FILING A CLAIM

If your UST system experiences a leak and petroleum contamination is found in the soil or groundwater, you are responsible for the clean-up for the contamination. The Financial Assurance Fund was created, in part, to help pay the costs of performing the corrective actions required to remediate your site. Reimbursement is a two-step process. The first step is applying for eligibility. If eligibility is granted, owners may make claims against the Fund by filing claim applications documenting costs expended for corrective actions. The following list will guide you through the reimbursement process and what requirements must be met:
 

Eligibility Application

Applying for First-Party Eligibility 

Applying for Third-Party Eligibility

Subrogation

Claim Application Review Process

Claim Filing Deadlines

Mandatory Pre-Approval

Voluntary Cost Pre-Approval

Key Claim Filing Information

Applying for First-Party Eligibility

The first step in the reimbursement process is the submission of a completed Application for Eligibility. An owner/operator may obtain a current application and information package by contacting the Board. Upon the receipt of an Application for Eligibility, the Board verifies that the following requirements were met at the time the release was first suspected or confirmed:

The Eligibility Application was filed within one year from the date of the release incident. A “release incident” is defined in O.A.C. 3737-1-03(A)(26) as a “release,” “suspected release,” or “confirmed release,” whichever is first discovered.

• At the time of the release:

• The owner/operator possessed a valid Certificate of Coverage for the UST from which the release occurred.

• The UST was registered with the Fire Marshal or the Fire Marshal has recommended that good cause existed for the UST not being registered.

• The UST was in compliance with Fire Marshal rules.

• The owner/operator demonstrates financial responsibility for the deductible amount.

• The release has been reported as required under Fire Marshal rules.

When the Application review is complete, an eligibility determination is issued. Owners/operators determined eligible will receive a claim application and instructions with their determination. Eligibility must be maintained as required in O.A.C. 3737-1-07(C).

In any determination denying eligibility, information is provided concerning the action to take if the owner/operator wishes to appeal the decision.

A determination of eligibility does not constitute an obligation of the Fund to reimburse a tank owner.

Applying for Third-Party Eligibility

In the event a third party is claiming property damage or bodily injury as a result of a release from an assured UST system, the owner/operator should contact the Board immediately. A third-party eligibility application must be made to the Board within THIRTY DAYS from the date an owner/operator receives any of the following: 

• Service of a third-party complaint against an owner/operator

• Receipt of a third-party demand for settlement

• Notice of representation of a third party in a lawsuit against an owner/operator

• In addition, the same criteria in the first-party eligibility process must be met in the third-party eligibility process.

An owner must keep the Board informed of any actions involving a third-party including negotiation, mediations, settlements or judgments. Any settlement must be reasonable and the Board would not reimburse what will be paid by an owners or third-party’s insurance coverage.

When the Application review is complete, a third-party eligibility determination is issued. Owners/operators determined eligible will receive instructions with their determination. Eligibility must be maintained as required in O.A.C. 3737-1-19(B).

In any determination denying eligibility, information is provided concerning the action to take if the owner/operator wishes to appeal the decision.

A determination of eligibility does not constitute an obligation of the Fund to reimburse a tank owner.

Subrogation

Effective July 1, 2003, the Board adopted a new subrogation rule. This rule clarifies an owner’s responsibilities where another party has caused or contributed to an accidental release of petroleum from an assured UST system and the owner is eligible for reimbursement from the Fund. Under Ohio law, the Board is entitled to the same rights that the owner has to recover costs for corrective action and/or third-party bodily injury or property damages from another party. What this means is that the owner cannot recover corrective action costs from both the Fund and another party. It also means that the Board has the right to pursue another party for corrective action costs paid by the Fund to the owner, if the act of the other party caused or contributed to an accidental release of petroleum. The new rule clarifies an owner’s obligations to the Board and states that a settlement between the owner and another party does not prohibit the Board from asserting its subrogation rights against the other party. Failure to comply with the new rule can result in reduced reimbursement.

Claim Application Review Process

When an owner/operator is determined eligible to file a claim, a Claim Reimbursement Application is sent to the owner/operator along with the determination of eligibility. Subsequent reimbursement applications may be obtained by contacting the Board or from the Forms and Applications section contained within this website.

