ARTICLE 27 SUBSTITUTE A AS AMENDED

RELATING TO UNDERGROUND STORAGE TANK FINANCIAL RESPONSIBILITY FUND REVIEW BOARD

SECTION 1. Section 42-17.1-2 of the General Laws in Chapter 42-17.1 entitled “Department of Environmental Management” is hereby amended to read as follows:

§ 42-17.1-2. Powers and duties. – The director of environmental management shall have the following powers and duties:

(a) To supervise and control the protection, development, planning, and utilization of the natural resources of the state, such resources, including but not limited to, water, plants, trees, soil, clay, sand, gravel, rocks and other minerals, air, mammals, birds, reptiles, amphibians, fish, shellfish, and other forms of aquatic, insect, and animal life;

(b) To exercise all functions, powers, and duties heretofore vested in the department of agriculture and conservation, and in each of the divisions of the department, such as the promotion of agriculture and animal husbandry in their several branches, including the inspection and suppression of contagious diseases among animals, the regulation of the marketing of farm products, the inspection of orchards and nurseries, the protection of trees and shrubs from injurious insects and diseases, protection from forest fires, the inspection of apiaries and the suppression of contagious diseases among bees, prevention of the sale of adulterated or misbranded agricultural seeds, promotion and encouragement of the work of farm bureaus in cooperation with the University of Rhode Island, farmers' institutes and the various organizations established for the purpose of developing an interest in agriculture, together with such other agencies and activities as the governor and the general assembly may from time to time place under the control of the department, and as heretofore vested by such of the following chapters and sections of the general laws as are presently applicable to the department of environmental management and which were previously applicable to the department of natural resources and the department of agriculture and conservation or to any of its divisions: chapters 1 through 22, inclusive, as amended, in title 2 entitled "Agriculture and Forestry;" chapters 1 through 17, inclusive, as amended, in title 4 entitled "Animals and Animal Husbandry;" chapters 1 through 19, inclusive, as amended, in title 20 entitled "Fish and Wildlife;" chapters 1 through 32, inclusive, as amended, in title 21 entitled "Food and Drugs;" chapter 7 of title 23 as amended, entitled "Mosquito Abatement;" and by any other general or public law relating to the department of agriculture and conservation or to any of its divisions or bureaus;

(c) To exercise all the functions, powers, and duties heretofore vested in the division of parks and recreation of the department of public works by chapters 1, 2, and 5 in title 32 entitled "Parks and Recreational Areas;" by chapter 22.5 of title 23, as amended, entitled "Drowning Prevention and Lifesaving;" and by any other general or public law relating to the division of parks and recreation;

(d) To exercise all the functions, powers, and duties heretofore vested in the division of harbors and rivers of the department of public works, or in the department itself by such as were previously applicable to the division or the department, of chapters 1 through 22 and sections thereof, as amended, in title 46 entitled "Waters and Navigation"; and by any other general or public law relating to the division of harbors and rivers;

(e) To exercise all the functions, powers and duties heretofore vested in the department of health by chapters 25, 18.9, and 19.5 of title 23, as amended, entitled "Health and Safety;" and by chapters 12 and 16 of title 46, as amended, entitled "Waters and Navigation"; by chapters 3, 4, 5, 6, 7, 9, 11, 13, 18, and 19 of title 4, as amended, entitled "Animals and Animal Husbandry;" and those functions, powers, and duties specifically vested in the director of environmental management by the provisions of § 21-2-22, as amended, entitled "Inspection of Animals and Milk;" together with other powers and duties of the director of the department of health as are incidental to or necessary for the performance of the functions transferred by this section;

(f) To cooperate with the Rhode Island Economic Development Corporation in its planning and promotional functions, particularly in regard to those resources relating to agriculture, fisheries, and recreation;

(g) To cooperate with, advise, and guide conservation commissions of cities and towns created under chapter 35 of title 45 entitled "Conservation Commissions", as enacted by chapter 203 of the Public Laws, 1960;

(h) To assign or reassign, with the approval of the governor, any functions, duties, or powers established by this chapter to any agency within the department, except as hereinafter limited;

(i) To cooperate with the water resources board and to provide to the board facilities, administrative support, staff services, and such other services as the board shall reasonably require for its operation and, in cooperation with the board and the statewide planning program to formulate and maintain a long range guide plan and implementing program for development of major water sources transmissions systems needed to furnish water to regional and local distribution systems;

(j) To cooperate with the solid waste management corporation and to provide to the corporation such facilities, administrative support, staff services and such other services within the department as the corporation shall reasonably require for its operation;

(k) To provide for the maintenance of waterways and boating facilities, consistent with chapter 6.1 of title 46, by: (1) establishing minimum standards for upland beneficial use and disposal of dredged material; (2) promulgating and enforcing rules for water quality, ground water protection, and fish and wildlife protection pursuant to § 42-17.1-24; (3) planning for the upland beneficial use and/or disposal of dredged material in areas not under the jurisdiction of the council pursuant to § 46-23-6(2); and (4) cooperating with the coastal resources management council in the development and implementation of comprehensive programs for dredging as provided for in §§ 46-23-6(1)(ii)(H) and 46-23-18.3; and (5) monitoring dredge material management and disposal sites in accordance with the protocols established pursuant to § 46-6.1-5(3) and the comprehensive program provided for in § 46-23-6(1)(ii)(H); no powers or duties granted herein shall be construed to abrogate the powers or duties granted to the coastal resources management council under chapter 23 of title 46, as amended;

(l) To establish minimum standards, subject to the approval of the environmental standards board, relating to the location, design, construction and maintenance of all sewage disposal systems;

