Colorado Workforce by the Colo. Dept. of Labor and Employment

(2) When required by the State Inspector of Oils, an owner/operator must demonstrate that accurate and complete records are maintained that confirm a release occurrence detected on or after July 1, 1989, except for those occurrences contained in section 8-1(f); and

(3) Each owner/operator must have registered the tank(s) and paid the current and past annual tank registration fees on a timely basis for each petroleum storage tank owned; and

(4) Each owner/operator must have paid the environmental surcharge applied to petroleum products in Colorado; and must not be in default on any obligation caused by the environmental surcharge; and

(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 combustible and flammable liquids; including but not limited to Sections 230 and 231 of Title 8 Article 20 and Title 8 Article 20.5 of the Colorado Revised Statutes, 1986 Replacement Volume as amended; and the current versions of Code 30 and Code 30A of the National Fire Protection Association, to be eligible for participation in the Petroleum Storage Tank Fund; an d

(6) Each owner/operator must demonstrate evidence of financial responsibility of $10,000 dollars for corrective action and $25,000 dollars for compensation of personal injury and property damage through the mechanisms or combination of the mechanisms contained in the financial eligibility regulations established by the State Inspector of Oils; and

(7) Each owner/operator must demonstrate that deductible allowable costs (the amount of financial responsibility as defined in C.R.S. § 8-20.5-206 and 303, more commonly known as leak cleanup costs of ten thousand dollars and third party liability costs of twenty-five thousand dollars per leak occurrence) for corrective action as per C.R.S. § 8-20.5-208, 209, and 304 have been exceeded ; and

(8) Each owner/operator must comply with criteria for reporting of a release to the State Inspector of Oils, including but not limited to C.R.S. § 8-20.5-208.

(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:

(A) The mortgagee has not actively managed the property during the period that it held a security interest; and,

(B) The mortgagee has notified the State Inspector of Oils of its acquisition of the property by certified mail (return receipt requested) or other documented delivery within 20 business days of the acquisition, if acquired after September 30, 1995; and,

(D) The mortgagee is not affiliated 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, and a Petroleum Storage Tank Status Sheet has been properly completed, and one of the following subparts has been satisfied:

(A) For a petroleum UST system:

(i) Documentation has been provided to the State Inspector of Oils showing that all petroleum storage tanks and tank lines at the site passed a tightness test no more than 60 days preceding completion of the Petroleum Storage Tank Status Sheet; or

(ii) Documentation has been provided to the State Inspector of Oils showing tanks and lines at the site are monitored by a properly installed and operating third-party certified monthly monitoring device; or

(iii) Documentation has been provided to the State Inspector of Oils showing that an environmental site assessment performed no more than 60 days preceding completion of the Petroleum Storage Tank Status Sheet indicates the site does not require initial site characterization or corrective action.

(B) For a petroleum AST system, documentation has been provided to the State Inspector of Oils showing that all underground lines at the site passed a tightness test no more than 60 days preceding completion of the Petroleum Storage Tank Status Sheet and:

(i) The AST system meets the standards in section 3-3-16 if installed before October 1, 1994; or

(ii) The AST system meets the standards for ASTs installed after September 30, 1994; or

(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 § 8-20.5-206(3) and 303(3) C.R.S., provided:

(A) The buyer is not a former tank owner/operator of the site, or an affiliate or relation to such a former tank owner/operator; and,

(B) The buyer, within three months of acquiring the property from the mortgagee, completes and submits to the State Inspector of Oils sufficient documentation to show that the site is in compliance with applicable regulations; or, within three months of acquiring the property, the State Inspector of Oils approves a plan, submitted by the buyer, showing how and when the site will be brought into compliance; and,

(C) Within six months of acquiring the property, the buyer either provides documentation to the State Inspector of Oils 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 an operative document; or, provides to the State Inspector of Oils 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.

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

(1) The release must be accidental in nature; and

(2) The storage tanks and related piping are regulated under these regulations and contain petroleum product regulated by these regulations; and

(3) Subject to any Committee policies on reimbursement, the State Inspector of Oils has approved the design for corrective action at the site; and

(4) Subject to any Committee policies on reimbursement, the State Inspector of Oils has determined that the corrective action has, or when completed will have, adequately addressed the release in terms of public health, welfare and the environment.

(e) Insurance companies or their agents are ineligible to make claims against the fund.

(f)(1) Only expenses incurred on or after July 1, 1989 are potentially eligible for reimbursement. All expenses incurred before July 1, 1989 are ineligible 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 ineligible for reimbursement.

