8 CAR § 80-312. Allowable costs

(a) Only those costs that are allowable costs under this subpart shall be reimbursable. (b)(1)(A) Allowable costs are those costs that are approved by the Division of Environmental Quality and arise directly from the performance of corrective action in accordance with the requirements of this part. (B) For purposes of appeal only, a cost that has been submitted to, reviewed, and disallowed by the division is deemed approved by the division under subdivision (b)(1)(A) of this section. (C) Approval of costs by the division shall not be construed to be a contract with the state to pay the costs. (2) The cost of repairing damages caused by the performance of the corrective action shall be allowable unless otherwise prohibited by this part or by other law provided, however, that the cost of repairing damages resulting from contractor negligence, error, or other wrongful action shall not be allowable. (c) A reimbursement shall not be made under this subpart for any costs incurred prior to the discovery of a release. (d) If the division is not given timely notice of a release as required by 8 CAR § 80-305, no reimbursement shall be made under this subpart for the costs of corrective action incurred in response to the release. (e) Reimbursement shall be made under this subpart only for costs incurred for corrective action that are approved by the division. (f)(1) The determination as to what costs are allowable will be made on a case-by-case basis. (2) However, costs for the following types of activities or items will generally be considered reimbursable: (A) Site investigation, testing, and monitoring necessary for the preparation of an approved corrective action plan; (B) Preparation of an approved corrective action plan; (C) Recovery and disposal of contaminated soils; (D) Cleanup and disposal of contaminated soils; (E) Installation and operation of monitoring wells; (F) Analysis of soils and water; (G) Removal of leaking storage tanks if required by the division as necessary to the corrective action; (H) Provision of an alternate water supply; (I) Treatment and disposal of contaminated groundwater; (J) Equipment such as bailers and sample containers that can be charged to a specific site; (K) Travel costs that are necessary for corrective action and present the least-cost alternative for the required corrective action; and (L)(i) Repair, reassembly, or reinstallation of fixtures, equipment, or appurtenances that are disassembled, moved, or otherwise taken apart as a necessary requirement of the investigation or remediation of a petroleum storage tank release and that are, or would be, damaged by the investigation or remediation. (ii) Subdivision (f)(2)(L)(i) of this section shall not apply to structures, landscaping, or petroleum storage tank systems, except for the costs of repairing boring or sampling holes inside structures. (g) The following types of costs are those that will not be considered allowable costs of corrective action: (1) Retrofitting, repairing, or replacing petroleum storage tank systems or piping; (2) Loss of revenue; (3) Profit for the responsible party or for any entity in which the responsible party has an ownership interest of five percent (5%) or more unless payment of the profit is the least-cost alternative for the required corrective action, as determined by the division’s review of reasonable costs; (4) Rental of temporary petroleum storage tanks not necessary for corrective action; (5)(A) Rental of real estate or buildings owned in part or in total by the responsible party or by any entity in which the responsible party has an ownership interest of five percent (5%) or more unless the rental is the least-cost alternative for the required corrective action, as determined by the division. (B) Rental of real estate or buildings in which the responsible party, or any entity in which the responsible party has an ownership interest of five percent (5%) or more, has a leasehold interest for any reason other than to facilitate the corrective action; (6) The value of lost trees, shrubs, grass, or signs on the owner’s or operator’s property, or other fixtures, appurtenances, or personal property except as allowed in subdivision (f)(2)(L) of this section; (7) The value of lost petroleum or petroleum products; (8) The cost of sample analysis performed by a laboratory that is not certified by the division; (9) Duplicative charges for travel time and mileage for any trip to multiple job sites where the costs are billed in total to multiple corrective action projects rather than allocated between the separate projects (i.e., only charges based on actual miles traveled for all corrective action projects charged to the Petroleum Storage Tank Trust Fund shall be eligible for reimbursement); (10) Excess charges for travel time and mileage if visits to multiple sites are not scheduled economically so that the costs can be allocated between the projects, if possible; (11) Corrective action taken in violation of state or federal laws or regulations; and (12)(A) The costs of equipment purchases provided, however, that costs of routinely required supplies that are expended at a given site, or equipment that must be installed at a site to implement a corrective action plan, are allowable. (B) Equipment that cannot be charged to a specific site includes without limitation the following: (i) Drilling rigs; (ii) Earth-moving equipment; (iii) Tools of the trade, such as hand tools, safety or traffic control equipment, personal protective equipment, surveying equipment, etc.; and (iv) Field analytical and measuring devices, such as groundwater sampling pumps, photoionization detectors, organic vapor meters, infrared analyzers, portable gas chromatographs, dataloggers, soil gas probes, etc. (h)(1) A reimbursement shall not be made under this subpart for any item for which payment is made under a third-party claim for the same occurrence under Subpart 4 of this part. (2) A third-party claim reimbursement shall not be made under Subpart 4 of this part for any item that is included in an approved corrective action plan and is reimbursable under this subpart.