(m) To enforce, by such means as provided by law, the standards for the quality of air, and water, and the design, construction and operation of all sewage disposal systems; any order or notice issued by the director relating to the location, design, construction or maintenance of a sewage disposal system shall be eligible for recordation under chapter 13 of title 34. The director shall forward the order or notice to the city or town wherein the subject property is located and the order or notice shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject property is located. Any subsequent transferee of that property shall be responsible for complying with the requirements of the order or notice. Upon satisfactory completion of the requirements of the order or notice, the director shall provide written notice of the same, which notice shall be similarly eligible for recordation. The original written notice shall be forwarded to the city or town wherein the subject property is located and the notice of satisfactory completion shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject property is located. A copy of the written notice shall be forwarded to the owner of the subject property within five (5) days of a request for it, and, in any event, shall be forwarded to the owner of the subject property within thirty (30) days after correction;

(n) To establish minimum standards for the establishment and maintenance of salutary environmental conditions;

(o) To establish and enforce minimum standards for permissible types of septage, industrial waste disposal sites and waste oil disposal sites;

(p) To establish minimum standards subject to the approval of the environmental standards board for permissible types of refuse disposal facilities, the design, construction, operation, and maintenance of disposal facilities; and the location of various types of facilities;

(q) To exercise all functions, powers, and duties necessary for the administration of chapter 19.1 of title 23 entitled "Rhode Island Hazardous Waste Management Act";

(r) To designate in writing any person in any department of the state government or any official of a district, county, city, town, or other governmental unit, with that official's consent, to enforce any rule, regulation, or order promulgated and adopted by the director under any provision of law, provided, however, that enforcement of powers of the coastal resources management council shall be assigned only to employees of the department of environmental management, except by mutual agreement or as otherwise provided in chapter 23 of title 46.

(s) To issue and enforce such rules, regulations, and orders as may be necessary to carry out the duties assigned to the director and the department by any provision of law; and to conduct such investigations and hearings and to issue, suspend, and revoke such licenses as may be necessary to enforce those rules, regulations, and orders;

(1) Notwithstanding the provisions of § 42-35-9 to the contrary, no informal disposition of a contested licensing matter shall occur where resolution substantially deviates from the original application unless all interested parties shall be notified of said proposed resolution and provided with opportunity to comment upon said resolution pursuant to applicable law and any rules and regulations established by the director.

(t) To enter, examine or survey at any reasonable time such places as the director deems necessary to carry out his or her responsibilities under any provision of law subject to the following provisions:

(1) For criminal investigations, the director shall, pursuant to chapter 5 of title 12, seek a search warrant from an official of a court authorized to issue warrants, unless a search without a warrant is otherwise allowed or provided by law;

(2) All administrative inspections shall be conducted pursuant to administrative guidelines promulgated by the department in accordance with chapter 35 of title 42.

(B) A warrant shall not be required for administrative inspections if conducted under the following circumstances, in accordance with the applicable constitutional standards:

(i) For closely regulated industries;

(ii) In situations involving open fields or conditions that are in plain view;

(iii) In emergency situations;

(iv) In situations presenting an imminent threat to the environment or public health, safety or welfare;

(v) If the owner, operator, or agent in charge of the facility, property, site or location consents; or

(vi) In other situations in which a warrant is not constitutionally required.

(C) Whenever it shall be constitutionally or otherwise required by law, or whenever the director in his or her discretion deems it advisable, an administrative search warrant, or its functional equivalent, may be obtained by the director from a neutral magistrate for the purpose of conducting an administrative inspection. The warrant shall be issued in accordance with the applicable constitutional standards for the issuance of administrative search warrants. The administrative standard of probable cause, not the criminal standard of probable cause, shall apply to applications for administrative search warrants.

(i) The need for, or reliance upon, an administrative warrant shall not be construed as requiring the department to forfeit the element of surprise in its inspection efforts.

(ii) An administrative warrant issued pursuant to this subsection must be executed and returned within ten (10) days of its issuance date unless, upon a showing of need for additional time, the court orders otherwise.

(iii) An administrative warrant may authorize the review and copying of documents that are relevant to the purpose of the inspection. If documents must be seized for the purpose of copying, and the warrant authorizes such seizure, the person executing the warrant shall prepare an inventory of the documents taken. The time, place and manner regarding the making of the inventory shall be set forth in the terms of the warrant itself, as dictated by the court. A copy of the inventory shall be delivered to the person from whose possession or facility the documents were taken. The seized documents shall be copied as soon as feasible under circumstances preserving their authenticity, then returned to the person from whose possession or facility the documents were taken.

(iv) An administrative warrant may authorize the taking of samples of air, water or soil or of materials generated, stored or treated at the facility, property, site or location. Upon request, the department shall make split samples available to the person whose facility, property, site or location is being inspected.

(v) Service of an administrative warrant may be required only to the extent provided for in the terms of the warrant itself, by the issuing court.

(D) Penalties. Any willful and unjustified refusal of right of entry and inspection to department personnel pursuant to an administrative warrant shall constitute a contempt of court and shall subject the refusing party to sanctions, which in the courts discretion may result in up to six (6) months imprisonment and/or a monetary fine of up to ten thousand dollars ($10,000) per refusal.

(u) To give notice of an alleged violation of law to the person responsible therefor whenever the director determines that there are reasonable grounds to believe that there is a violation of any provision of law within his or her jurisdiction or of any rule or regulation adopted pursuant to authority granted to him or her, unless other notice and hearing procedure is specifically provided by that law. Nothing in this chapter shall limit the authority of the attorney general to prosecute offenders as required by law.

(1) The notice shall provide for a time within which the alleged violation shall be remedied, and shall inform the person to whom it is directed that a written request for a hearing on the alleged violation may be filed with the director within ten (10) days after service of the notice. The notice will be deemed properly served upon a person if a copy thereof is served him or her personally, or sent by registered or certified mail to his or her last known address, or if he or she is served with notice by any other method of service now or hereafter authorized in a civil action under the laws of this state. If no written request for a hearing is made to the director within ten (10) days of the service of notice, the notice shall automatically become a compliance order.

