1. (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.
2. (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.

3. (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. (1) the written contract (e.g., a settlement agreement) or judgment requiring the payment of compensation to the claimant.
   2. (2) the pleadings in any underlying lawsuit, demands or any other request for compensation that relates to the compensation paid to the claimant.
   3. (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. (4) any other information or supporting documentation reasonably required by the Division to explain the purpose(s) of the compensation received by the claimant.

4. (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. (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. (2) the contract requires the claimant to remit any reimbursement received from the Fund to the person advancing or incurring the costs;
   3. (3) the claimant remits the Fund reimbursement to the person who advanced or incurred the costs pursuant to the contract; and,
   4. (4) the claimant does not benefit, directly or indirectly, from this contractual payment agreement.

5. (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. (1) The insurance contract explicitly coordinates insurance benefits with the Fund and requires the claimant to do both of the following:

      1. (A) maintain the claimant's eligibility for reimbursement of costs from the Fund by complying with all applicable eligibility requirements, and
      2. (B) reimburse the insurer for costs paid by the insurer pending reimbursement of those costs by the Fund.
   2. (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.

6. (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. 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.

      (actual legal fees and costs) x [(benefit to the Fund)/(total settlement or judgment amount)]

   2. 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.
   3. (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.
   4. (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.

   5. (3) The Fund shall not bear a fair share if both of the following are met:

      1. (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
      2. (B) all of the claimant's documented costs of obtaining the settlement or judgment have been met.

   (1)(A) The Fund's fair share shall be equal to the lesser of 1. or 2. below:

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.

History

1. New section filed 12-2-91 as an emergency; operative 12-2-91. Text remains in effect uninterrupted pursuant to Health and Safety Code section 25299.77 (Register 92, No. 9).

2. Editorial correction of printing errors in History 1. (Register 92, No. 43).

3. Amendment filed 12-27-94 as an emergency; operative 12-27-94 (Register 94, No. 52). Notwithstanding Chapter 3.5 (commencing with section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, this section shall not be repealed by OAL and shall remain in effect until revised by the State Water Resources Control Board, pursuant to Health and Safety Code section 25299.77, subdivision (b).

4. Amendment of subsections (a) and (b) filed 8-8-96; operative 8-8-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 32).

5. Amendment of section heading, section and Note filed 10-27-2000; operative 11-26-2000 (Register 2000, No. 43).

6. Amendment of subsections (c)-(c)(3), repealer of subsection (d), new subsections (c)(4)-(d)(4) and amendment of subsections (f)(1)(A)-(f)(1)(A)2. filed 7-6-2004; operative 8-5-2004 (Register 2004, No. 28).