0001| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILLS 446 & 362 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO THE ENVIRONMENT; PROVIDING FOR VOLUNTARY | 0013| REMEDIATION OF CONTAMINATED REAL PROPERTY AND VOLUNTARY | 0014| AGREEMENTS; AUTHORIZING COVENANTS NOT TO SUE; PROVIDING | 0015| AUTHORIZATION FOR A FEE FOR ADMINISTRATION OF AGREEMENTS; | 0016| APPROPRIATING FEES FOR OPERATION OF A VOLUNTARY REMEDIATION | 0017| FUND; DECLARING AN EMERGENCY. | 0018| | 0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0020| Section 1. SHORT TITLE.--This act may be cited as the | 0021| "Voluntary Remediation Act". | 0022| Section 2. PURPOSE.--The purpose of the Voluntary | 0023| Remediation Act is to provide incentives for the voluntary | 0024| assessment and remediation of contaminated property, with state | 0025| oversight, and to remove future liability of lenders and | 0001| landowners. | 0002| Section 3. DEFINITIONS.--As used in the Voluntary | 0003| Remediation Act: | 0004| A. "applicable standards" means federal, state or | 0005| local standards, requirements, criteria or limitations that are | 0006| legally applicable to the facility; | 0007| B. "applicant" means a person that elects to submit | 0008| an application to participate and enter into an agreement under | 0009| the Voluntary Remediation Act; | 0010| C. "contaminant" means the following substances | 0011| within the jurisdiction of the department: | 0012| (1) solid waste; | 0013| (2) hazardous waste as defined in 20 NMAC | 0014| 4.1.200; | 0015| (3) an RCRA hazardous waste constituent listed | 0016| in Appendices VIII and IX in 20 NMAC 4.1.200; | 0017| (4) any substance that could alter, if | 0018| discharged or spilled, the physical, chemical, biological or | 0019| radiological qualities of water; or | 0020| (5) a hazardous substance, as defined by | 0021| Section 101(14) of the federal Comprehensive Environmental | 0022| Response, Compensation and Liability Act and 40 C.F.R. Part | 0023| 302, Table 302.4; | 0024| D. "department" means the department of | 0025| environment; | 0001| E. "enforcement action" means: | 0002| (1) a written notice from the department or | 0003| other state agency that requires abatement of contamination | 0004| under 20 NMAC 6.2; | 0005| (2) a written order from the department or other | 0006| state agency that requires or involves the removal or remediation | 0007| of contaminants; | 0008| (3) a judicial action by the department or other | 0009| state agency seeking the abatement of contamination or the | 0010| remediation of contaminants; or | 0011| (4) a notice, order or judicial action similar | 0012| to those enumerated in Paragraphs (1) through (3) of this | 0013| subsection, but initiated by the federal government; | 0014| F. "fraud" means the knowingly false representation, | 0015| whether by words or conduct, and whether by inaccurate or | 0016| misleading allegations or by concealment of that which should have | 0017| been disclosed, that is intended to deceive or circumvent the | 0018| intent of this statute; | 0019| G. "participant" means an applicant that has been | 0020| approved by the department as eligible for and that signs and | 0021| performs an agreement pursuant to the provisions of the Voluntary | 0022| Remediation Act; | 0023| H. "person" means an individual or any other entity, | 0024| including partnerships, corporations, associations, responsible | 0025| business or association agents or officers, the state or a | 0001| political subdivision of the state, or any agency, department or | 0002| instrumentality of the United States and any of its officers, | 0003| agents or employees; | 0004| I. "release" means any spilling, leaking, pumping, | 0005| pouring, emitting, emptying, discharging, injecting, escaping, | 0006| leaching, dumping or disposing into the environment, including | 0007| abandonment or discarding of any contaminant; | 0008| J. "remediation" means: | 0009| (1) actions necessary to investigate, prevent, | 0010| minimize or mitigate damages to the public health or to the | 0011| environment that may otherwise result from a release or threat of | 0012| release; and | 0013| (2) the cleanup or removal of released | 0014| contaminants to conform with applicable standards; | 0015| K. "site" means a parcel of real property for which an | 0016| application has been submitted pursuant to the provisions of | 0017| Section 5 of the Voluntary Remediation Act; and | 0018| L. "voluntary remediation" means remediation taken | 0019| under and in compliance with the Voluntary Remediation Act. | 0020| Section 4. REGULATIONS.--The department shall adopt and | 0021| promulgate rules and regulations necessary to implement the | 0022| provisions of the Voluntary Remediation Act. The rules and | 0023| regulations shall provide for, among other things, the amount of | 0024| the nonrefundable application fee and a schedule for the cost of | 0025| the department's oversight of the voluntary remediation. | 0001| Section 5. APPLICATION AND FEE.