7 CCR 1101-14-8-1 - Eligibility

(a) Only the following persons are potentially eligible for reimbursement from the Fund, provided they meet the other criteria:
(1) The current owner/operator of a regulated UST or AST system;
(2) Any past owner/operator of a regulated UST or AST system; or
(3) Other persons considered not responsible for the release as set forth in C.R.S. § 8-20.5-206(3)(a) through (e) and CRS 8-20.5-303(3)(a) through (e).
(b) Insurance companies or their agents are not eligible to make claims against the fund.
(c) An applicant making any claim against the Fund shall be held accountable for compliance with the following requirements.
(1) Each applicant must meet the owner/operator criteria for corrective action as established by the Director.
(2) When required by the Director, an owner/operator must demonstrate that accurate and complete records are maintained that confirm a release detected on or after July 1, 1989, except for those releases discussed in 8-1(g).
(3) Each owner/operator must have registered the tank(s) and paid the current and past annual tank registration fees. Payment penalties and percent reductions may be imposed by the Committee for non-payment or late payment of registration fees for each petroleum storage tank owned.
(4) Each owner/operator must have paid the environmental response surcharge applied to petroleum products in Colorado and must not be in default on any obligation caused by the environmental response surcharge.
(5) Each owner/operator must be in substantial compliance (as determined by the Committee) with all Colorado laws and regulations that address the handling, storage, record keeping, and dispensing of regulated substances, including but not limited to C.R.S. § 8-20-230, 8-20-231, all of 8-20.5, and NFPA Code 30 "Flammable and Combustible Liquids" and NFPA Code 30A "Code for Motor Fuel Dispensing Facilities and Repair Garages", to be eligible for participation in the Fund.
(6) Each owner/operator must demonstrate evidence of FR of $10,000 for corrective action and $25,000 for compensation of third-party personal injury or property damage through the mechanisms or combination of the mechanisms contained in the financial responsibility established by the Director and in C.R.S. Sections 8-20.5-206 and 303.
(7) Each owner/operator must demonstrate that allowable costs have exceeded the deductible (as described in subsection (6)) for assessment and corrective action per C.R.S. § 8-20.5-208, 209, and 304.
(8) Each owner/operator must comply with the criteria for reporting of a release to the Director, including but not limited to C.R.S. § 8-20.5-208.
(d) A mortgagee making any claim against the Fund shall comply with the following requirements:
(1) A mortgagee whose mortgage or deed of trust is dated before September 30, 1995 is eligible to participate in the Fund if the mortgagee has acquired, by foreclosure or receipt of a deed in lieu of foreclosure, the property on which the petroleum tank system is located and each of the following conditions has been met:
(i) The mortgagee has not actively managed the property during the period that it held a security interest;
(ii) The mortgagee has notified the Director of his/her acquisition of the property by certified mail (return receipt requested) or other documented delivery within 30 working days of the acquisition, if acquired after September 30, 1995;
(iii) The mortgagee has complied with all applicable corrective action requirements; and
(iv) The mortgagee is not affiliated with or related to the mortgagor.
(2) A mortgagee whose mortgage or deed of trust is dated on or after September 30, 1995, is eligible to participate in the Fund if the mortgagee meets all provisions of subsection (1) above and has a Certificate of Eligibility issued pursuant to subsection (3) below. There must be an operating petroleum storage tank system, which is not orphaned or abandoned, on the property at the time a Certificate of Eligibility is issued. A Certificate of Eligibility may be issued at any time before foreclosure or receipt of a deed in lieu of foreclosure; however, if the certificate is issued prior to the loan closing, the certificate will only be effective upon closing. A Certificate of Eligibility will not cover contamination detected on a property before the Certificate of Eligibility is issued.
(3) A Certificate of Eligibility may be issued to a mortgagee if the site is in compliance with all applicable laws, a Petroleum Storage Tank Status Sheet has been properly completed, and one of the following conditions has been satisfied:
(i) For a petroleum UST system:
(A) Documentation has been provided to the Director showing that all petroleum storage tanks and tank lines at the site passed a tightness test no more than 60 calendar days prior to the completion of the Petroleum Storage Tank Status Sheet; or
(B) Documentation has been provided to the Director showing tanks and lines at the site are monitored by a properly installed and operating third-party certified monthly monitoring device; or
(C) Documentation has been provided to the Director showing that an environmental site assessment performed no more than 60 calendar days prior to completion of the Petroleum Storage Tank Status Sheet indicates the site does not require site characterization or corrective action.
(ii) For an AST system, documentation has been provided to the Director showing that all underground lines at the site passed a tightness test no more than 60 calendar days prior to completion of the Petroleum Storage Tank Status Sheet and:
(A) The AST system meets the standards in 3-2-3(e) if installed before October 1, 1994;
(B) The AST system meets the standards for ASTs installed after September 30, 1994; or
(C) Documentation has been provided to the Director showing that an environmental site assessment performed no more than 60 calendar days prior to completion of the Petroleum Storage Tank Status Sheet indicates the site does not require initial site characterization or corrective action.
(4) A mortgagee who is eligible to participate in the Fund pursuant to these regulations may sell the property and transfer the Certificate of Eligibility to the buyer. The buyer may participate in the Fund pursuant to C.R.S. § 8-20.5-206(3) and 303(3) C.R.S., provided that:
(i) The buyer is not a former tank owner/operator of the site or an affiliate or relation to such a former tank owner/operator;
(ii) The buyer, within three months of acquiring the property from the mortgagee, completes and submits to the Director sufficient documentation to show that the site is in compliance with applicable regulations; or, within three months of acquiring the property, the Director approves a plan, submitted by the buyer, showing how and when the site will be brought into compliance; and,
(iii) Within six months of acquiring the property, the buyer either provides documentation to the Director showing that an environmental site assessment indicates the site does not require initial site characterization or corrective action, in which case the transferred Certificate of Eligibility is no longer a valid document; or, provides to the Director documentation that petroleum contamination is present on the property, in which case the transferred Certificate of Eligibility remains valid for the balance of the remediation, provided such remediation is conducted pursuant to Colorado statutes and regulations.
(e) Eligible Releases