Cost Documentation

The invoices in the claim are reviewed to evaluate the level of documentation and the reasonableness of the costs. Each consultant/contractor and sub-contractor invoice submitted as evidence of a claim cost needs to clearly indicate the following information:

• The dates the work was done

• The work that was done (the activity or task)

• The person doing the work

• The number of hours and hourly rate charged for each person

• The equipment used, the unit rate (hourly/daily), and the total time used

• A breakdown of the materials used in doing the work, with accompanying invoice/receipts showing actual costs

Retain all canceled checks and Electronic Fund Transfer (EFT) documentation, as your proof of payment must be submitted with the invoices.

Undocumented Costs

O.A.C. 3737-1-09(14) provides all costs for which documentation has been requested and which remain undocumented after 90-days from the date of the letter requesting documentation shall not be reimbursed, regardless of whether documentation is provided after the 90 day period.

Technical Documentation

Technical reports are reviewed to evaluate the work completed at the site. All technical documentation which applies to the claim should be submitted. This review is necessary to determine if the work conducted was in accordance with BUSTR and Board rules, and to determine if the corrective action costs submitted for reimbursement are supported by the technical documentation. Sufficient analytical results should be provided to justify that all the soils removed and disposed were contaminated and required treatment.

Request for More Information 

Additional information may be requested from the owner and/or consultant before a settlement offer can be issued. The request for more information can be done via fax, telephone and mail. The owner/operator has 60 days from the date of the request to provide the additional information.

Settlement Offer

When the claim information is complete, a Settlement Offer is prepared. The settlement offer is based on the net claim value (the total claim value less any deductible) less any non-reimbursable and/or undocumented costs. This settlement offer is sent to the owner/operator and a copy is submitted to the Fire Marshal. The owner/operator and the Fire Marshal have 30 days to appeal any settlement offer. If the owner has not appealed the settlement, any payment due is sent to the owner/operator or his designated payee within 14 days of the expiration of the 30 day appeal period.

Claim Filing Deadlines

A claim will be reviewed to verify that it has been submitted within the specified time frame. Reimbursement will be denied for claims that are filed late.

Complete Tasks

Claims for the costs of any completed program task must be filed within one year of the completion date. Program tasks and their completion dates are defined in O.A.C. 3737-1-12. Click here for a helpful guide to the claim filing deadlines.

 

Incomplete Tasks (performed Before Transitioning to New BUSTR Rules)

When, for a given release, a tank owner has been performing work in accordance with the 1992, 1999, 2005 or 2012 BUSTR corrective action rule and elects to perform work in accordance with the 2017 rule, costs for any program tasks that are incomplete at the time of the election must be submitted in a claim within one year from the date of the election. If the State Fire Marshal transfers the release to the current version of the corrective action rule, costs for any program tasks that are incomplete at the time of the transfer must be submitted in a claim within one year from the date of the transfer.

Mandatory Pre-Approval of Corrective Action Costs
 

The Board adopted a cost pre-approval process in 1994. Although the rule has been modified when necessary to coincide with the rules of the Bureau of UST Regulations (BUSTR), the purpose remains the same. First it provides owner/operators with assurance of the amount that will be reimbursed before the owner/operator incurs the costs and second, it assists the Board with controlling costs to the Fund and, thereby, helps to keep tank fees affordable.
 

Effective January 1, 2019, estimated cost and completion schedules for corrective action activities associated with the following must be submitted for cost pre-approval at the same time they are required to be submitted to BUSTR:

• Interim Response Actions requiring BUSTR approval

• Remedial Action Plans (RAPs)

• When the estimated costs exceed $6,000 for:
  ◦  Tier 3 Evaluation Plans
  ◦  Plans to calibrate or disprove the fate and transport model
  ◦  Monitoring Plans associated with tier evaluation reports

• Free Product (FP) Monitoring Plans in conjunction with a Tier 2 Evaluation report

• Free product recovery (FPR) evaluations if recovery continues beyond one year

After initial pre-approval of the estimated costs is granted, responsible persons must annually submit pre-approval applications to the Board’s Director for costs associated with RAP, FP monitoring and FPR activities, unless allowed otherwise by the Director.
 

In addition, a revised estimated cost and completion schedule is required to be submitted if during implementation of the corrective action activities for which cost pre-approval:

• has been granted, the actual costs are anticipated to exceed the lesser of $6,000 or 20% of the pre-approved amount; or

• was not sought because the estimated costs did not exceed $6,000, but the actual costs will exceed $6,000.