Section 334.308 - Allowable Costs and Restrictions on Allowable Costs(a) Only those costs that are allowable costs under the terms of this section shall be subject to reimbursement under this subchapter.(b) Allowable costs are those costs and expenses directly required for the performance of necessary corrective action in accordance with commission rules.(c) Unless otherwise specified in subsection (g) of this section, allowable costs shall include, but not be limited to, the following:(1) abatement of impacts and immediate threats of impact to human health, safety, and the environment, including measures necessary to prevent further releases and to identify and mitigate all fire, explosion, and human exposure hazards associated with a release;(2) removal of phase-separated product;(3) temporary provision of an alternate water supply. The agency shall determine the length of time during which the cost of water supply may be allowable, the amounts of water which may be allowable, the uses for which water supply may be allowable, and other conditions of approval;(4) collection and analysis of surface and subsurface soil and water, phase-separated product, and vapor samples;(5) emplacement of monitor wells;(6) removal, storage, treatment, recycling, transport, and disposal of phase-separated product, sludges, vapors, contaminated soils, contaminated water, and other wastes and contaminated articles, in accordance with applicable laws;(7) removal, disposal, and replacement (including transport) of soils and pavement where removal is necessary to the performance of corrective action;(8) tank system integrity testing in accordance with the methods prescribed by this chapter when such testing: (A) is necessary to the performance of corrective action;(B) has been specifically requested by the agency staff on or after May 31, 1989; or(C) has been specifically ordered by the commission on or after May 31, 1989;(9) identification and testing of affected or potentially affected drinking water sources;(10) design of plans for site assessment and remediation;(11) acquisition, installation, startup, operation, and maintenance of remediation systems, including monitoring;(12) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when necessary for performance of corrective action, and when removed after October 1, 1992, and before June 6, 1993;(13) tank removal (as defined in this subchapter), transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements under Subchapter D of this chapter (relating to Release Reporting and Corrective Action), in accordance with applicable law when necessary for the performance of corrective action and performed before March 12, 1993;(14) a portion of costs, as specified in this section, of tank removals, transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements under Subchapter D of this chapter, when necessary for the performance of corrective action and performed on or after March 12, 1993. Reimbursement under this paragraph performed on or after March 12, 1993, shall be based on the volume of the tank and shall have a maximum reimbursable limit of $8,000 per leaking petroleum storage tank site. For underground storage tanks (USTs) having a volume of 5,000 gallons or less, the portion of reimbursable costs under this paragraph for each such tank is $1,000. For USTs having a volume of greater than 5,000 gallons, the portion of reimbursable costs under this paragraph for each such tank is $2,000;(15) permanent abandonment in-place, of a tank system, including compliance with applicable requirements under Subchapter D of this chapter, where abandonment in-place rather than tank system removal is deemed by the agency to be necessary to avoid destruction of substantial or significant surface improvements and conducted before June 6, 1993;(16) temporary relocation of utility structures when necessary to the performance of corrective action;(17) preparation of technical reports required in accordance with the requirements of Subchapter D of this chapter;(18) the reasonable, as determined by the agency and as limited by the reimbursable cost specifications, value of necessary time to obtain access to property outside of the facility boundaries where such access is necessary for the performance of corrective action;(19) the reasonable value, as determined by the agency and as limited by the reimbursable cost specifications, of necessary time spent by the applicant in planning and administering the applicant's corrective action plan;(20) performance of any corrective action measure which is specifically required by an order of the commission or a written request by agency staff on or after September 1, 1987;(21) state and federal sales taxes applicable to items which are otherwise allowable costs under this section; and(22) any other costs determined by the agency to be allowable in accordance with the provisions of this subchapter.(d) The costs of abatement or corrective action taken in response to a release of hydraulic fluid from a hydraulic lift system are allowable costs in situations where: (1) the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility where the hydraulic lift system was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and(2) upon request by the agency, the eligible owner or operator demonstrates that a release from the hydraulic lift system is not mixed with any substance except for petroleum products from a petroleum storage tank system, spent oil from a spent oil tank located at a vehicle service and fueling facility (or another substance contained in such spent oil tank), or another substance that was contained in the hydraulic lift system owned or operated by the person claiming reimbursement.