0001| AN ACT | 0002| RELATING TO THE ENVIRONMENT; PROVIDING FOR VOLUNTARY REMEDIATION OF | 0003| CONTAMINATED REAL PROPERTY AND VOLUNTARY AGREEMENTS; AUTHORIZING | 0004| COVENANTS NOT TO SUE; PROVIDING AUTHORIZATION FOR A FEE FOR | 0005| ADMINISTRATION OF AGREEMENTS; APPROPRIATING FEES FOR OPERATION OF A | 0006| VOLUNTARY REMEDIATION FUND; DECLARING AN EMERGENCY. | 0007| | 0008| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0009| Section 1. SHORT TITLE.--This act may be cited as the "Voluntary | 0010| Remediation Act". | 0011| Section 2. PURPOSE.--The purpose of the Voluntary Remediation | 0012| Act is to provide incentives for the voluntary assessment and | 0013| remediation of contaminated property, with state oversight, and to | 0014| remove future liability of lenders and landowners. | 0015| Section 3. DEFINITIONS.--As used in the Voluntary Remediation | 0016| Act: | 0017| A. "applicable standards" means federal, state or local | 0018| standards, requirements, criteria or limitations that are legally | 0019| applicable to the facility; | 0020| B. "applicant" means a person that elects to submit an | 0021| application to participate and enter into an agreement under the | 0022| Voluntary Remediation Act; | 0023| C. "contaminant" means the following substances within the | 0024| jurisdiction of the department: | 0025| (1) solid waste; | 0001| (2) hazardous waste as defined in 20 NMAC 4.1.200; | 0002| (3) an RCRA hazardous waste constituent listed in | 0003| Appendices VIII and IX in 20 NMAC 4.1.200; | 0004| (4) any substance that could alter, if discharged or | 0005| spilled, the physical, chemical, biological or radiological qualities | 0006| of water; or | 0007| (5) a hazardous substance, as defined by Section | 0008| 101(14) of the federal Comprehensive Environmental Response, | 0009| Compensation and Liability Act and 40 C.F.R. Part 302, Table 302.4; | 0010| D. "department" means the department of environment; | 0011| E. "enforcement action" means: | 0012| (1) a written notice from the department or other | 0013| state agency that requires abatement of contamination under 20 NMAC | 0014| 6.2; | 0015| (2) a written order from the department or other | 0016| state agency that requires or involves the removal or remediation of | 0017| contaminants; | 0018| (3) a judicial action by the department or other | 0019| state agency seeking the abatement of contamination or the remediation | 0020| of contaminants; or | 0021| (4) a notice, order or judicial action similar to | 0022| those enumerated in Paragraphs (1) through (3) of this subsection, but | 0023| initiated by the federal government; | 0024| F. "fraud" means the knowingly false representation, | 0025| whether by words or conduct, and whether by inaccurate or misleading | 0001| allegations or by concealment of that which should have been | 0002| disclosed, that is intended to deceive or circumvent the intent of | 0003| this statute; | 0004| G. "participant" means an applicant that has been approved | 0005| by the department as eligible for and that signs and performs an | 0006| agreement pursuant to the provisions of the Voluntary Remediation Act; | 0007| H. "person" means an individual or any other entity, | 0008| including partnerships, corporations, associations, responsible | 0009| business or association agents or officers, the state or a political | 0010| subdivision of the state, or any agency, department or instrumentality | 0011| of the United States and any of its officers, agents or employees; | 0012| I. "release" means any spilling, leaking, pumping, pouring, | 0013| emitting, emptying, discharging, injecting, escaping, leaching, | 0014| dumping or disposing into the environment, including abandonment or | 0015| discarding of any contaminant; | 0016| J. "remediation" means: | 0017| (1) actions necessary to investigate, prevent, | 0018| minimize or mitigate damages to the public health or to the | 0019| environment that may otherwise result from a release or threat of | 0020| release; and | 0021| (2) the cleanup or removal of released contaminants | 0022| to conform with applicable standards; | 0023| K. "site" means a parcel of real property for which an | 0024| application has been submitted pursuant to the provisions of Section 5 | 0025| of the Voluntary Remediation Act; and L. "voluntary | 0001| remediation" means remediation taken under and in compliance with the | 0002| Voluntary Remediation Act. | 0003| Section 4. REGULATIONS.--The department shall adopt and | 0004| promulgate rules and regulations necessary to implement the provisions | 0005| of the Voluntary Remediation Act. The rules and regulations shall | 0006| provide for, among other things, the amount of the nonrefundable | 0007| application fee and a schedule for the cost of the department's | 0008| oversight of the voluntary remediation. | 0009| Section 5. APPLICATION AND FEE.