(2) Whenever the director determines that there exists a violation of any law, rule, or regulation within his or her jurisdiction which requires immediate action to protect the environment, he or she may, without prior notice of violation or hearing, issue an immediate compliance order stating the existence of the violation and the action he or she deems necessary. The compliance order shall become effective immediately upon service or within such time as is specified by the director in such order. No request for a hearing on an immediate compliance order may be made.

(B) Any immediate compliance order issued under this section without notice and prior hearing shall be effective for no longer than forty-five (45) days, provided, however, that for good cause shown the order may be extended one additional period not exceeding forty-five (45) days.

(3) If a person upon whom a notice of violation has been served under the provisions of this section or if a person aggrieved by any such notice of violation requests a hearing before the director within ten (10) days of the service of notice of violation, the director shall set a time and place for the hearing, and shall give the person requesting that hearing at least five (5) days written notice thereof. After the hearing, the director may make findings of fact and shall sustain, modify, or withdraw the notice of violation. If the director sustains or modifies the notice, that decision shall be deemed a compliance order and shall be served upon the person responsible in any manner provided for the service of the notice in this section.

(4) The compliance order shall state a time within which the violation shall be remedied, and the original time specified in the notice of violation shall be extended to the time set in the order.

(5) Whenever a compliance order has become effective, whether automatically where no hearing has been requested, where an immediate compliance order has been issued, or upon decision following a hearing, the director may institute injunction proceedings in the superior court of the state for enforcement of the compliance order and for appropriate temporary relief, and in that proceeding the correctness of a compliance order shall be presumed and the person attacking the order shall bear the burden of proving error in the compliance order, except that the director shall bear the burden of proving in the proceeding the correctness of an immediate compliance order. The remedy provided for in this section shall be cumulative and not exclusive and shall be in addition to remedies relating to the removal or abatement of nuisances or any other remedies provided by law.

(6) Any party aggrieved by a final judgment of the superior court may, within thirty (30) days from the date of entry of such judgment, petition the supreme court for a writ of certiorari to review any questions of law. The petition shall set forth the errors claimed. Upon the filing of the petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ of certiorari;

(v) To impose administrative penalties in accordance with the provisions of chapter 17.6 of this title and to direct that such penalties be paid into the account established by subsection (z) of this section; and

(w) The following definitions shall apply in the interpretation of the provisions of this chapter:

(1) Director: The term director shall mean the director of environmental management of the state of Rhode Island or his or her duly authorized agent.

(2) Person: The term person shall include any individual, group of individuals, firm, corporation, association, partnership or private or public entity, including a district, county, city, town, or other governmental unit or agent thereof, and in the case of a corporation, any individual having active and general supervision of the properties of such corporation.

(3) Service: (a) Service upon a corporation under this section shall be deemed to include service upon both the corporation and upon the person having active and general supervision of the properties of such corporation.

(b) For purposes of calculating the time within which a claim for a hearing is made pursuant to subdivision (u)(1) of this section heretofore, service shall be deemed to be the date of receipt of such notice or three (3) days from the date of mailing of said notice, whichever shall first occur.

(x)(1) To conduct surveys of the present private and public camping and other recreational areas available and to determine the need for and location of such other camping and recreational areas as may be deemed necessary and in the public interest of the state of Rhode Island and to report back its findings on an annual basis to the general assembly on or before March 1 of every year;

(2) Additionally, the director of the department of environmental management shall take such additional steps, including but not limited to, matters related to funding as may be necessary to establish such other additional recreational facilities and areas as are deemed to be in the public interest.

(y)(1) To apply for and accept grants and bequests of funds with the approval of the director of administration from other states, interstate agencies and independent authorities, and private firms, individuals and foundations, for the purpose of carrying out his or her lawful responsibilities. The funds shall be deposited with the general treasurer in a restricted receipt account created in the Natural Resources Program for funds made available for that program's purposes or in a restricted receipt account created in the Environmental Protection Program for funds made available for that program's purposes. All expenditures from the accounts shall be subject to appropriation by the general assembly, and shall be expended in accordance with the provisions of the grant or bequest. In the event that a donation or bequest is unspecified or in the event that the trust account balance shows a surplus after the project as provided for in the grant or bequest has been completed, the director may utilize said appropriated unspecified or appropriated surplus funds for enhanced management of the department's forest and outdoor public recreation areas, or other projects or programs that promote the accessibility of recreational opportunities for Rhode Island residents and visitors.

(2) The director shall submit to the House Fiscal Advisor and the Senate Fiscal Advisor, by October 1 of each year, a detailed report on the amount of funds received and the uses made of such funds.

(z) To establish fee schedules by regulation with the approval of the governor for the processing of applications and the performing of related activities in connection with the department's responsibilities pursuant to subdivision (1) of this section, chapter 19.1 of title 23 as it relates to inspections performed by the department to determine compliance with chapter 19.1 and rules and regulations promulgated in accordance therewith, chapter 18.9 of title 23 as it relates to inspections performed by the department to determine compliance with chapter 18.9 and the rules and regulations promulgated in accordance therewith, chapters 19.5 and 23 of title 23; chapter 12 of title 46 insofar as it relates to water quality certifications and related reviews performed pursuant to provisions of the federal Clean Water Act, the regulation and administration of underground storage tanks and all other programs administered under chapter 12 of title 46 and § 2-1-18 et seq., and chapter 13.1 of title 46 and chapter 13.2 of title 46 insofar as they relate to any reviews and related activities performed under the provisions of the Groundwater Protection Act, chapter 23-24.9 as it relates to the regulation and administration of mercury-added products, and chapter 17.7 of this title insofar as it relates to administrative appeals of all enforcement, permitting and licensing matters to the administrative adjudication division for environmental matters. Two fee ranges shall be required: for "Appeal of enforcement actions", a range of fifty dollars ($50) to one hundred dollars ($100), and for "Appeal of application decisions", a range of five hundred dollars ($500) to ten thousand dollars ($10,000). The monies from the administrative adjudication fees will be deposited as general revenues and the amounts appropriated shall be used for the costs associated with operating the administrative adjudication division.

