49-1006.02. Insurance primacy; requirements; fund access

A. For owners or operators that satisfy financial responsibility requirements through insurance, the following apply:

1. The policy that covers the underground storage tank system at the time the release is discovered shall be primary to eligibility under sections 49-1017 and 49-1054.

2. The owner or operator is not required to exhaust insurance coverage in order to be eligible under sections 49-1017 and 49-1054.

3. Except as provided in subsection C of this section, eligibility under sections 49-1017 and 49-1054 is contingent on filing a timely insurance claim under the policy and pursuing that claim until a denial is received or, after assistance from the department as prescribed in section 49-1006.01, subsection D, until the department determines that the claim has been constructively denied.

4. An owner or operator that fails to pursue an insurance claim is no longer eligible under sections 49-1017 and 49-1054.

B. An owner or operator that satisfies financial responsibility requirements through insurance and that will not receive payment from its insurance provider until after the expenditure of at least fifty thousand dollars per facility as provided in an insurance policy that is in effect on April 1, 2015 or that satisfies financial responsibility requirements through an alternative financial responsibility mechanism is eligible under sections 49-1017 and 49-1054 after meeting a cost sharing obligation by payment of the first fifty thousand dollars per facility for work that is conducted on or after January 1, 2016. This eligibility is subject to the limits prescribed in section 49-1054, subsection A and is subject to the preapproval process prescribed in section 49-1051. Except as provided in subsection C of this section, eligibility pursuant to this subsection for owners or operators that meet financial responsibility requirements through insurance is contingent on providing timely notice of the release to the insurance carrier under the policy and that eligibility ends on the date that the insurer is obligated to provide payment under the policy.

C. An owner or operator that satisfies financial responsibility requirements through insurance and that had a release reported between July 1, 2006 and December 31, 2015, that requires additional corrective action is eligible under sections 49-1017 and 49-1054 subject to the preapproval process prescribed in section 49-1051 without filing a timely claim against its insurance carrier if the owner or operator was in compliance with financial responsibility requirements at the time of the release. The maximum amount eligible for reimbursement under this subsection is five hundred thousand dollars per facility after meeting a cost sharing obligation by payment of the first fifty thousand dollars per facility for work conducted on or after January 1, 2016 and without any reductions for payments made pursuant to Laws 2015, chapter 247, section 25, as amended by Laws 2018, chapter 299, section 2.