49-1001.01. Definition of owner; rules

A. In this chapter, " owner" of an underground storage tank means a person who either:

1. Holds a legal, equitable, or possessory interest of any kind in an underground storage tank.

2. Held at the time of a release, or immediately before an underground storage tank was last operated, a legal, equitable or possessory interest of any kind in the underground storage tank.

B. A person who acquires ownership or control of property where an underground storage tank is located is not the owner of the underground storage tank if either of the following applies:

1. The person, after conducting a due diligence investigation immediately prior to acquiring ownership of the property, did not know and had no reason to know that the underground storage tank was located on the property. Due diligence shall consist of performing a phase I environmental assessment of the property which meets the requirements of ASTM standard E-1527-93 or E-1528-93, or other generally accepted commercial practices or standards for due diligence performed prior to the adoption of this standard.

2. The person has not placed regulated substances in the underground storage tank and has not dispensed regulated substances from the underground storage tank. For the purposes of this paragraph, dispensing does not mean emptying the underground storage tank for purpose of closure.

C. A person who holds indicia of ownership primarily to protect a security interest in either the petroleum underground storage tank or in the property on which the petroleum underground storage tank is or was located but who does not participate in the management of the underground storage tank and who is not otherwise engaged in petroleum refining or marketing is not an owner for purposes of this chapter.

D. A person who holds indicia of ownership as prescribed by subsection C of this section and who acquires ownership or control of a petroleum underground storage tank through foreclosure of the property where a petroleum underground storage tank is located shall not be deemed an owner and shall not be required to investigate a release or take corrective action in response to a release if the person does all of the following:

1. Complies with the notification requirements prescribed by section 49-1002.

2. Complies with the reporting requirements prescribed by section 49-1004, subsections A and C to the extent that the information is known to the person at the time of the report.

3. Temporarily or permanently closes the petroleum underground storage tank as prescribed by section 49-1008.

4. Divests itself of the property in a reasonably prompt manner using whatever commercially reasonable means are relevant or appropriate with respect to the property, taking into consideration all of the facts and circumstances.

E. A fiduciary is not an owner or operator for purposes of this chapter, except if the appointment of the fiduciary is for the purpose of avoiding liability under this chapter. This subsection does not preclude claims against assets held in an estate, a trust or any other fiduciary capacity that contains an underground storage tank in which regulated substances are placed or dispensed. Those claims may be asserted against a fiduciary in its representative capacity without regard to whether the fiduciary is personally liable, and the liability of the fiduciary is limited to the value of the estate, trust or other property that is held in a fiduciary capacity. A fiduciary may not be a fiduciary and grantor of the same fiduciary estate.

F. The director may adopt rules to implement subsection E of this section.