There is hereby established an account within the general fund to be called the water and air protection program. The account shall consist of sums appropriated for water and air pollution control and waste monitoring programs and the state controller is hereby authorized and directed to draw his or her orders upon the general treasurer for the payment of such sums or such portions thereof as may be required from time to time upon receipt by him or her of properly authenticated vouchers. All amounts collected under the authority of this subdivision for the sewage disposal system program and fresh waters wetlands program will be deposited as general revenues and the amounts appropriated shall be used for the purposes of administering and operating the programs. The director shall submit to the house fiscal advisor and the senate fiscal advisor by January 15 of each year a detailed report on the amount of funds obtained from fines and fees and the uses made of such funds.

(aa) To establish and maintain a list or inventory of areas within the state worthy of special designation as "scenic" to include but not be limited to certain state roads or highways, scenic vistas and scenic areas, and to make the list available to the public.

(bb) To establish and maintain an inventory of all interests in land held by public and private land trust and to exercise all powers vested herein to insure the preservation of all identified lands.

(1) The director may promulgate and enforce rules and regulations to provide for the orderly and consistent protection, management, continuity of ownership and purpose, and centralized records-keeping for lands, water, and open spaces owned in fee or controlled in full or in part through other interests, rights, or devices such as conservation easements or restrictions, by private and public land trusts in Rhode Island. The director may charge a reasonable fee for filing of each document submitted by a land trust.

(2) The term "public land trust" means any public instrumentality created by a Rhode Island municipality for the purposes stated herein and financed by means of public funds collected and appropriated by the municipality. The term "private land trust" means any group of five (5) or more private citizens of Rhode Island who shall incorporate under the laws of Rhode Island as a nonbusiness corporation for the purposes stated herein, or a national organization such as the nature conservancy. The main purpose of either a public or a private land trust shall be the protection, acquisition, or control of land, water, wildlife, wildlife habitat, plants, and/or other natural features, areas, or open space for the purpose of managing or maintaining, or causing to be managed or maintained by others, the land, water, and other natural amenities in any undeveloped and relatively natural state in perpetuity. A private land trust must be granted exemption from federal income tax under Internal Revenue Code 501c(3) [26 U.S.C. § 501(c)(3)] within two (2) years of its incorporation in Rhode Island or it may not continue to function as a land trust in Rhode Island. A private land trust may not be incorporated for the exclusive purpose of acquiring or accepting property or rights in property from a single individual, family, corporation, business, partnership, or other entity. Membership in any private land trust must be open to any individual subscribing to the purposes of the land trust and agreeing to abide by its rules and regulations including payment of reasonable dues.

(3)(A) Private land trusts will, in their articles of association or their by-laws, as appropriate, provide for the transfer to an organization created for the same or similar purposes the assets, lands and land rights and interests held by the land trust in the event of termination or dissolution of the land trust.

(B) All land trusts, public and private, will record in the public records of the appropriate towns and cities in Rhode Island all deeds, conservation easements or restrictions or other interests and rights acquired in land and will also file copies of all such documents and current copies of their articles of association, their by-laws, and annual reports with the secretary of state, and with the director of the Rhode Island department of environmental management. The director is hereby directed to establish and maintain permanently a system for keeping records of all private and public land trust land holdings in Rhode Island.

(cc) The director will contact in writing, not less often than once every two (2) years, each public or private land trust to ascertain: that all lands held by the land trust are recorded with the director; the current status and condition of each land holding; that any funds or other assets of the land trust held as endowment for specific lands have been properly audited at least once within the two (2) year period; the name of the successor organization named in the public or private land trust's by-laws or articles of association; and any other information the director deems essential to the proper and continuous protection and management of land and interests or rights in land held by the land trust.

In the event that the director determines that a public or private land trust holding land or interest in land appears to have become inactive, he or she shall initiate proceedings to effect the termination of the land trust and the transfer of its lands, assets, land rights, and land interests to the successor organization named in the defaulting trust's by-laws or articles of association or to another organization created for the same or similar purposes. Should such a transfer not be possible, then the land trust, assets, and interest and rights in land will be held in trust by the state of Rhode Island and managed by the director for the purposes stated at the time of original acquisition by the trust. Any trust assets or interests other than land or rights in land accruing to the state under such circumstances will be held and managed as a separate fund for the benefit of the designated trust lands.

(dd) Consistent with federal standards, issue and enforce such rules, regulations and orders as may be necessary to establish requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and non-sudden accidental releases arising from operating underground storage tanks.

(ee) To enforce, by such means as provided by law, the standards for the quality of air, and water, and the location, design, construction and operation of all underground storage facilities used for storing petroleum products or hazardous materials; any order or notice issued by the director relating to the location, design construction, operation or maintenance of an underground storage facility used for storing petroleum products or hazardous materials shall be eligible for recordation under chapter 13 of title 34. The director shall forward the order or notice to the city or town wherein the subject facility is located, and the order or notice shall be recorded in the general index by the appropriate municipal officer in the land evidence records in the city or town wherein the subject facility is located. Any subsequent transferee of that facility shall be responsible for complying with the requirements of the order or notice. Upon satisfactory completion of the requirements of the order or notice, the director shall provide written notice of the same, which notice shall be eligible for recordation. The original written notice shall be forwarded to the city or town wherein the subject facility is located, and the notice of satisfactory completion shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject facility is located. A copy of the written notice shall be forwarded to the owner of the subject facility within five (5) days of a request for it, and, in any event, shall be forwarded to the owner of the subject facility within thirty (30) days after correction.

(ff) To manage and disburse any and all funds collected pursuant to section 46-12.9-4, in accordance with section 46-12.9-5, and other provisions of the Rhode Island Underground Storage Tank Financial Responsibility Act, as amended.