-- | 0002| A. To be eligible for a voluntary remediation | 0003| agreement an applicant must: | 0004| (1) own the site; | 0005| (2) operate a facility located on the site; | 0006| (3) be a prospective owner of the site; or | 0007| (4) be a prospective operator of a facility at | 0008| the site. | 0009| B. An applicant shall pay at the time of submitting | 0010| the application a reasonable, nonrefundable application fee | 0011| determined by the department in advance that will pay for the | 0012| costs to the department of processing the application. | 0013| C. The participant shall pay all costs of the | 0014| department's oversight of the voluntary remediation. | 0015| D. The department shall reject an application for a | 0016| voluntary remediation agreement if the department determines: | 0017| (1) the contaminants at the site constitute, | 0018| with reasonable evidence, an unreasonable threat to human health | 0019| or the environment or Native American cultural or religious sites; | 0020| (2) an administrative state or federal or | 0021| judicial state or federal enforcement action is pending that | 0022| concerns remediation of contamination described in the | 0023| application; | 0024| (3) a federal grant requires an enforcement | 0025| action at the site; | 0001| (4) the application is incomplete or inaccurate | 0002| and the alleged incompleteness or inaccuracy cannot be remedied by | 0003| the applicant within thirty days; | 0004| (5) the site has a state or federal permit that | 0005| addresses a contaminant described in the application, or a permit | 0006| is pending; | 0007| (6) an agreement between the department and the | 0008| environmental protection agency precludes the site from being | 0009| addressed under this statute; or | 0010| (7) the applicant has, within ten years | 0011| immediately preceding the date of submission of the application: | 0012| (a) knowingly misrepresented a material | 0013| fact in an application for a permit or plan submitted pursuant to | 0014| state environmental laws; | 0015| (b) refused or failed to disclose any | 0016| material information required under this act; | 0017| (c) exhibited a history of willful | 0018| disregard for environmental laws of any state or of the United | 0019| States; or | 0020| (d) had an environmental permit revoked or | 0021| permanently suspended for cause pursuant to provisions of any | 0022| environmental laws of any state or of the United States. | 0023| E. The department shall determine, on a first-come, | 0024| first-served basis and within a reasonable period defined by | 0025| regulation, whether the applicant is eligible to participate in a | 0001| voluntary remediation agreement pursuant to provisions of the | 0002| Voluntary Remediation Act. | 0003| F. Before the department approves a proposed voluntary | 0004| remediation agreement, the applicant must: | 0005| (1) make the proposed voluntary remediation | 0006| agreement available for public inspection at a location in | 0007| reasonable proximity to the site; | 0008| (2) notify the following and advise them of the | 0009| proposed voluntary remediation agreement and the opportunity to | 0010| submit comments to the department: | 0011| (a) any local, state, federal, tribal or | 0012| pueblo governmental agency potentially affected by the proposed | 0013| voluntary remediation agreement; | 0014| (b) those parties that have requested | 0015| notification; | 0016| (c) the general public by posting at the | 0017| site on a form provided by the department; and | 0018| (d) the general public by publishing in a | 0019| newspaper of general circulation in the community potentially | 0020| affected by the voluntary remediation agreement; and | 0021| (3) submit to the department a copy of the public | 0022| notice as well as an affidavit affirming that the applicant has | 0023| complied with the provisions of this subsection. | 0024| G. The department shall: | 0025| (1) provide a comment period of at least thirty | 0001| days following publication of the newspaper notice. During the | 0002| comment period, interested persons may submit comments to the | 0003| department concerning the proposed voluntary remediation | 0004| agreement. The department shall consider public comments in | 0005| deciding whether to enter into a voluntary remediation agreement; | 0006| (2) during thirty day comment period, allow any | 0007| interested person to request a public meeting. The request shall | 0008| be in writing and shall set forth the reasons why the meeting | 0009| should be held. A public meeting will be held if the secretary of | 0010| environment determines that there is significant public interest; | 0011| and | 0012| (3) provide for appropriate public participation | 0013| in the voluntary remediation workplan, including a public meeting | 0014| if the secretary of environment determines that there is | 0015| significant public interest. | 0016| H. If an agreement is not reached between an applicant | 0017| and the department on or before the thirtieth day after the | 0018| department determines an applicant to be eligible pursuant to the | 0019| provisions of this section, the applicant or the department may | 0020| withdraw from the negotiations. | 0021| Section 6. AGREEMENT.