-- | 0010| A. To be eligible for a voluntary remediation agreement an | 0011| applicant must: | 0012| (1) own the site; | 0013| (2) operate a facility located on the site; | 0014| (3) be a prospective owner of the site; or | 0015| (4) be a prospective operator of a facility at the | 0016| site. | 0017| B. An applicant shall pay at the time of submitting the | 0018| application a reasonable, nonrefundable application fee determined by | 0019| the department in advance that will pay for the costs to the | 0020| department of processing the application. | 0021| C. The participant shall pay all costs of the department's | 0022| oversight of the voluntary remediation. | 0023| D. The department shall reject an application for a | 0024| voluntary remediation agreement if the department determines: | 0025| (1) the contaminants at the site constitute, with | 0001| reasonable evidence, an unreasonable threat to human health or the | 0002| environment or Native American cultural or religious sites; | 0003| (2) an administrative state or federal or judicial | 0004| state or federal enforcement action is pending that concerns | 0005| remediation of contamination described in the application; | 0006| (3) a federal grant requires an enforcement action at | 0007| the site; | 0008| (4) the application is incomplete or inaccurate and | 0009| the alleged incompleteness or inaccuracy cannot be remedied by the | 0010| applicant within thirty days; | 0011| (5) the site has a state or federal permit that | 0012| addresses a contaminant described in the application, or a permit is | 0013| pending; | 0014| (6) an agreement between the department and the | 0015| environmental protection agency precludes the site from being | 0016| addressed under this statute; or | 0017| (7) the applicant has, within ten years immediately | 0018| preceding the date of submission of the application: | 0019| (a) knowingly misrepresented a material fact in | 0020| an application for a permit or plan submitted pursuant to state | 0021| environmental laws; | 0022| (b) refused or failed to disclose any material | 0023| information required under this act; | 0024| (c) exhibited a history of willful disregard for | 0025| environmental laws of any state or of the United States; or | 0001| (d) had an environmental permit revoked or | 0002| permanently suspended for cause pursuant to provisions of any | 0003| environmental laws of any state or of the United States. | 0004| E. The department shall determine, on a first-come, first- | 0005| served basis and within a reasonable period defined by regulation, | 0006| whether the applicant is eligible to participate in a voluntary | 0007| remediation agreement pursuant to provisions of the Voluntary | 0008| Remediation Act. | 0009| F. Before the department approves a proposed voluntary | 0010| remediation agreement, the applicant must: | 0011| (1) make the proposed voluntary remediation agreement | 0012| available for public inspection at a location in reasonable proximity | 0013| to the site; | 0014| (2) notify the following and advise them of the | 0015| proposed voluntary remediation agreement and the opportunity to submit | 0016| comments to the department: | 0017| (a) any local, state, federal, tribal or pueblo | 0018| governmental agency potentially affected by the proposed voluntary | 0019| remediation agreement; | 0020| (b) those parties that have requested | 0021| notification; | 0022| (c) the general public by posting at the site on | 0023| a form provided by the department; and | 0024| (d) the general public by publishing in a | 0025| newspaper of general circulation in the community potentially affected | 0001| by the voluntary remediation agreement; and | 0002| (3) submit to the department a copy of the public | 0003| notice as well as an affidavit affirming that the applicant has | 0004| complied with the provisions of this subsection. | 0005| G. The department shall: | 0006| (1) provide a comment period of at least thirty days | 0007| following publication of the newspaper notice. During the comment | 0008| period, interested persons may submit comments to the department | 0009| concerning the proposed voluntary remediation agreement. The | 0010| department shall consider public comments in deciding whether to enter | 0011| into a voluntary remediation agreement; | 0012| (2) during the thirty day comment period, allow any | 0013| interested person to request a public meeting. The request shall be | 0014| in writing and shall set forth the reasons why the meeting should be | 0015| held. A public meeting will be held if the secretary of environment | 0016| determines that there is significant public interest; and | 0017| (3) provide for appropriate public participation in | 0018| the voluntary remediation work plan, including a public meeting if the | 0019| secretary of environment determines that there is significant public | 0020| interest. | 0021| H. If an agreement is not reached between an applicant and | 0022| the department on or before the thirtieth day after the department | 0023| determines an applicant to be eligible pursuant to the provisions of | 0024| this section, the applicant or the department may withdraw from the | 0025| negotiations. | 0001| Section 6. AGREEMENT.-- | 0002| A. After the department determines that an applicant is | 0003| eligible, the secretary of environment may enter into a voluntary | 0004| remediation agreement for remediation of the site that sets forth the | 0005| terms and conditions of the department's evaluation and implementation | 0006| of the oversight to be performed. | 0007| B. A voluntary remediation agreement shall include a | 0008| provision for the department's oversight, including access to the | 0009| site, on-site collection of samples and inspection and copying of site | 0010| records. | 0011| C. The department shall not initiate an enforcement action, | 0012| including an administrative or judicial action, against a participant | 0013| for the contamination or release thereof, or for the activity that | 0014| resulted in the contamination or release thereof, if the contamination | 0015| is the subject of an agreement pursuant to the provisions of the | 0016| Voluntary Remediation