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|
|