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
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