A. An owner or operator of a storage tank from which a release has occurred shall be strictly liable for the owner's, operator's and department's cost of taking corrective action at the site.

B. An owner or operator otherwise liable under Subsection A of this section shall not be liable for expenditures from the state corrective action fund associated with corrective action at the site if he has proved to the department that he has complied with the following:

(1) the owner or operator:

(a) is in substantial compliance with all of the requirements and provisions of rules adopted by the board to fulfill the requirements of Paragraphs (1) through (7) of Subsection C of Section 74-4-4 NMSA 1978;

(b) has paid all storage tank fees required by Sections 74-4-4.4 and 74-6B-9 NMSA 1978;

(c) has conducted a minimum site assessment in accordance with rules of the board and, if contamination is found, has taken action to prevent continuing contamination; and

(d) has cooperated in good faith with the department and has granted access to the department for investigation, cleanup and monitoring; and

(2) for sites where storage tanks were removed or properly abandoned prior to March 7, 1990, the owner or the operator:

(a) has paid all storage tank fees required by Section 74-4-4.4 NMSA 1978 and a two hundred dollar ($200) fee per site;

(b) has conducted a minimum site assessment in accordance with rules of the board; and

(c) has cooperated in good faith with the department and has granted access to the department for investigation, cleanup and monitoring.

C. In the event that the department determines that an owner or operator has not complied with the requirements of Subsection B of this section, the department may bring an action in district court against the owner or operator to recover expenditures from the corrective action fund incurred by the department in taking corrective action at the site. In addition, the department may bring an action in district court to recover any expenditures made of federal funds from the leaking underground storage tank trust fund in taking corrective action. These expenditures made from the corrective action fund and from federal funds include but are not limited to costs of investigating a release and undertaking corrective action, administrative costs and reasonable attorney fees. Expenditures recovered under this section, except for any recovered federal funds, shall be deposited into the corrective action fund.

D. The department has a right of subrogation to any insurance policies in existence at the time of the release to the extent of any rights the owner or operator of a site may have had under that policy and has a right of subrogation against any third party who caused or contributed to the release. The right of subrogation shall apply regardless of any defenses available to the owner or operator under Subsection B of this section. The right of subrogation shall apply to sites where corrective action is taken by owners or operators under Section 74-6B-13 NMSA 1978 as well as to sites where corrective action is taken by the state.

History: Laws 1990, ch. 124, § 8; 1991, ch. 47, § 1; 1992, ch. 64, § 6; 2001, ch. 325, § 17.

The 2001 amendment, effective July 1, 2001, deleted "underground" preceding "storage tank" and "storage tanks" throughout the section; inserted "owner's, operator's and" preceding "department's cost" in Subsection A; added the language beginning "The right of subrogation" to the end of Subsection D; and made stylistic changes.

The 1992 amendment, effective March 9, 1992, substituted "department's cost" for "division's costs" in Subsection A; substituted all of the present language of the introductory paragraph of Subsection B beginning with "at the site" for "taken by the division and shall be entitled to the use of the state corrective action fund for corrective action at the site if he has proven to the division that he has complied with the following"; made minor stylistic changes in Subsections B(1)(b), B(1)(c), and B(2)(b); added Subsection B(1)(d); substituted all of the present language of the introductory paragraph of Subsection B(2) following "tanks" for "have been removed or properly abandoned, the owner"; added Subsection B(2)(c); rewrote Subsection C; and substituted "department" for "division" in the first sentence of Subsection D, while adding all of the present language of that sentence following "policy".

The 1991 amendment, effective June 14, 1991, in Subsection A substituted "An owner or operator of an underground storage tank from which a release has occurred" for "All owners and operators of sites contaminated by an underground storage tank"; in Subsection B, rewrote the introductory paragraph and made minor stylistic changes; and, in Subsection C, in the first sentence, inserted "an underground storage tank if the owner or operator of the tank has failed to prove that he has complied".

No claim for payment from corrective action fund. — The owner or operator of an underground storage tank which has experienced a release and who has complied with the requirements of Subsections (B)(1)(a) through (c) of this section has no claim for payment from the corrective action fund for costs expended by him for corrective action, nor does he have a claim for such amounts to be expended by him in the future. 1991 Op. Att'y Gen. No. 91-08.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Tort liability for pollution from underground storage tank, 5 A.L.R.5th 1.