SECTION 2. Chapter 42-17.1 of the General Laws entitled “Department of Environmental Management” is hereby amended by adding thereto the following section:

§ 42-17.1-23.1. Transfer of functions and resources – Underground storage tanks. – (a) Resources of the underground storage tank financial responsibility review board including but not limited to property, employees, and accounts are hereby transferred to the department of environmental management.

(b) As part of the above transfer, all employees of the underground storage tank financial responsibility review board shall be transferred to the classified service. The director of the department of environmental management, following consultation with the personnel administrator, shall be responsible for assigning final class specifications with salaries commensurate with the duties and responsibilities assigned. The personnel administrator shall take into consideration existing classifications currently within the classified service classification and pay plan.

(c) Transferred employees who return to service with the state of Rhode Island directly from uninterrupted employment with the Rhode Island Underground Storage Tank Financial Review Board, henceforth referred to as "UST Board" shall have their length of service at the UST Board deemed to be uninterrupted active state service for purposes of service credits in the state retirement system.

(d) Employees who subsequently become employees of the department of environmental management as a result of this transfer may utilize their term of service with the UST Board for the purposes of longevity computation as it applies to wages, vacation time and longevity increases. In addition, accrued vacation time, sick leave, and all other benefits with the UST Board may be transferred.

SECTION 3. Sections 46-12.9-3, 46-12.9-4, 46-12.9-5, 46-12.9-6, 46-12.9-7, 46-12.9-8, and 46-12.9-11 of the General Laws in Chapter 46-12.9 entitled “Rhode Island Underground Storage Tank Financial Responsibility Act” are hereby amended to read as follows:

§ 46-12.9-3. Definitions. – When used in this chapter:

(1) "Department" means the Rhode Island department of environmental management.

(2) "Director" means the director of the department of environmental management or his or her designee.

(3) "Eligible costs" means costs, expenses and other obligations as incurred by a responsible party for site investigation, site remediation or other corrective action activities ordered or directed by the department or voluntarily performed by the responsible party and not specifically identified by the review board as ineligible.

(4) "Fund" means the Rhode Island underground storage tank financial responsibility fund established herein.

(5) "Operator" means any person in control of, or having the responsibility for, the daily operation of an underground storage tank system.

(6) "Owner" means any agency or political subdivision of the state, any municipality, public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association or other entity, and any officer, employee or agent thereof.

(7) "Petroleum" means crude oil, crude oil fractions, and refined petroleum fractions, including gasoline, kerosene, heating oils, used/waste oil and diesel fuels.

(8) "Release" means any leaking, emitting, discharging, escaping or leaching of petroleum from any underground storage tank or underground storage tank system into the environment.

(9) "Responsible party" means the person or persons liable for release of petroleum or the remediation of a release.

(10) "Review board" means the Rhode Island underground storage tank financial responsibility review board established pursuant to the provisions of § 46-12.9-8.

(11)(i) "Site" means any location at which or from which there has been a release of petroleum associated with an underground storage tank or an underground storage tanks system or any location to which such petroleum has migrated.

(ii) For the purposes of this chapter, "government site" means any location owned or occupied, or previously owned or occupied, by any city or town, the state or any agency of the state of which or from which there has been a release of petroleum associated with an underground storage tanker and underground storage tank system.

(12) "Underground storage tank" means any one or combination of tanks, including underground pipes connected thereto, used to contain an accumulation of petroleum and the volume of which, including the volume of underground pipes connected thereto, is ten percent (10%) or more beneath the surface of the ground.

(13) "Underground storage tank system" means an underground storage tank and its associated ancillary equipment and containment system, if any.

§ 46-12.9-4. Petroleum cleanup fund. – (a) There is hereby established the Rhode Island underground storage tank financial responsibility fund.

(b) The fund shall consist of any funds which the state may from time to time appropriate, as well as money received as gifts, grants, bequests, donations or other funds from any public or private sources or annual tank registration fees as established herein which are intended to serve the purposes of the Rhode Island underground tank financial responsibility fund and all funds collected pursuant to § 46-12.9-11.

(c) All funds received under the provisions of this chapter shall be paid to and received by the review board, which shall keep such monies in a distinct interest-bearing restricted receipt account to the credit of and for the exclusive use of the fund.

(c) All funds collected pursuant to this section shall be deposited in the Underground Storage Tank Fees fund, and shall be disbursed according to the purposes expressed in section 46-12.9-5.

§ 46-12.9-5. Purpose of fund. – The purpose of the fund shall be to facilitate the clean-up of releases from leaking underground storage tanks, underground storage tank systems, including those located on sites or government sites in order to protect the environment including drinking water supplies and public health and to take necessary action to proactively prevent such releases. The fund shall provide reimbursement to responsible parties for the eligible costs incurred by them as a result of releases of certain petroleum from underground storage tanks or underground storage tank systems as provided herein. Monies in the fund shall be dispensed only upon the order of the review board or its designee for the following purposes.

(1) Administrative expenses, personnel, expenses and miscellaneous costs directly related to the fund management incurred by the review board in carrying out fund activities; provided, however, that no more than five hundred and fifty thousand dollars ($550,000) shall be dispensed from the fund for administrative purposes during fiscal year 1998. For fiscal year 1999, no more than three hundred and fifty thousand dollars ($350,000) shall be dispensed from the fund for administrative purposes;

(2) (1) The fund shall pay not more than one million dollars ($1,000,000) per incident and up to two million dollars ($2,000,000) in the aggregate for damages of eligible costs, as defined in regulations promulgated hereunder and, as further defined in § 46-12.9-3 excluding legal costs and expenses, incurred by a responsible party as a result of a release of petroleum from an underground storage tank or underground storage tank system; provided, however, that a responsible party shall be responsible for the first twenty thousand dollars ($20,000) of said eligible costs;

(3) (2) [Deleted by P.L. 2001, ch. 328, § 1.]