(4) Expenses related to tanks closed in place or pulled before December 22, 1988 are ineligible for the fund. This December 22, 1988 deadline does not apply to applicants determined to bear no responsibility for the release pursuant to statute.

(g) In addition to the above, the following subsections apply to all AST's:

(1) AST's used to store petroleum products intended for aviation purposes, and AST's used to store petroleum products intended for use by railroad locomotives, as well as ASTs not regulated by these regulations, are not eligible for participation in the Fund.

(2) The State Inspector of Oils will make positive eligibility recommendations to the Committee for facilities that were in operation prior to October 1, 1994 provided that:

(A) Existing petroleum ASTs were installed and operated in substantial compliance with the applicable Colorado laws and standards that were in effect at the time the tanks were installed; and

(B) Existing petroleum ASTs that were required to prepare and implement a "Spill Prevention, Control and Countermeasures" Plan as specified in the Federal Code of Regulations 40 C.F.R. Part 112 were in substantial compliance with that requirement.

[Note: Installation and operating rules will usually be found in a version of the National Fire Protection Codes 30 and 30A that was in effect at the time of installation]

(3) The State Inspector of Oils 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 rules in effect at the time they were installed, provided:

(A) There are no serious safety violations, and the safety concerns listed here are satisfied:

(i) 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.

(ii) 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.

(iii) A label such as U.L. 142, U.L. ABOVEGROUND TANK, or equivalent must be attached to the tank to verify that it meets the emergency relief venting requirement of NFPA 30 Section 2-3.5 and that the construction methods used will result in a safe and sound tank.

(iv) Adequate spill control, overfill prevention control, and secondary containment methods or devices must be provided and in regular use at the facility; and

(B) A Federal SPCC spill prevention control and counter measures plan for the facility has been developed and followed if such a plan is required.

(4) The State Inspector of Oils will consider closure of a facility and/or removal of non-compliant tanks to be a mitigating factor in making his recommendation to the Committee.

(5) 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.

8-2 Reimbursement.

(a) The owner/operator of the petroleum storage tanks from which a release has occurred, or another person eligible pursuant to statute, and for which partial or completed corrective action has been performed, or his duly authorized agent; may file an application for reimbursement.

(b) Claims for reimbursement shall be filed as follows:

(1) Filing shall include an original application form.

(2) Documents shall be addressed to:

Petroleum Storage Tank Committee
Department of Labor and Employment
Oil Inspection Section
1515 Arapahoe Street, T3, Suite 600
Denver, CO 80202-2117

(3) Documents shall be forwarded to the above address via one of the following:

(A) Regular mail;

(B) Certified mail, return receipt requested;

(D) Hand delivery.

(c) The date of filing of any document required to be filed with the Committee under these regulations shall be the date postmarked on the return receipt or the receipt date stamped on the document if there is no return receipt.

(d) An application for reimbursement shall be on a form provided by the State Inspector of Oils and shall contain any information required by the Committee or the State Inspector of Oils, including the following:

(1) Legible copies of invoices, providing a description of:

(A) any work performed;

(B) who performed the work;

(D) the dates the work was performed;

(E) the unit cost; and

(F) the total amount due or paid.

(2) Evidence that the amounts shown on the invoices for which reimbursement is requested have been paid in full by the claimant. The evidence must be either:

(A) Business receipts, indicating payments received;

(B) Fronts and backs of cancelled checks;

(C) The certification of a certified public accountant that the expenses for which reimbursement is requested have been paid in full; or

(D) Provided the parties are unaffiliated and unrelated, a notarized affidavit signed by the person who performed the corrective action, affirming that the amounts which the applicant represents as being paid to him were paid in full.

(3) An estimate of the costs, if any, of corrective action which has not yet been completed, but for which reimbursement ultimately may be claimed. This estimate may be used for planning purposes only and will not be binding for the purposes of payments from the fund.

(4) Any other information which the Committee may reasonably require.

(e) Subject to Committee policies regarding reimbursement, all applicants must comply with all corrective action requirements and a corrective action plan (including a technical and economic feasibility study) must be approved before costs which would be associated with the corrective action are eligible. The applicant can be required to provide proof that all corrective action requirements have been met.

(f) The applicant may file the application at any phase of the corrective action subject to any policies adopted by the Committee.

(g) Incomplete submittals shall suspend processing of applications.