(e) The costs of abatement or corrective action taken in response to a release of spent oil from a spent oil tank are allowable costs under the following:(1) the spent oil was released from a spent oil tank located at a vehicle service and fueling facility where the spent oil tank was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and(2) upon request by the agency, the eligible owner or operator demonstrates that a release of spent oil is not mixed with any substance except for petroleum products from a petroleum storage tank system, or hydraulic fluid (or another substance that was contained in the hydraulic lift system) or another substance that was contained in the spent oil tank owned or operated by the person claiming reimbursement.(f) The costs of excavation, disposal, or treatment of backfill material generated during the tank removal process and any additional sampling and reporting required under Subchapter D of this chapter required because of the disposal or treatment of the backfill material are allowable costs where the concentration of constituents of any substance listed in § 334.301(a) of this title (relating to Applicability of this Subchapter) in the backfill material exceed a standard for which the agency will permit the backfill material to be returned to the original tank pit excavation and a prior written directive is obtained from the agency prior to implementation.(g) The following types of costs are those which will not be considered allowable costs under this subchapter: (1) the cost of replacement, repair, and maintenance of affected tanks and associated piping;(2) the cost of upgrading existing affected tanks and associated piping, including, but not limited to, the costs of corrosion protection, release detection, spill and overfill protection, or any other upgrading required by Subchapter C of this chapter (relating to Technical Standards);(3) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed prior to October 1, 1992, or on or after March 12, 1993;(4) tank removal (as defined in this subchapter) and transport, and disposal of the components of the underground or aboveground tank, unless otherwise specified in subsection (c)(13) and (14) of this section;(5) permanent abandonment in-place of a tank system, where abandonment in-place rather than tank system removal is deemed by the agency to be necessary to avoid destruction of substantial or significant surface improvements when conducted on or after March 12, 1993;(6) loss of income or profits, including without limitation, the loss of business income arising out of the review, processing, or payment of an application or request for assistance under this subchapter;(7) decreased property values;(8) bodily injury or property damage;(10) any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter;(11) the costs of making improvements to the facility beyond those that are required for corrective action;(12) costs associated with corrective action performed for any purpose where no release of petroleum product above action levels is discovered, except when the corrective action has been ordered by the commission;(13) costs of compiling and storing records relating to costs of corrective action;(14) costs of corrective action taken in response to the release of a substance which is not a petroleum product as defined in § 334.322 of this title (relating to Subchapter H Definitions);(15) costs of tank integrity testing when it is not specifically required by this chapter, requested by the agency staff, or ordered by the commission;(16) costs of any corrective action incurred by an owner or operator on or after the date that the executive director commences corrective action at the owner's or the operator's facility under § 334.84 of this title (relating to Corrective Action by the Agency), unless authorized in writing by the agency;(17) costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common-carrier railroad;(18) any activities, including those required by this chapter, which are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste;(20) excluding releases identified under subsections (d) and (e) of this section, the cost of abatement or corrective action taken in response to a release of: (A) a regulated substance, which is not a petroleum product; and(B) a release of a petroleum product that has commingled with a regulated substance, that is not a petroleum product;(21) the costs of the installation or construction of on-site equipment, structures, or systems used in the extraction or management of wastes, except soil excavation, landfill disposal, well sampling, or monitoring, unless: (A) the plans and specification for such equipment, structures, or systems are properly sealed by a licensed professional engineer; and(B) the construction and installation of such equipment, structures, or systems are performed under the supervision of a licensed professional engineer;(22) work not pre-approved under § 334.310(f) of this title (relating to Requirements for Eligibility) or pre-approved work performed incorrectly and rejected by the agency; or(23) costs attributable to fraud.30 Tex. Admin. Code § 334.308
The provisions of this §334.308 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532