Do this and not that: Appealing denied costs for underground storage tank cleanup in California
Picture this, you have had a leaking underground storage tank (UST) cleanup project and have had to go through all the obstacles to ensure that all rules and regulations are met to earn a no-further action (NFA) letter. Through each step of the process, bills from cleanup have added an extra burden to your operations. Thus, you find yourself relying on reimbursement from your state’s UST cleanup fund to continue business as normal. However, when the reimbursement comes in, it falls short of your expectations and leaves you questioning why all costs were not covered.
This is a common scenario for UST owners and operators in states that have leaking UST cleanup funds available. Since its inception, the California Underground Storage Tank Cleanup Fund has reimbursed eligible corrective action costs paid or incurred for cleanup work performed, which was the result of an unauthorized release of petroleum from a UST that caused contamination of soil and/or groundwater. Corrective action costs include preliminary site assessment, soil and water investigations, corrective action implementation, and verification monitoring after the cleanup is completed. The Fund does not cover the removal, repair, retrofit, or installation of USTs, and funds are disbursed only after costs are incurred.
When costs related to cleanup are found to be ineligible on the Reimbursement Request, there may still be an opportunity to regain funding by filing an appeal. The Fund’s formal process to appeal denied costs (a Fund Manager Decision or a Revised Staff Decision), can be a challenge to navigate, especially if you do not have longstanding experience with the California Fund. Thus, Pinnacle’s experts have provided a checklist of “do’s and don’ts” for appealing denied costs:
Do: Review resources and search for additional information
An appeal is the opportunity to provide more detail or justification for why the costs should be found eligible. New information, supplementary documents, regulatory directives, technical reports/supporting scope of work details or additional backup could make a difference in maximizing your reimbursement!
Don’t: Appeal costs that are truly ineligible
Make sure to review Payment Summaries from the Fund thoroughly as some denied costs can be appealed while others will remain ineligible (tank removal, costs that exceed the cap, excessive rates, etc.). Though this step may seem obvious, there are sometimes even different line items on the same invoice where costs were found both eligible and ineligible.
Do: Review the Fund’s designation of reasonable and necessary reimbursable costs letter
For additional guidance on costs that are eligible and ineligible with the Fund, take a look at the Fund’s recent letter from October 2021. It’s important to note, that the updated information in the letter regarding reasonable and necessary costs does not apply retroactively to anything submitted before the date of the letter including appeals for costs the Fund has already made determinations on.
Don’t: Request to be reimbursed for appeal preparation time
Unlike Reimbursement Requests, Regulatory/Electronic Technical Assistance Costs (RTAC/ETAC) for the costs to prepare an appeal are not eligible for reimbursement.
Do: Separate costs being submitted for appeal
In one of its most recent stakeholder’s calls, the Fund provided new guidance to split up denied costs and submit separate appeals for smaller value or more administrative denials (those just requiring missing documentation or additional backup) versus large denials or those that are more technical. Knowing how to maximize this process can go a long way to one’s reimbursement.
Don’t: Forget to check that all current forms are on file with the Fund
Although there are specific appeal forms to complete, ensure supplementary forms such as the Conditions of Payment or the Non-Recovery form are also up to date to avoid any delays in reviewing the appeal and or processing payment.
Do: Get assistance from an expert
Save yourself the time and headache of figuring out the above on your own. Pinnacle is ready to leverage our expertise to help you resolve these problems quickly and recover every eligible dollar. Give us a call for an appeal consultation.
Pinnacle Environmental Management Support, founded in 1995, is an independent environmental claims management firm headquartered in Pompano Beach, Fla., and serves underground storage tank (UST) owners, operators, environmental consultants and others with accessing insurance mechanisms to assist with UST cleanup. Pinnacle has three separate office locations in Florida, Massachusetts and North Carolina. The company employs over 60 team members and works with Fortune 100 companies across the United States.