49-1051. Preapproval process; requirements; corrective action priority

A. An owner, an operator or the designated representative of the owner or operator must follow the preapproval process pursuant to this section to be eligible for reimbursement from the underground storage tank revolving fund for corrective actions taken pursuant to section 49-1053, subsection A. Preapproval applications must include a detailed scope of work that conforms to the requirements of sections 49-1005 and 49-1053, a schedule for conducting corrective actions and a cost sheet. Beginning January 1, 2016 and except as prescribed in subsection J of this section, corrective actions and costs for activities that were completed before departmental approval of the scope of work are not eligible for reimbursement under section 49-1054. If the preapproved scope of work cannot be implemented as approved, the person seeking reimbursement shall submit a change notice to the department. To be eligible for reimbursement, a change notice must be approved by the department before implementation of the change notice.

B. This section does not relieve an owner, an operator or the designated representative of the owner or operator from any of the requirements of this chapter.

C. While the application for preapproval is pending, the department may not take enforcement action or impose penalties against the owner, operator or designated representative who submitted the application for preapproval. The department may not consider the passage of time while the preapproval application is pending to be a basis for taking an enforcement action. For any corrective action submitted for preapproval pursuant to rule, the period of time for compliance with corrective actions associated with that preapproval begins to run after the date of preapproval of the corrective action.

D. On determination by the department or its designated contractor that the application for preapproval is complete, the department or its designated contractor shall determine whether the owner or operator was a small owner at the time of the application. For the purposes of this subsection, "small owner" means an owner that owns fewer than twenty underground storage tank facilities in this state.

E. In processing the application for preapproval, the department shall determine the corrective action priority of the release within ninety days after the receipt of the materials required by this section.  The corrective action priority shall be based on all of the following:

1. The need for financial assistance, including the availability of coverage under insurance or other financial assurance mechanisms.

2. The extent to which a delay in reimbursement will affect the ability to conduct corrective actions.

3. The risk to human health and the environment.

4. The presence of preexisting contamination of groundwater by a hazardous substance as defined in section 49-281.

F. An owner or operator may request reimbursement under section 49-1053.  Subject to the availability of monies allocated and the assigned priority of the site pursuant to subsection E of this section, the department may make reimbursements from the underground storage tank revolving fund.

G. An application for preapproval and reimbursement pursuant to this section shall be on a form provided by the department and shall contain sufficient information to allow the director to make a determination of priority for that request.

H. Any determination made by the department pursuant to this section constitutes a written interim determination relating to preapproval pursuant to section 49-1091.

I. The department may alter the corrective action priority of the release at any time based on the results of sampling and monitoring conducted pursuant to this section or any other information obtained by the department.

J. Corrective actions and costs for activities that were completed before the department's approval of the scope of work are eligible for reimbursement under section 49-1054 if the applicant otherwise complies with subsection A of this section and any of the following applies:

1. For corrective actions and costs for activities that are completed from and after December 31, 2015 through December 31, 2019 and that are not the subject of a preapproval or reimbursement under time-barred claims provisions because the applicant's financial responsibility mechanism was defective at the time of the release or the release occurred before financial responsibility was in place, the applicant is eligible for reimbursement for those corrective actions and costs for activities that are incurred from and after the date the applicant demonstrates to the department that the applicant is in compliance with financial responsibility requirements and the financial responsibility is demonstrated to the department before January 1, 2019.  From and after December 31, 2018, the applicant is only eligible for reimbursement for corrective actions and costs incurred in response to releases confirmed after the date the applicant has demonstrated compliance with financial responsibility requirements. 

2. For corrective actions and costs for activities completed from and after December 31, 2015 through December 31, 2019, and for which the applicant's compliance with the preapproval process was impracticable due to:

(a) The urgency of the corrective action to address newly discovered contamination.

(b) The need for corrective action to avoid risk to public health and the environment.

3. For corrective actions and costs for activities completed from and after December 31, 2015 through December 31, 2019, the corrective actions and costs are not the subject of a time-barred claim or were not otherwise reimbursed by the department.

4. Only for corrective actions and costs of activities completed before January 1, 2020, the claim for reimbursement is received by the department before January 1, 2021 and paragraph 1, 2 or 3 of this subsection applies.

K. The department shall develop an expedited preapproval process not later than December 31, 2019 to address those corrective action costs incurred for newly discovered contamination and to address those corrective action costs necessary to avoid risk to public health and the environment.

L. Direct costs incurred by the department in conducting corrective action pursuant to section 49-1017 that are in excess of the coverage limits applicable to time-barred claims as otherwise provided by law shall reduce the amount otherwise payable to an owner or operator pursuant to section 49-1054 but any amount remaining under section 49-1054 shall be available to the owner or operator for additional corrective action costs.

M. For direct costs incurred by the department in conducting corrective action pursuant to section 49-1017 after December 31, 2016, the owner or operator is liable to the department for any amount incurred except for the amount that is eligible and within the amount allowable under section 49-1054.