N.M. Admin. Code § 20.5.123.2310

Current through Register Vol. 35, No. 23, December 10, 2024

Section 20.5.123.2310 - CORRECTIVE ACTION ELIGIBLE AND INELIGIBLE COSTS AND EXPENDITURES FOR STATE-LEAD AND RESPONSIBLE PARTY-LEAD SITES

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;