0001| SENATE BILL 362
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| ROMAN M. MAES III
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO THE ENVIRONMENT; PROVIDING FOR VOLUNTARY
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0012| REMEDIATION OF CONTAMINATED REAL PROPERTY AND VOLUNTARY
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0013| AGREEMENTS; AUTHORIZING COVENANTS NOT TO SUE; PROVIDING
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0014| AUTHORIZATION FOR A FEE FOR ADMINISTRATION OF AGREEMENTS;
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0015| APPROPRIATING FEES FOR OPERATION OF A VOLUNTARY REMEDIATION
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0016| PROGRAM; DECLARING AN EMERGENCY.
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0017|
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0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0019| Section 1. SHORT TITLE.--This act may be cited as the
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0020| "Voluntary Remediation Act".
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0021| Section 2. PURPOSE.--The purpose of the Voluntary
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0022| Remediation Act is to provide incentives for the voluntary
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0023| assessment and remediation of contaminated property, with state
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0024| oversight, and to remove future liability of lenders and
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0025| landowners.
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0001| Section 3. DEFINITIONS.--As used in the Voluntary
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0002| Remediation Act:
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0003| A. "applicable standards" means federal or state
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0004| standards, requirements, criteria or limitations that are
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0005| legally applicable to the facility;
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0006| B. "applicant" means a person that elects to submit
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0007| an application to participate and enter into an agreement under
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0008| the Voluntary Remediation Act;
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0009| C. "contaminant" means:
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0010| (1) solid waste;
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0011| (2) hazardous waste as defined by Section 1004
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0012| (5) of the federal Solid Waste Disposal Act and 40 C.F.R. Part
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0013| 261.3;
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0014| (3) an RCRA hazardous waste constituent listed
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0015| in 40 C.F.R. Part 261, Appendix VIII;
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0016| (4) any substance that could alter, if
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0017| discharged or spilled, the physical, chemical, biological or
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0018| radiological qualities of water;
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0019| (5) a hazardous substance, as defined by
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0020| Section 101(14) of the federal Comprehensive Environmental
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0021| Response, Compensation and Liability Act and 40 C.F.R. Part
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0022| 302, Table 302.4; or
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0023| (6) petroleum substances within the
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0024| jurisdiction of the department;
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0025| D. "department" means the department of
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0001| environment;
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0002| E. "enforcement action" means:
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0003| (1) a written notice from the department or
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0004| other state agency which requires abatement of contamination
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0005| under 20 NMAC 6.2;
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0006| (2) a written order from the department or
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0007| other state agency that requires or involves the removal or
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0008| remediation of contaminants; or
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0009| (3) a judicial action by the department or
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0010| other state agency seeking the abatement of contamination or
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0011| the remediation of contaminants; or
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0012| (4) a notice, order or judicial action similar
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0013| to those enumerated in Paragraphs (1) through (3) of this
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0014| subsection, but initiated by the federal government;
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0015| F. "fraud" means the knowingly false
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0016| representation, whether by words or conduct, and whether by
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0017| inaccurate or misleading allegations, or by concealment of that
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0018| which should have been disclosed, that is intended to deceive
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0019| or circumvent the intent of this statute;
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0020| G. "participant" means an applicant that has been
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0021| approved by the department as eligible for and who signs and
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0022| performs an agreement pursuant to the provisions of the
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0023| Voluntary Remediation Act;
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0024| H. "person" means a legal entity;
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0025| I. "release" means any spilling, leaking, pumping,
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0001| pouring, emitting, emptying, discharging, injecting, escaping,
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0002| leaching, dumping or disposing into the environment, including
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0003| abandonment or discarding, of any contaminant;
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0004| J. "remediation" means:
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0005| (1) actions necessary to investigate, prevent,
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0006| minimize or mitigate damages to the public health or to the
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0007| environment, which may otherwise result from a release or
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0008| threat of release; and
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0009| (2) the cleanup or removal of released
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0010| contaminants to applicable standards;
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0011| K. "site" means a parcel of real property for which
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0012| an application has been submitted under Section 5 of the
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0013| Voluntary Remediation Act; and
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0014| L. "voluntary remediation" means a response action
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0015| taken under and in compliance with the Voluntary Remediation
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0016| Act.
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0017| Section 4. REGULATIONS.--The department shall adopt and
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0018| promulgate rules and regulations necessary to implement the
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0019| provisions of the Voluntary Remediation Act. The rules and
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0020| regulations shall provide for, among other things, the amount
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0021| of the nonrefundable application fee and a schedule for the
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0022| cost of the department's oversight of the voluntary
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0023| remediation.
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0024| Section 5. APPLICATION AND FEE.--
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0025| A. To be eligible for a voluntary remediation
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0001| agreement an applicant must:
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0002| (1) own the site;
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0003| (2) operate a facility located on the site;
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0004| (3) be a prospective owner of the site; or
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0005| (4) be a prospective operator of a facility at
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0006| the site.
