New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 5 - PETROLEUM STORAGE TANKS › Part 121 - CORRECTIVE ACTION FUND USE AND EXPENDITURES › Section 20.5.121.2105 - ORDER OF PAYMENTS IN CASE OF INSUFFICIENT FUNDS

Current through Register Vol. 35, No. 13, July 16, 2024
A. If, after the department has determined
				that the owner or operator is in substantial compliance, the department
				determines that the fund budget or the fund balance is insufficient to cover
				the amount requested for payment, the department shall promptly notify the
				owner or operator. Payment for eligible costs shall occur when sufficient
				amounts are available in the fund budget or the fund, subject to the provisions
				of this section.
B. If the fund
				budget or the fund balance is insufficient to pay all applications for payment
				under 20.5.123.2318 NMAC but the fund remains an approved financial
				responsibility mechanism under 20.5.117.1711 NMAC, the department shall pay
				applications for payment for approved corrective action in order of priority as
				established in accordance with this part from the funds available, so long as
				funds are available.
C.
				Applications for sites of equal score based on the priorities established in
				this part shall be paid in order of date of receipt of complete applications
				for payment. For applications for sites of equal score with the same date of
				receipt, the earliest date on which a corrective action was taken as evidenced
				by the date of the earliest invoice included in the application shall determine
				the order of payment.
D. When the
				fund budget or the fund balance is insufficient to pay all applications for
				payment under 20.5.123.2318 NMAC and the fund is no longer an approved
				financial responsibility mechanism, the department shall make payments
				according to priority rank as established in this part and in the following
				percentages, so long as funds are available:
(1) one hundred percent of all reasonable and
				necessary eligible costs incurred to complete a minimum site assessment in
				excess of the deductible;
(2) one
				hundred percent of all reasonable and necessary eligible costs incurred to
				conduct a secondary investigation in accordance with 20.5.119.1910 or
				20.5.120.2010 NMAC;
(3) in the case
				of reasonable and necessary costs incurred to complete corrective action other
				than the minimum site assessment and secondary investigation, according to the
				following formulae:
(a) for owners or
				operators of two or fewer facilities used for retail gasoline sales and whose
				facilities have less than 40,000 gallons combined total of product dispensed
				monthly, averaged over the last two years of operation: first priority LST
				ranked sites: one hundred percent; second priority LST ranked sites:
				ninety-five percent; third priority LST ranked sites: ninety percent;
				or
(b) for sites owned or operated
				by other owners or operators: one hundred percent for first priority LST ranked
				sites. The percentage of payment for second and third priority LST ranked sites
				shall be based on the ending quarterly unobligated balance of the fund
				proportional to the amount of each application for payment received in that
				quarter for these sites. The quarters end on June 30, September 30, December 31
				and March 31. The percentage of payment equals the unobligated fund balance on
				the last day of the quarter divided by the dollar amount of reasonable and
				necessary eligible costs of applications for payment received in the quarter,
				not to exceed one hundred percent. For purposes of this subparagraph,
				"unobligated balance" or "unobligated fund balance" means corrective action
				fund equity less all known or anticipated liabilities against the fund;
				and
(4) payment for
				remaining eligible costs shall be made pursuant to Subsection E of this
				section.