(h) The following technical information may be required by the Committee or the State Inspector of Oils as part of any application for reimbursement:

(1) A detailed account of what corrective action has been taken, why specific actions were taken, when, by whom, and with what results.

(2) An estimate of other corrective action measures that may be required to remediate the facility and the estimated time required to complete such measures.

(3) The most recently required annual line and tank tightness test and release detection records covering the six month period prior to a release or detection of contamination.

(4) If the State Inspector of Oils or the Committee has any information indicating a separate release may have occurred, documentation that a release being cleaned up is not a new release requiring payment of a separate deductible.

8-3 Allowable Costs.

(a) Only those costs which are allowable costs pursuant to the terms of this section shall be subject to reimbursement.

(b) Allowable costs are those costs and expenses which arise directly from the performance of necessary corrective action in accordance with the requirements of the State Inspector of Oils subject to the limitations prescribed by this section.

(1) Abatement of impacts and immediate threats of impact to human health, safety, and the environment;

(2) Temporary provision of a water supply utilized specifically for domestic consumption;

(3) Collection and analysis of surface and subsurface soil and water, free product, and vapor samples;

(4) Emplacement of soil borings and/or monitor wells for remediation purposes;

(5) Removal, storage, treatment, recycling, transport, and disposal of free product, sludges, vapors, contaminated soils, contaminated water and other wastes and contaminated articles, in accordance with applicable laws;

(6) Removal and disposal (including transport) of soils and pavement where removal is necessary to the performance of corrective action;

(7) Identification and testing of affected or potentially affected drinking water sources;

(8) Design of plans for site assessment and remediation;

(9) Acquisition, installation, startup, operation and maintenance of site assessment and remediation systems, including monitoring;

(10) Temporary relocation of utility structures when necessary to the performance of corrective action;

(11) Preparation of technical reports required pursuant to the requirements of these regulations;

(12) The fair market value of access to property outside of the facility boundaries where such access is necessary for the performance of corrective action;

(13) Performance of any corrective action measure which is specifically required by a section of these regulations, or an order of the State Inspector of Oils, or a written request or confirmation by the Committee;

(14) Equipment costs which are related solely to remediation. If the equipment is purchased with fund money, the reimbursement amount shall be reduced by any salvage value of the equipment .

(15) Any other costs determined by the Committee to be allowable in accordance with the provision s of these regulations.

8-4 Unallowable Costs

(a) Even if an application is eligible for reimbursement, the following types of costs are not allowable costs:

(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 up grading required.

(3) The 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 these regulations.

(4) Decreased property values.

(5) Bodily injury or property damage except for injuries or damages suffered by third parties.

(6) Fees for legal services.

(7) Any costs associated with preparing, filing and prosecuting an application for reimbursement or assistance under these regulations.

(8) The costs of making improvements to the facility beyond those that are required for corrective action.

(9) Costs, including those associated with contamination assessments performed for any purpose, where no petroleum remediation or corrective action is required by state law or procedures.

(10) Costs of compiling and storing records relating to costs of corrective action.

(11) Costs of corrective action taken in response to the release of a substance which is not eligible as defined in these regulations relating to eligibility.

(12) Costs of system integrity testing.

(13) Any activities, including those required by these regulations, which are not conducted in compliance with applicable state and federal environmental laws, including laws relating to the transport and disposal of waste.

(14) Penalties or payment for damages assessed by the Committee, State Inspector of Oils, the Department of Public Health and Environment, and/or the federal government.

(15) At the Committee's sole discretion, claims for reimbursement relating to a tank owned or operated by a person who has been convicted of a violation of any law or rule that relates to the installation, operation, or management of petroleum storage tanks.

(16) Costs in excess of those considered reasonable by the Committee.

(17) At the Committee's sole discretion, cleanup costs resulting from negligence or misconduct on the part of the owner/operator or applicant.

(18) Subject to Committee policy, costs incurred during the closure of a tank.

(19) Costs for the rental of equipment owned by the applicant if the equipment was purchased by the Fund.

(20) Interest paid on loans.

(21) Costs that are a part of normal business expenses (i.e. insurance charges).

(b) Any attempt by an applicant to claim reimbursement under circumstances when the applicant knew or should have known (this includes knowledge held by the applicant's environmental consultant) that some or all costs would be unallowed authorizes the Committee to reduce otherwise allowable costs submitted by the applicant (whether on the same or a different application). Any reduction imposed under this section shall be equal to the amount of the unallowed costs. This subsection applies only to the unallowed costs in subsections 8-4(a)(7),(8), (9), (12), (14), (18), and (19) above and only to applications received after March 1, 1997.