Only releases satisfying all of the following criteria shall be considered eligible:

(1) The release must be accidental in nature;
(2) The storage tanks and related piping are regulated under these regulations and contain petroleum product regulated by these regulations;
(3) Subject to any Committee policies on reimbursement, the Director has approved the design for corrective action at the site; and
(4) Subject to any Committee policies on reimbursement, the Director has determined that the corrective action has, or when completed will have, adequately addressed the release in terms of protecting public health, welfare and the environment.
(f) Releases Not Eligible

Releases with the following criteria shall be considered not eligible:

(1) Releases from USTs and ASTs used to store petroleum products intended for aviation purposes.
(2) Releases from USTs and ASTs used to store petroleum products intended for use by railroad equipment or locomotives.
(3) Releases from USTs and ASTs that are exempt or deferred in 2-1-1(b) and (c) and 3 -1(b).
(4) Releases at sites on the National Priorities List (NPL) or sites being cleaned up by the State under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). Owners and operators of tanks containing regulated substances other than petroleum are not eligible to the Fund but must demonstrate FR using some other approved FR mechanism.
(g) Eligibility of Expenses
(1) Only expenses incurred on or after July 1, 1989, are potentially eligible for reimbursement. All expenses incurred before July 1, 1989, are not eligible for reimbursement.
(2) For releases detected on or after December 22, 1988, but before July 1, 1989, expenses incurred on or after July 1, 1989, are potentially eligible for reimbursement only if the original application was submitted before January 1, 1992. This January 1, 1992, deadline does not apply to applicants determined to bear no responsibility for the release pursuant to statute.
(3) Expenses related to releases detected before December 22, 1988, are not eligible for reimbursement.
(4) Expenses related to tanks closed in place or removed before December 22, 1988, are not eligible for reimbursement. This December 22, 1988, deadline does not apply to applicants determined to bear no responsibility for the release pursuant to statute.
(h) In addition to the above, the following subsections apply to all ASTs,
(1) The Director will make positive eligibility recommendations to the Committee for facilities that were in operation prior to October 1, 1994, provided that:
(i) Existing ASTs were installed and operated in substantial compliance with the applicable statutes and regulations that were in effect at the time the tank system was installed; and
(ii) Existing ASTs that were required to prepare and implement a "Spill Prevention, Control and Countermeasures" (SPCC) plan as specified in the 40 CFR Part 112 were in substantial compliance with that requirement.

[Note: Installation and operating rules can be found in NFPA Code 30 "Flammable and Combustible Liquids" and NFPA Code 30A Code for Motor Fuel Dispensing Facilities and Repair Garages that were in effect at the time of installation.]

(2) The Director will also make positive eligibility recommendations to the Committee for facilities that were in operation prior to October 1, 1994, that are not able to demonstrate 100% compliance with the regulations in effect at the time the ASTs were installed, provided that:
(i) There are no serious safety violations, and the safety concerns listed here are satisfied.
(A) Adequate ventilation, either natural or forced must exist to guarantee that flammable liquid vapors cannot build up to 25% of the lower flammable limit anywhere because of the presence of the tank facility in question.
(B) Normal vent lines must be of sufficient capacity to ensure that no fuel drop will cause the pressure inside the tank to exceed the test pressure. A spark arrester cap is required at the end of the vent line and it must be located "in the clear" and at least 12 feet above ground level.
(C) A label such as U.L. 142, UL ABOVEGROUND TANK, or equivalent must be attached to the tank to verify that it meets the emergency relief venting requirement of NFPA 30 "Flammable and Combustible Liquids Code".
(D) Adequate spill control, overfill prevention control, and secondary containment methods or devices must be provided and in regular use at the facility; and
(ii) A SPCC plan, if required for the facility, has been developed, approved and followed.
(3) The Director will consider closure of a facility and/or removal of non-compliant tanks to be a mitigating factor in making the recommendation to the Committee.
(4) Nothing herein shall be construed to prevent the Committee from imposing percentage reductions upon applicants who are in substantial compliance with regulations but not in total compliance.

Notes

7 CCR 1101-14-8-1
37 CR 18, September 25, 2014, effective 10/15/2014 39 CR 18, September 25, 2016, effective 1/1/2017 40 CR 05, March 10, 2017, effective 5/1/2017 40 CR 07, April 10, 2017, effective 5/1/2017 41 CR 07, April 10, 2018, effective 5/1/2018 42 CR 04, February 25, 2019, effective 3/17/2019

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