Current through Register Vol. 35, No. 6, March 26, 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.
I. For ASTs, costs ineligible for
payment include but are not limited to the following:
(1) costs incurred prior to July 1,
2001;
(2) costs incurred 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 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 ASTs;
(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.
