New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 5 - PETROLEUM STORAGE TANKS › Part 123 - CORRECTIVE ACTION FUND ADMINISTRATION › Section 20.5.123.2310 - CORRECTIVE ACTION ELIGIBLE AND INELIGIBLE COSTS AND EXPENDITURES FOR STATE-LEAD AND RESPONSIBLE PARTY-LEAD SITES

Current through Register Vol. 35, No. 13, July 16, 2024
A. Payments shall be made only for corrective
				action conducted by firms qualified under 20.5.122 NMAC or in accordance with
				Subsection H of 20.5.119.1900 NMAC.
B. No expenditures from the fund shall be
				paid to or on behalf of owners or operators for corrective action, other than
				the minimum site assessment or any sampling done for purposes of Paragraph (3)
				of Subsection A of 20.5.119.1921 or 20.5.119.1929 NMAC or Paragraph (2) of
				Subsection A of 20.5.120.2018 or 20.5.120.2026 NMAC, where the corrective
				action was conducted by firms or entities that are subsidiaries, parents or
				otherwise affiliate firms or entities of the owner or operator.
C. Payments shall be made for only those
				deliverables that the department has approved as satisfactory in writing, as
				required by 20.5.123.2309 NMAC.
D.
				For USTs, payment shall not be made for corrective action performed on or after
				September 22, 1992, if the owner or operator does not obtain department
				approval of workplans and costs prior to work being performed or costs
				incurred, exclusive of initial response or initial abatement measures performed
				in accordance with 20.5.119.1901 or 20.5.119.1902 NMAC or 20.5.120.2001 or
				20.5.120.2002 NMAC. For ASTs, payment shall not be made for corrective action
				performed on or after June 14, 2002, if the owner or operator does not obtain
				department approval of workplans and costs prior to work being performed or
				costs incurred, exclusive of initial response or initial abatement measures
				performed in accordance with 20.5.119.1901 or 20.5.119.1902 NMAC.
E. Costs eligible for payment from the fund
				are all costs, except those excluded by Subsections H and I of this section,
				that are reasonable and necessary to confirm releases in accordance with
				20.5.118 NMAC, to complete the minimum site assessment in excess of the
				deductible, and to complete corrective action beyond the minimum site
				assessment, in accordance with 20.5.119 NMAC or 20.5.120 NMAC, the department's
				fee schedule, and any workplan required by 20.5.123.2309 NMAC and approved by
				the department.
F. Before making
				payments, the department shall determine that the owner or operator has
				reimbursed the department for all federal leaking underground storage tank
				(LUST) trust funds expended for contractual services at the site.
G. Unpaid invoices are eligible for payment
				on an assignment basis from the applicant to the party who rendered the
				invoiced services or goods, or the party who made payment. Invoices resulting
				from assignments as described in this subsection are not contractual between
				the department and the party who rendered the service or the party who made
				payment. Payments of such invoices are made pursuant to provisions of Section
				74-6B-13 NMSA
				1978, including being subject to the availability of funds in the corrective
				action fund.
H. For USTs, costs
				ineligible for payment include, but are not limited to, the following:
(1) costs incurred prior to March 7,
				1990;
(2) costs incurred on or
				after September 22, 1992, that exceed those in the department fee schedule in
				effect at the time the work was performed;
(3) costs paid or reimbursed by insurance
				companies or any other third party as described in 20.5.123.2319
				NMAC;
(4) unpaid invoices, unless
				allowed under Subsection F of this section;
(5) costs of removing, repairing,
				retrofitting or replacing any USTs;
(6) costs of destroying, repairing,
				relocating or constructing any utility line unless required for cost-effective
				remediation or in response to a threat to public health, safety or welfare, or
				the environment, as determined by the department;
(7) costs of destroying any structure unless
				required for cost-effective remediation or in response to a threat to public
				health, safety or welfare, or the environment, as determined by the
				department;
(8) costs of repairing
				or replacing any remediation equipment or groundwater monitoring wells
				negligently or intentionally damaged or destroyed by the owner or
				operator;
(9) insurance premiums,
				the loss of interest on funds used to pay for a minimum site assessment, or
				loss of business;
(10) attorneys'
				fees or other legal costs;
(11)
				costs of monitoring a contractor and the owner's, operator's and designated
				representative's participation in the contractor selection process;
(12) costs associated with real estate
				transactions;
(13) rush charges for
				laboratory or other services, unless required by the department;
(14) payment made to property owners for
				property access to install or place monitoring wells or other
				investigation-related or remediation-related equipment;
(15) economic losses and liability to third
				parties;
(16) any markup on costs,
				to include subcontractor costs;
(17) costs associated with corrective action
				that fails to conform with the preapproved workplan or with the requirements of
				20.5.119 NMAC or 20.5.120 NMAC;
(18) costs associated with releases from ASTs
				with capacities 55,000 gallons and greater that are part of airport hydrant
				fuel distribution systems, USTs with field constructed tanks, or hybrid storage
				tank systems;
(19) costs associated
				with releases from piping attached to an AST with a capacity of 55,000 gallons
				or greater;
(20) costs associated
				with releases from piping attached to a hybrid storage tank system;
				and
(21) costs associated with
				releases from piping attached to unregulated storage tank systems.