(4) (3) Reimbursement for any third party claim including, but not limited to, claims for bodily injury, property damage and damage to natural resources which are asserted against a responsible party and which have arisen as a result of a release of petroleum from an underground storage tank or underground storage tank system in an amount not to exceed one million dollars ($1,000,000) for each release as set forth in subsection (2) of this section; provided, that such claims are found by the review board to be justified, reasonable, related to the release of petroleum and not excessive or spurious in nature; and

(5) (4) Eligible costs incurred by the department in carrying out the investigative, remedial and corrective action activities at sites of a petroleum release associated with an underground storage tank or underground storage tank system where the responsible party fails to comply with an order of the department to take such corrective action. In the event of such failure, the department may access the fund to perform the ordered work and shall proceed to recover from the responsible party on behalf of the fund any amount expended from the fund by the department.

(6) (5) Nothing contained in this chapter shall be construed to prevent subrogation by the state of Rhode Island against any responsible party other than the owner and/or operator for all sums of money which the fund shall be obligated to pay hereunder plus reasonable attorneys' fees and costs of litigation and such right of subrogation is hereby created.

(7) (6) [Deleted by P.L. 2001, ch. 328, § 1.]

(7) Eligible costs incurred by the department to support the fund, including, but not limited to, all personnel support to process and review of claims in order to formulate recommendations for reimbursement for consideration by the review board, and providing meeting space for Board meetings provided, however, that no more than five hundred and fifty thousand dollars ($550,000) shall be dispensed from the fund for administrative purposes during any fiscal year. The department shall directly access the fund, pursuant to the limits set forth in section 46-12.9-5(1) above, to pay for such expenses.

(8) Grants to any third party for purposes of removal of underground storage tanks and/or replacement of underground storage tanks with other fuel storage and distribution systems, including aboveground storage tanks, when such removal and/or replacement will minimize the potential future exposure of the fund to major expenses related to reimbursement of costs incurred in response or remediation should a future release occur. Grants under this section shall be limited to fifty thousand dollars ($50,000) per site and shall be in addition to any eligible reimbursement for clean up expenses at that site.

§ 46-12.9-6. Eligibility. – (a) In order to be eligible for reimbursement from the fund for eligible costs a responsible party must be subject to financial responsibility as required by the EPA (40 CFR part 280 subpart H) and:

(1) Have substantially complied with all state technical requirements for underground storage tanks and underground storage tank systems as promulgated by the department of environmental management pursuant to chapter 12 of this title and chapter 17.1 of title 42, including but not limited to, requirements for registration, proper installation, spill containment, line leak detection, corrosion protection, leak detection, tank tightness testing, inventory control, closure and leak or spill reporting;

(2) Have incurred an eligible cost in excess of the deductible amount specified in § 46-12.9-5(2) whether for clean-up or related matters or for claims of third parties as set forth in § 46-12.9-3 resulting from a release of petroleum, subject to the motor and special fuels tax from an underground storage tank or underground storage tank system. In order to apply for reimbursement from the fund, it shall not be necessary that the third party and the responsible party complete adjudication of any claim before submission to the review board; provided, however, that all such claims shall be reasonably verified and must be demonstrated to the reasonable satisfaction of the review board in order to be considered eligible for reimbursement.

(b) [Deleted by P.L. 2001, ch. 328, § 1.]

(c) [Deleted by P.L. 2001, ch. 328, § 1.]

(d) Notwithstanding the financial responsibility requirement of this section, responsible parties may be eligible for reimbursement of eligible costs incurred for government sites provided that:

(1) A city, town, the state or a state agency is the responsible party for a release at the government site and was the owner of the site at the time of the release;

(2) A city, town, the state or a state agency is the responsible party and owner of the government site at the time of application on which a release occurred prior to the city, town or state agency's ownership, provided that the government entity purchased the property prior to March 1, 1998; or

(3) A city, town, the state or a state agency was the responsible party at the time of the release and the government site is owned by a successor in interest at the time of application.

(e) Notwithstanding the requirement that the released petroleum be subject to the motor and special fuels tax, underground storage tanks containing petroleum products for which the motor and special fuels tax is inapplicable including, but not limited to, underground storage tanks used for the distribution of No. 2 heating oil, used/waste oil, kerosene or other materials as deemed appropriate by the review board may be eligible for reimbursement with the following exceptions:

(1) Underground storage tanks containing heating or fuel oils used solely for onsite consumption shall not be eligible.

(2) Underground storage tanks exempted from the department's "regulations for underground storage facilities used for petroleum products and hazardous materials" under Section 5.03 and Section 9.01 (A-D) shall not be eligible.

§ 46-12.9-7. Rules and regulations. – The review board, after consultation with the department, is hereby authorized to promulgate, implement and amend regulations, in accordance with the provisions of chapter 35 of title 42, providing for the submission of claims to the fund and the timely disbursement of monies from the fund. Such regulations shall include, but not be limited to, the following:

(1) A means of notifying all eligible parties of the existence and functioning of the fund;

(2) The record keeping required of eligible parties for submission to and reimbursement from the fund;

(3) A set criteria which establishes the eligibility for reimbursement of specific costs, expenses and other obligations;

(4) [Deleted by P.L. 2001, ch. 328, § 1.]

(5) A method of providing periodic reimbursement for eligible costs incurred by an eligible party after July 8, 1994;

(6) A requirement that the review board render its decisions to an eligible party upon the receipt of a complete claim for reimbursement within ninety (90) days following its receipt of completed claim;

(7) Establishing procedures for verifying claims presented under this chapter;

(8) Establishing procedures for approving, modifying or denying claims;

(9) Empowering the review board to levy and collect an annual tank registration fee not to exceed two thousand five hundred dollars ($2,500) per site on underground storage tanks which require demonstration of financial responsibility under the department's regulations of underground storage facilities used for petroleum products and hazardous materials. These tanks which are exempted from the special motor fuels tax shall not be subject to the fee; and

(10) (9) The eligibility of claims shall be determined by the review board, provided however, that no claims shall be considered for costs incurred prior to January 1, 1994 by responsible parties who are owners or operators of no more than one location containing underground storage tanks and July 8, 1994 by all other responsible parties.

