 2810.1, subdivision (b) of this chapter will be made when funds are available as follows:
(1) If the original claim has not been issued a letter of commitment, then the claim on the reopened site shall be placed on the priority list with the same priority class and rank as the original claim.
(2) If the original claim has been issued a letter of commitment, then a letter of commitment will be issued for the reopened site ahead of all other claims on the priority list.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.52(a)-(c), 25299.55 and 25299.57, Health and Safety Code.





s 2813.2. Management of Priority Lists.
To assure equitable, effective, and timely use and expenditure of available Fund monies, the Board reserves the right at any time to:
(a) modify the order of processing, payment and approval of claims against the Fund;
(b) modify the ranking of claims within any priority class, provided, however, that such action will only be taken after public hearing;
(c) transfer a claim to its correct priority class if the claim has been inappropriately assigned to a priority class. The claim will be placed on the list in accordance with the date on which the claim was received;
(d) determine that a claim that is on the priority list shall receive no further funding or shall be reduced in rank or priority class if the claimant fails to pursue completion of corrective action with reasonable diligence;
(e) waive any non-statutory requirements pertaining to processing, payment or approval of claims.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.52, 25299.55 and 25299.57(d)(2)-(3), Health and Safety Code.




s 2813.3. Removal from the Priority List; Suspension and Rejection of Claims.
(a) A claim that has been placed on the priority list may be removed if:
(1) the claimant is not in compliance with any of the applicable requirements of this chapter, the California Code of Regulations, title 23, division 3, chapter 16, Health and Safety Code, division 20, chapters 6.7 or 6.75, or any provision of the Water Code under which the claimant is required to take corrective action in response to an unauthorized release of petroleum from an underground storage tank or a residential tank; or
(2) the claimant fails to provide necessary documentation or information, or refuses to provide access to the site that is the subject of the claim to a regulatory agency; or
(3) the information submitted with the claim contains a material error.
(b) The Division staff shall issue a Notice of Intended Removal from the priority list prior to such removal. The notice shall inform the claimant that the Division staff proposes to remove the claim and shall state the grounds for the Division staff's determination.
(1) If the Division staff issues such a notice, no payments shall be made on account of such claim until the claimant has corrected the condition that was the basis for the removal. If, within 30 days after the date of the notice, the claimant fails to correct the condition that is the basis for the proposed removal or fails to file a request for review or an appeal with the Fund Manager or Division Chief, as appropriate, pursuant to article 5 of this chapter, the Division staff shall remove the claim from the priority list when the 30-day period has ended.

(2) In the event of a request for review by the Fund Manager, an appeal to the Division Chief, or a petition to the Board, the claim involved shall remain on the priority list pending resolution of the request for review, appeal or petition but no payments shall be made on the claim until such resolution.
(c) For claims filed before January 1, 1997, a claimant may resubmit a claim that has been removed from the priority list pursuant to subdivision (a) of this section if the claimant has corrected the condition that was the basis for the removal. A claim that is resubmitted pursuant to this subdivision shall be treated as a new claim, and if the Division determines that the claimant has corrected the condition that was the basis for removal, the claim's priority ranking shall be based on the date when the Division makes its determination. A claim may not be resubmitted to the Fund if the information presented about the claim contains a material error that was a result of misrepresentation or fraud or other misconduct on the part of the claimant.
(d) For claims filed on or after January 1, 1997, the Division may suspend a claim for the reasons described in subdivision (a) of this section as follows:
(1) The Division may suspend a claim that is on the priority list until the claimant corrects the grounds for suspension of the claim. When the claimant corrects the grounds for suspension of the claim, the Division shall give the reinstated claim a new priority ranking as of the date of reinstatement.
(2) The Division may suspend a claim that has received a letter of commitment until the claimant corrects the grounds for suspension of the claim. When the claimant corrects the grounds for suspension of the claim, then the Division shall reinstate the claim and reimburse the claimant's eligible costs when funding is available.
(e) Notwithstanding subdivision (d)(1)-(2), for claims filed on or after January 1, 1997, if the information presented on the claim contains a material error, and the error resulted from fraud or misrepresentation on the part of the claimant, the Division may revoke the claim's eligibility and may bar the claim from further participation in the Fund.
(f) If a claim is rejected by Division staff before the claim is placed on the priority list, the claimant may either appeal the decision to reject the claim pursuant to article 5 of this chapter or the claimant may submit a new claim.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.37(a)-(c), 25299.52(a), 25299.54(a)-(b) and (d), 25299.55, 25299.56, 25299.57(a), (d)(2)-(3) and 25299.58(b)(3)-(4), Health and Safety Code.