Act; however, this section shall not be a bar to | 0017| enforcement if the participant does not successfully initiate or | 0018| implement the agreement within a reasonable time. | 0019| D. The participant may terminate a voluntary remediation | 0020| agreement on sixty days' written notice. The department may terminate | 0021| a voluntary remediation agreement on a finding that the participant is | 0022| not in compliance with the voluntary remediation agreement. The | 0023| department's costs incurred or obligated before the date the notice of | 0024| termination is received are recoverable under the agreement if the | 0025| agreement is terminated. | 0001| E. In the event that any participant is unable to resolve a | 0002| dispute concerning the actions required under a voluntary remediation | 0003| agreement, that participant may submit a written request for a final | 0004| decision to the secretary of environment. The secretary of | 0005| environment shall issue a binding final decision, including a written | 0006| statement of the reason for the decision. | 0007| F. Unless the participant demonstrates that a cleanup is | 0008| not required in order to comply with applicable standards, after a | 0009| voluntary remediation agreement becomes effective, the participant | 0010| shall submit a proposed voluntary remediation work plan for the site | 0011| remediation. | 0012| Section 7. CERTIFICATE OF COMPLETION.--If the department | 0013| determines that a participant has successfully complied with the | 0014| voluntary remediation agreement and the site conditions meet | 0015| applicable standards, the department shall issue the participant a | 0016| certificate of completion. | 0017| Section 8. COVENANT NOT TO SUE.-- | 0018| A. After the department issues a certificate of completion | 0019| for a site, the secretary of environment shall provide a covenant not | 0020| to sue to a purchaser of the site that did not contribute to the site | 0021| contamination for any direct liability, including future liability for | 0022| claims based upon the contamination covered by the agreement and over | 0023| which the department has authority. Except as may be provided under | 0024| federal law or as may be agreed to by a federal government entity, the | 0025| covenant not to sue shall not release a participant from liability to | 0001| the federal government for claims based on federal law. Except as may | 0002| be agreed to by a third party, the covenant not to sue shall not | 0003| release a person from liability to third parties. | 0004| B. The secretary of environment's covenant not to sue under | 0005| this section shall be transferable with title to the site. | 0006| Section 9. RECISION.--Nothing in this chapter shall prohibit the | 0007| secretary of environment from rescinding a certificate of completion | 0008| or a covenant not to sue if the department determines that: | 0009| A. contamination addressed in the agreement is, with | 0010| reasonable evidence, an unreasonable threat to human health or the | 0011| environment; | 0012| B. the voluntary remediation agreement was performed in a | 0013| manner that fails to comply substantially with the terms and | 0014| conditions of the agreement or voluntary remediation work plan; | 0015| C. the voluntary remediation agreement is a result of | 0016| fraud; or | 0017| D. contamination was present at the site at the time the | 0018| voluntary remediation agreement was signed but the department did not | 0019| know of the type, extent or magnitude of the contaminants. | 0020| Section 10. LENDER LIABILITY.--An applicant who maintains | 0021| indicia of ownership primarily to protect a security interest in a | 0022| site that is the subject of a voluntary remediation agreement, who | 0023| does not participate in the management of the site, and is not in | 0024| control of or does not have responsibility for daily operation of the | 0025| site shall not be considered an owner or operator of that site and | 0001| shall not be liable under any contaminant control or other | 0002| environmental protection law or regulation administered by the | 0003| department or otherwise responsible to the department for any | 0004| environmental contamination or response action costs associated with | 0005| the site. This section shall apply to all indicia of ownership | 0006| existing on and after the effective date of the Voluntary Remediation | 0007| Act. | 0008| Section 11. VOLUNTARY REMEDIATION FUND.--The "voluntary | 0009| remediation fund" is created in the state treasury. The fund shall be | 0010| administered by the department. All fees and oversight payments | 0011| collected pursuant to the regulations adopted by the secretary of | 0012| environment pursuant to the provisions of the Voluntary Remediation | 0013| Act shall be deposited in the fund. The money in the fund shall be | 0014| appropriated by law to the department for the purpose of administering | 0015| the Voluntary Remediation Act. Disbursements from the fund shall be | 0016| made upon warrants drawn by the secretary of finance and | 0017| administration pursuant to vouchers signed by the secretary of | 0018| environment. | 0019| Section 12. SEVERABILITY.--If any part or application of the | 0020| Voluntary Remediation Act is held invalid, the remainder or its | 0021| application to other situations or persons shall not be affected. | 0022| Section 13. EMERGENCY.--It is necessary for the public | 0023| peace, health and safety that this act take effect immediately. | 0024| |