(11) (10) Empowering the review board department to recognize and arrange for performance-based and other contracts with the responsible party and contractor for the remediation of a release.

(12) (11) Empowering the review board department to arrange for the establishment of alternate means of financial responsibility.

§ 46-12.9-8. Review board. – (a) There is hereby authorized, created and established a public corporation of the state having a distinct legal existence from the state and not constituting a department of state government to be known as the "underground storage tank review board," with such powers as are set forth in this chapter, to oversee administration and implementation of the fund, to review submissions and claims received from eligible parties and to proceed to approve, modify, or deny disbursements to eligible parties and to have such other powers as are provided herein.

(b) The review board shall consist of ten (10) members, as follows: the director of the department of environmental management or his or her designee who shall be a subordinate within the department of environmental management; the director of the department of business regulation or his or her designee who shall be a subordinate within the division of insurance and who shall be a nonvoting member. The governor, with the advice and consent of the senate, shall appoint eight (8) public members one of shall have expertise and experience in financial matters. In making these appointments the governor shall give due consideration to recommendations from the American Petroleum Institute, the Independent Oil Marketers Association, the Oil Heat Institute, the Environment Council, the Independent Oil Dealers Association and the Rhode Island Marine Trade Association. The newly appointed members will serve for a term of three (3) years commencing on the day they are qualified. Any vacancy which may occur on the board shall be filled by the governor with advice and consent of the senate, for the remainder of the unexpired term in the same manner as the member's predecessor as prescribed in this section. The members of the board shall be eligible to succeed themselves. Members shall serve until their successors are appointed and qualified. No one shall be eligible for appointment unless he or she is a resident of this state. The members of the board shall serve without compensation. Those members of the board as of the effective date of this act [July 15, 2005] who were appointed to the board by members of the general assembly shall cease to be members of the board on the effective date of this act, and the governor shall thereupon nominate three (3) members, each of whom shall serve the balance of the unexpired term of his or her predecessor. Those members of the board as of the effective date of this act who were appointed to the board by the governor shall continue to serve the balance of their current terms. Thereafter, the appointments shall be made by the governor as prescribed in this section.

(c) When claims are pending, the review board shall meet at the call of the chair no less than four (4) times per year. All meetings shall be held consistently with chapter 46 of title 42.

(d) It is the intent of the general assembly, by the passage of this chapter, to vest in the review board all powers, authority, rights, privileges, and titles which may be necessary to enable it to accomplish the purposes herein set forth, and this chapter and the powers herein granted shall be liberally construed in conformity with those purposes.

(e) (d) The review board and its corporate existence shall continue until terminated by law. Upon termination of the existence of the review board, all its rights and properties shall pass to and be vested in the state.

(f) (e) The review board shall have the following powers and duties, together with all powers incidental thereto or necessary for the performance of those stated in this chapter:

(1) To sue and be sued, complain and defend, in its corporate name;

(2) To have a seal which may be altered at pleasure and to use the seal by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced;

(3) To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use, and otherwise deal in and with, real or personal property, or any interest therein, wherever situated;

(4) To make and execute agreements of lease and all other contracts and instruments necessary or convenient in the exercise of the powers and functions of the review board granted by this chapter;

(5) To make guarantees and incur or assume liabilities as the review board may deem appropriate;

(6) To invest and reinvest its funds;

(7) To secure the cooperation and assistance of the United States, and any of its agencies and of agencies of this state and its municipalities in the work of the review board;

(8) To accept grants, donations, drafts, loans of funds, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, from this state and its agencies, or from any other source, and to use or expend those moneys, services, materials, or other contributions in carrying out the purposes of this chapter;

(9) To acquire or contract to acquire, from any person, the federal government or the state, or any agency of either the federal government or state, by grant, purchase, lease, gift, or otherwise, or to obtain options for the acquisition of any property, real or personal, improved or unimproved, and interests in land less than the fee thereof; and to own, hold, clear, improve, develop, and rehabilitate, and to sell, assign, exchange, transfer, convey, lease, mortgage, or otherwise dispose of or encumber the property for the purposes of carrying out the provisions and intent of this chapter for such consideration as the review board shall determine;

(10) (1) To elect or appoint officers and agents of the review board, and to define their duties: and fix their compensation, including authority to employ attorneys, accountants, and engineering consultants, and such other employees or agents as the review board shall deem necessary in its judgment;

(11) (2) To make and alter bylaws, not inconsistent with this chapter, for the administration and regulation of the affairs of the review board, . and the Such bylaws may contain provisions indemnifying any person who is or was a director or a member of the review board, in the manner and to the extent provided in § 7-6-6 of the Rhode Island nonprofit corporation act;

(12) To have and exercise all powers necessary or convenient to effect its purposes;

(13) To enter into agreements, contracts, and other arrangements with the state and any of its departments, agencies, board or commissions relating to the execution or performance of any function or purpose of the review board, including, but not limited to, investments, employee compensation and employee benefits, and the state and its departments, agencies, boards and commissions are hereby authorized to enter into such agreements, contracts and other arrangements with the review board, and upon the request of the review board shall enter into such agreements, contracts and other arrangements with the review board.

(14) (3) To approve and submit an annual report within ninety (90) days after the end of each fiscal year to the governor, the speaker of the house of representatives, the president of the senate, and the secretary of state, of its activities during that fiscal year. The report shall provide: an operating statement summarizing meetings or hearings held, including meeting minutes, subjects addressed, and decisions rendered; a summary of the review board's actions including a listing of regulations promulgated, implemented and amended as prescribed in § 46-12.9-7, fees levied, collected or received as prescribed in §§ 46-12.9-7 and 46-12.9-11, claims submitted, verified, approved, modified, and denied as prescribed in § 46-12.9-7, contracts entered into as prescribed in § 46-12.9-7 and this section, properties acquired as prescribed in this section, liabilities incurred or assumed as prescribed in this section and reconsideration hearings held as prescribed in § 46-12.9-9; a synopsis of any law suits or other legal matters related to the authority of the review board; a consolidated financial statement of all funds received, expended, disbursed, and invested by the review board including the source of the funds, a listing of the staff and/or consultants employed by the review board; and a summary of performance during the previous fiscal year including accomplishments, shortcomings and remedies; a briefing on anticipated activities in the upcoming fiscal year; and findings and recommendations for improvements; and a summary of any training courses held pursuant to subdivision (f)(15) of this section. The report shall be posted electronically as prescribed in § 42-20-8.2.