s 2813.4. Removal from the Priority List.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.37(a)-(c), 25299.52(a), 25299.54(a), (b) and (d), 25299.55, 25299. 57(a), (d)(2)-(3), 25299.58(b)(3)-(4) and 25299.77, Health and Safety Code.





s 2814. Fund Manager Decisions.
(a) A claimant who disagrees with a decision rendered by Division staff may request review of the decision by the Fund Manager.
(b) A request for review by the Fund Manager must be accompanied by all material that the claimant wishes to be considered by the Fund Manager, and by the Division Chief and the Board in any subsequent review by the Division Chief or Board. The request for review must include the following information:

(1) a statement describing how the claimant is damaged by the prior staff decision. This section shall be entitled "Claimant's Grievance";
(2) a description of the remedy or outcome desired. This section shall be entitled "Remedy Requested";
(3) an explanation why the claimant believes the staff decision is erroneous, inappropriate or improper. This section shall be entitled "Statement of Reasons"; and
(4) a completed reimbursement request when the subject of the request is non-payment of a specific cost.
(c) The Fund Manager shall render a Fund Manager Decision within 30 days of receipt of the appeal. A Fund Manager Decision is final and conclusive unless the claimant files an appeal to the Division Chief that is received by the Division Chief within 60 days from the date of the Fund Manager Decision.
(d) The Fund Manager may at any time, on the Fund Manager's own motion, issue a Fund Manager Decision.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.54(a) and 25299.55, Health and Safety Code.





s 2814.1. Final Division Decisions.
(a) A claimant may appeal to the Division Chief for review of a Fund Manager Decision. In addition, a claimant who disagrees with a decision rendered by Division staff may appeal directly to the Division Chief pursuant to this section, as an alternative to requesting review by the Fund Manager. A claimant who chooses to request review by the Fund Manager must receive a Fund Manager Decision before appealing to the Division Chief.
(b) An appeal to the Division Chief must be accompanied by all material that the claimant wishes to be considered by the Division Chief, and by the Board in any subsequent review by the Board. The appeal must include the following information:
(1) a statement describing how the claimant is damaged by the Fund Manager Decision or prior staff decision. This section shall be entitled "Claimant's Grievance";
(2) a description of the remedy or outcome desired. This section shall be entitled "Remedy Requested";
(3) an explanation why the claimant believes the Fund Manager Decision or prior staff decision is erroneous, inappropriate, or improper. This section shall be entitled "Statement of Reasons"; and
(4) a completed reimbursement request when the subject of the appeal is non-payment of a specific cost.
(c) The Division Chief shall render a Final Division Decision within 30 days of receipt of the appeal. A Final Division Decision is final and conclusive unless the claimant files a petition for review with the Board that is received by the Board within 30 days from the date of the Final Division Decision.
(d) The Division Chief may at any time, on the Division Chief's own motion, issue a Final Division Decision.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.56, Health and Safety Code.





s 2814.2. Petition for Board Review and Response by the Division Chief.
(a) A claimant may petition the Board for review of a Final Division Decision.
(b) A petition for Board review shall contain the following:
(1) the name and address of the petitioner;
(2) a copy of the Final Division Decision that the Board is requested to review;

(3) an explanation why the claimant believes the Final Division Decision is erroneous, inappropriate, or improper;
(4) a statement describing how the petitioner is damaged by the Final Division Decision; and
(5) a description of the remedy or outcome desired.
(c) The petition shall be sent to the Board Chairperson, with copies sent to the Chief Counsel of the Board, and the Division Chief.
(d) The petitioner may request a hearing for the purpose of presenting factual material not presented to the Division Chief or for oral argument or both. The request to present material which was not presented to the Division Chief must include a description of the factual material that the petitioner wishes to submit, the facts that the petitioner expects to establish, and an explanation of the reasons why the claimant could not previously submit the new material to the Division Chief. The petitioner must include with the petition a copy of any new documentary material that the petitioner wishes to present to the Board.
(e) The Division Chief may file a response to the petition with the Board within 30 days of the Board's notification to the petitioner that the petition is complete. The Division must provide a copy of any response to the petitioner. The Board may extend the time for filing a response by the Division Chief.


Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.56, Health and Safety Code.





s 2814.3. Defective Petitions.
Upon the Board's receipt of a petition which does not comply with section 2814.2 of this chapter, the Board, through its Chief Counsel, will advise the petitioner of the manner in which the petition is defective and allow a reasonable time within which an amended petition may be filed. If the Board does not receive a properly amended petition within the time allowed, the petition shall be dismissed. (continued)