8-5 Reasonable Costs.

(a) For purposes of these regulations, "Reasonable Cost" means that amount or range which is commensurate with the level of corrective action necessary to assess and remediate a site. "Reasonable Cost" is determined by the Committee based on an evaluation of technical effectiveness and cost effectiveness as well as typical costs expected for the particular corrective action under review, with respect to the necessary or required scope and complexity of the action.

(b) No cost is reasonable unless it is also an allowable cost pursuant to these regulations.

8-6 Determining the Number of Occurrences.

(a) All releases at a facility which are detected before the initial site characterization is complete will be considered part of one release.

(b) Notwithstanding any regulation to the contrary, releases at a facility may be considered by the Committee either as single or separate occurrences when doing either would:

(1) Make the most efficient use of the fund; or

(2) Provide the most effective protection to the environment or best provide for public health and safety.

8-7 Committee Review of Application.

(a) The Committee shall review each eligible claim received and make a determination of reimbursement, inform the applicant of its determination and, as appropriate, reimburse the applicant from the fund.

(b) Prior to approval of reimbursement, the Committee shall affirmatively determine that:

(1) Claimed reimbursement expenses are:

(i) Eligible costs; and

(ii) Actually, necessarily and reasonably incurred for the preparation or implementation of a corrective action plan approved by the State Inspector of Oils or for eligible third party damage.

(2) The applicant is:

(i) Eligible for reimbursement; and

(ii) In substantial compliance with all applicable rules and regulations.

(c) An application which does not contain all the information required may be rejected by the Committee without prejudice. Rejection of the application by the Committee does not prevent the applicant from filing another application for the same occurrence.

(d) The Committee is not required to commence the substantive review of an application until receipt of all information required from the applicant and the State Inspector of Oils determines the claim is properly and fully completed.

(e) If, during the course of the substantive review, additional information of the type required by these regulations is needed to evaluate this application, the applicant may be required to provide such additional information. Further review of the application may be postponed until such information is received.

(f) The Committee's approval of the proposed remediation program(s) shall not be considered a finding or guarantee of safety or effectiveness of the program(s). Nothing in these regulations shall be construed to abrogate or limit the immunity or exemption from civil liability of any agency, entity or person under any statute including the Colorado Governmental Immunity Act, Article 10 of Title 24 or Section 13-21-108.5 C.R.S.

(g) The approval and disbursement of funds by the Fund and/or Committee does not constitute transfer of ownership of any contaminated soils, equipment, or related items relating to a remediation program. Ownership of any and all items relating to remediation programs will remain the property of the applicant.

8-8 Fund Payment Report.

(a) Upon completion of the review of an application, the Committee shall prepare a Fund Payment Report, indicating which of the applicant's claims the Committee believes should be reimbursed and which claims should not be reimbursed. If the Committee finds that any claim should not be paid to the full amount claimed, it shall briefly state the reasons in its report. The Committee shall submit a copy of its report to the applicant.

(b) The applicant shall review the Fund Payment Report and shall, if dissatisfied with any facts therein, file a written protest with the Committee within 60 days of the date of the report. If the applicant does not file a written protest within the 60 days, the applicant will have waived its right to object to anything covered by the report. After the 60 days, everything regarding the application, including the amount of reimbursement and percentage reductions (including any reductions applicable to future applications), will be deemed final.

(c) The protest must be signed by the applicant and contain any information required by the Committee or the State Inspector of Oils, including a clear statement of each item which the applicant disputes on the Committee's Fund Payment Report.

(d) The protest shall be submitted on a form provided by the Committee or the State Inspector of Oils.

8-9 Miscellaneous Regulations.

(a) Nothing in these regulations precludes the Committee or the State Inspector of Oils from issuing orders, assessing administrative penalties, or taking any other action permitted by law against any person for violation of any statute, rule or order.

(b) Nothing in these regulations changes the responsibilities of an owner/operator of a storage tank to respond to a release of regulated substances or to comply with any other requirements, statutes, rules or orders, and state or federal laws.

(c) No person shall knowingly submit false information to the Committee as part of any materials required to be submitted under these regulations.

(d) If an applicant owes money to the Fund or to the State Inspector of Oils, including but not limited to penalties or past registration fees, the amount owed will be deducted from any amount reimbursed to the applicant.