(15) (4) To conduct a training course for newly appointed and qualified members and new designees of ex-officio members within six (6) months of their qualification or designation. The course shall be developed by the executive director, approved by the board, and conducted by the executive director. The board may approve the use of any board or staff members or other individuals to assist with training. The training course shall include instruction in the following areas: the provisions of chapters 46-12.9, 42-46, 36-14, and 38-2; and the boards rules and regulations. The director of the department of administration shall, within ninety (90) days of the effective date of this act [July 15, 2005], prepare and disseminate training materials relating to the provisions of chapters 36-14, 38-2, and 42-46.

(g) Upon the passage of this act and the appointment and qualification of the three (3) new members prescribed in subsection (b) of this section, the board shall elect from among its members a chair. Thereafter, the board shall elect annually in February a chair from among the members. The board may elect from among its members such other officers as it deems necessary.

(h) Six (6) members of the board shall constitute a quorum and the vote of the majority of the members present shall be necessary and shall suffice for any action taken by the board. No vacancy in the membership of the board shall impair the right of a quorum to exercise all of the rights and perform all of the duties of the board.

(i) Members of the board shall be removable by the governor pursuant to section 36-17 and removal solely for partisan or personal reasons unrelated to capacity or fitness for the office shall be unlawful.

§ 46-12.9-11. Funding. – (a) There is hereby imposed an environmental protection regulatory fee of at the rate of one cent ($0.01) per gallon payable of motor fuel, to be collected by distributors of motor fuel when the product is sold to owners and/or operators of underground storage tanks. Each distributor shall be responsible to the tax administrator for the collection of the regulatory fee, and if the distributor is unable to recover the fee from the person who ordered the product, the distribution shall nonetheless remit to the tax administrator the regulatory fee associated with the delivery. In accordance with the regulations to be promulgated hereunder, the fee shall be collected, reported, and paid to the Rhode Island division of taxation as a separate line item entry, on a quarterly tax report by those persons charged with the collection, reporting, and payment of motor fuels taxes. This fee shall be administered and collected by the division of taxation. Notwithstanding the provisions of this section, the fee shall not be applicable to purchases by the United States government.

(b) All fees derived under the provisions of this chapter, including tank registration fees assessed pursuant to § 46-12.9-7(9), shall be paid to and received by the review board, which shall keep such money in a distinct interest bearing restricted receipt account to the credit of and for the exclusive use of the fund. All fees collected may be invested as provided by law and all interest received on such investment shall be credited to the fund.

(c) (b) When the fund reaches the sum of eight million dollars ($8,000,000), the imposition of the fee set forth in this chapter shall be suspended, and the division of taxation shall notify all persons responsible for the collection, reporting and payments of the fee of the suspension. In the event that the account balance of the fund subsequently is reduced to a sum less than five million dollars ($5,000,000) as a result of fund activity, the fee shall be reinstated by the division of taxation, following proper notice thereof, and once reinstated, the collection, reporting, and payment of the fee shall continue until the account balance again reaches the sum of eight million dollars ($8,000,000).

(d) (c) Upon the determination by the review board and the department that the fund has reached a balance sufficient to satisfy all pending or future claims, the review board shall recommend to the general assembly the discontinuation of the imposition of the fee created in this section.

SECTION 4. Chapter 36-9 of the General Laws entitled "Retirement System-Membership and Service Credits" is hereby amended by adding thereto the following section:

36-9-48. Underground storage tank financial review board - Transferred employees. – (a) Definitions. For the purposes of this section:

(i) "UST Board" means the Rhode Island Underground Storage Tank Financial Review Board, a governmental agency and a public instrumentality of the state of Rhode Island.

(ii) "Transfer date" means July 1, 2006.

(iii) "Transferred employee" means any individual who was an employee of the UST Board of the state of Rhode Island on the date immediately preceding the transfer date, and who became an employee of the state of Rhode Island, department of environmental management on the transfer date.

(b) Transferred employees who return to employment with the state of Rhode Island directly from uninterrupted employment with the Rhode Island Underground Storage Tank Financial Responsibility Review Board shall have their length of service at the UST Board deemed to be uninterrupted active state service for the purposes of service credits in the state retirement system.

(c) The period of service of any transferred employee from December 29, 2002 to the date of transfer shall be treated as service as an employee of the state of Rhode Island for the purposes of Chapters 8, 9 and 10 of this title.

(d) The provisions of subsection (b) of this section shall not apply unless within ninety (90) days following the date of enactment of this section, the UST Board transfers, or causes to have transferred from a trustee or other custodian, to the retirement system, an amount equal to the sum of the employees contribution accumulation and the employer contribution accumulation. The amount of transfer shall be determined by the retirement board at full actuarial cost as defined by Rhode Island general law 36-8.1-9 for the period of service December 29, 2002 to the transfer date. This will be reduced by the transfer to the retirement board of any and all contributions made to the UST Board's Simple IRA by and on behalf of the transferred employees.

(e) Transferred employees who return to service with the state of Rhode Island directly from uninterrupted employment with the Rhode Island Underground Storage Tank Financial Review Board, henceforth referred to as "UST Board" shall have their length of service at the UST Board deemed to be uninterrupted active state service for purposes of service credits in the state retirement system.

SECTION 5. This article shall take effect as of July 1, 2006.