Current through Register Vol. 35, No. 6, March 26, 2024
A.
The department shall make compliance determinations in the following
circumstances:
(1) Corrective action by owner
or operator. Pursuant to Section
74-6B-13 NMSA
1978, in order to be eligible for payment of corrective action costs other than
those costs associated with a minimum site assessment, the owner or operator
shall be in compliance with the requirements of Subsection B of Section
74-6B-8
NMSA 1978, as outlined in 20.5.123.2304 NMAC, during the owner or operator's
term of ownership or operation for all storage tanks owned or operated at the
site where the corrective action was or is being taken. Compliance for
underground storage tanks ("USTs") shall be determined for the period from
March 7, 1990 to the date the department determines that corrective action is
complete. Compliance for above-ground storage tanks ("ASTs") shall be
determined for the period from July 1, 2001 to the date the department
determines that corrective action is complete.
(2) Corrective action by the department.
Before bringing an action in district court against an owner or operator to
recover expenditures from the fund incurred by the department to take
corrective action at a site, the department shall determine, in accordance with
20.5.123.2304 NMAC, whether the owner or operator has complied with the
requirements of Subsection B of Section
74-6B-8
NMSA 1978, during their term of ownership or operation for all storage tanks
owned or operated at the site. Compliance for USTs shall be determined for the
period from March 7, 1990 to the date the department determines that corrective
action is complete. Compliance for ASTs shall be determined for the period from
July 1, 2001 to the date the department determines that corrective action is
complete.
B. The owner
or operator shall request a compliance determination before submitting the
initial request for payment of the costs of corrective action, other than the
costs of an MSA. Once the department has completed an initial compliance
determination at the owner or operator's request, the department may initiate
and make separate compliance determinations at one or more phases of corrective
action, other than an MSA, for which payment is requested. If the department
determines that a tank owner or operator is not in compliance with
20.5.123.2304 NMAC, the tank owner or operator will be ineligible for payment
of corrective action costs, other than an MSA.
C. No compliance determination is necessary
when, pursuant to Section
74-6B-13 NMSA
1978, an owner or operator applies to the department for payment of MSA costs
exceeding the deductible. However, prior to payment, the department shall
determine that the work performed meets the definition of an MSA provided in
20.5.101.7 NMAC.