-- | 0022| A. After the department determines that an applicant | 0023| is eligible, the secretary of environment may enter into a | 0024| voluntary remediation agreement for remediation of the site that | 0025| sets forth the terms and conditions of the department's evaluation | 0001| and implementation of the oversight to be performed. | 0002| B. A voluntary remediation agreement shall include a | 0003| provision for the department's oversight, including access to the | 0004| site, on-site collection of samples and inspection and copying of | 0005| site records. | 0006| C. The department shall not initiate an enforcement | 0007| action, including an administrative or judicial action, against a | 0008| participant for the contamination or release thereof, or for the | 0009| activity that resulted in the contamination or release thereof, if | 0010| the contamination is the subject of an agreement pursuant to the | 0011| provisions of the Voluntary Remediation Act; however, this section | 0012| shall not be a bar to enforcement if the participant does not | 0013| successfully initiate or implement the agreement within a | 0014| reasonable time. | 0015| D. The participant may terminate a voluntary | 0016| remediation agreement on sixty days' written notice. The | 0017| department may terminate a voluntary remediation agreement on a | 0018| finding that the participant is not in compliance with the | 0019| voluntary remediation agreement. The department's costs incurred | 0020| or obligated before the date the notice of termination is received | 0021| are recoverable under the agreement if the agreement is | 0022| terminated; | 0023| E. In the event that any participant is unable to | 0024| resolve a dispute concerning the actions required under a | 0025| voluntary remediation agreement, that participant may submit a | 0001| written request for a final decision to the secretary of | 0002| environment. The secretary of environment shall issue a binding | 0003| final decision, including a written statement of the reason for | 0004| the decision. | 0005| F. Unless the participant demonstrates that a cleanup | 0006| is not required in order to comply with applicable standards, | 0007| after a voluntary remediation agreement becomes effective, the | 0008| participant shall submit a proposed voluntary remediation work | 0009| plan for the site remediation. | 0010| Section 7. CERTIFICATE OF COMPLETION.--If the department | 0011| determines that a participant has successfully complied with the | 0012| voluntary remediation agreement and the site conditions meet | 0013| applicable standards, the department shall issue the participant a | 0014| certificate of completion. | 0015| Section 8. COVENANT NOT TO SUE.-- | 0016| A. After the department issues a certificate of | 0017| completion for a site, the secretary of environment shall provide | 0018| a covenant not to sue to a purchaser of the site that did not | 0019| contribute to the site contamination for any direct liability, | 0020| including future liability for claims based upon the contamination | 0021| covered by the agreement and over which the department has | 0022| authority. Except as may be provided under federal law or as may | 0023| be agreed to by a federal government entity, the covenant not to | 0024| sue shall not release a participant from liability to the federal | 0025| government for claims based on federal law. Except as may be | 0001| agreed to by a third party, the covenant not to sue shall not | 0002| release a person from liability to third parties. | 0003| B. The secretary of environment's covenant not to sue | 0004| under this section shall be transferable with title to the site. | 0005| Section 9. RECISION.--Nothing in this chapter shall | 0006| prohibit the secretary of environment from rescinding a | 0007| certificate of completion or a covenant not to sue if the | 0008| 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 | 0013| in a manner that fails to comply substantially with the terms and | 0014| conditions of the agreement or voluntary remediation work plan; | 0015| C. if the voluntary remediation agreement is a result | 0016| of fraud; or | 0017| D. contamination was present at the site at the time | 0018| the voluntary remediation agreement was signed, but the department | 0019| did not 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 who is not | 0024| in control of or does not have responsibility for daily operation | 0025| of the site shall not be considered an owner or operator of that | 0001| site and shall not be liable under any contaminant control or | 0002| other environmental protection law or regulation administered by | 0003| the department or otherwise responsible to the department for any | 0004| environmental contamination or response action costs associated | 0005| with the site. This section shall apply to all indicia of | 0006| ownership existing on and after the effective date of the | 0007| Voluntary Remediation Act. | 0008| Section 11. VOLUNTARY REMEDIATION FUND.--The "voluntary | 0009| remediation fund" is created in the state treasury. The fund | 0010| shall be administered by the department. All fees and oversight | 0011| payments collected pursuant to the regulations adopted by the | 0012| secretary of environment pursuant to the provisions of the | 0013| Voluntary Remediation Act shall be deposited in the fund. Money | 0014| in the fund is appropriated to the department for the purpose of | 0015| administering the Voluntary Remediation Act. Disbursements from | 0016| the fund shall be made upon warrants drawn by the secretary of | 0017| finance and administration pursuant to vouchers signed by the | 0018| secretary of environment. | 0019| Section 12. SEVERABILITY.--If any part or application of | 0020| the Voluntary Remediation Act is held invalid, the remainder or | 0021| its application to other situations or persons shall not be | 0022| affected. | 0023| Section 13. EMERGENCY.--It is necessary for the public | 0024| peace, health and safety that this act take effect immediately. | 0025|  |