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0007| B. An applicant shall pay at the time of submitting
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0008| the application a reasonable, nonrefundable application fee
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0009| determined by the department in advance, which will pay for the
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0010| costs to the department of processing the application.
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0011| C. The participant shall pay all costs of the
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0012| department's oversight of the voluntary remediation.
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0013| D. The department shall reject an application for a
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0014| voluntary remediation agreement if the department determines:
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0015| (1) the contaminants at the site constitute an
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0016| unreasonable threat to human health or the environment;
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0017| (2) an administrative or judicial state or
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0018| federal enforcement action is pending that concerns the
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0019| remediation of a contaminant described in the application;
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0020| (3) a federal grant requires an enforcement
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0021| action at the site;
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0022| (4) the application is incomplete or
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0023| inaccurate; or
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0024| (5) the facility is operating under a state or
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0025| federal permit which addresses a contaminant described in the
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0001| application, or a permit is pending; or
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0002| (6) the applicant has, within ten years
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0003| immediately preceding the date of submission of the permit
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0004| application:
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0005| (a) knowingly misrepresented a material
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0006| fact in an application for a permit;
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0007| (b) refused or failed to disclose any
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0008| information required under this act;
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0009| (c) been convicted of a felony or crime
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0010| involving moral turpitude;
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0011| (d) been convicted of a felony in any
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0012| court for any crime defined by state or federal law as being a
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0013| restraint of trade, price-fixing, bribery or fraud;
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0014| (e) exhibited a history of willful
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0015| disregard for environmental laws of any state of the United
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0016| States; or
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0017| (f) had an environmental permit revoked
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0018| or permanently suspended for cause under any environmental laws
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0019| of any state of the United States.
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0020| E. The department shall determine, on a first come
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0021| first served basis and within a reasonable period defined by
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0022| regulation, if the applicant is eligible to participate in a
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0023| voluntary remediation agreement under the Voluntary Remediation
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0024| Act.
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0025| F. If an agreement is not reached between an
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0001| applicant and the department on or before the thirtieth day
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0002| after the department determines an applicant to be eligible
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0003| pursuant to Section 5 of the Voluntary Remediation Act, the
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0004| applicant or the department may withdraw from the negotiations.
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0005| Section 6. AGREEMENT.--
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0006| A. After the department determines that an
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0007| applicant is eligible, the secretary of environment may enter
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0008| into a voluntary remediation agreement that sets forth the
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0009| terms and conditions of the department's evaluation and
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0010| implementation of the oversight to be performed.
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0011| B. The department shall not initiate an enforcement
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0012| action, including an administrative or judicial action, against
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0013| a participant for the contamination or release thereof, or for
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0014| the activity that resulted in the contamination or release
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0015| thereof, if the contamination is the subject of an agreement
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0016| pursuant to the provisions of the Voluntary Remediation Act,
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0017| but this section shall not be a bar to enforcement if the
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0018| participant does not successfully implement this agreement.
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0019| C. The department or the participant, in the sole
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0020| discretion of either, may terminate a voluntary remediation
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0021| agreement on sixty days' written notice. The department's
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0022| costs incurred or obligated before the date the notice of
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0023| termination is received are recoverable under the agreement if
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0024| the agreement is terminated.
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0025| D. In the event that the participant is unable to
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0001| resolve a dispute concerning the actions required under a
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0002| voluntary remediation agreement, the participant may submit a
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0003| written request for a final decision to the secretary of
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0004| environment. The secretary shall issue a binding final
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0005| decision, including a written statement of the reason for the
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0006| decision.
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0007| E. After a voluntary remediation agreement becomes
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0008| effective, the participant may submit a proposed voluntary
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0009| remediation work plan for the required cleanup or that
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0010| demonstrates that a cleanup is not required in order to comply
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0011| with applicable standards.
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0012| Section 7. CERTIFICATE OF COMPLETION.--If the department
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0013| determines that a participant has successfully complied with
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0014| the voluntary remediation agreement and the site conditions
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0015| meet applicable standards, the department shall issue the
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0016| participant a certificate of completion.
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0017| Section 8. COVENANT NOT TO SUE.--
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0018| A. After the department issues a certificate of
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0019| completion for a site, the secretary of environment shall
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0020| provide a covenant not to sue to a purchaser of the site that
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0021| did not contribute to the site contamination for any direct
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0022| liability, including future liability for claims based upon the
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0023| contamination covered by the agreement and over which the
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0024| department has authority. No person provided a covenant not to
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0025| sue pursuant to this section shall be liable for claims for
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0001| contribution for cleanup of a contaminant that is the subject
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0002| of the voluntary remediation agreement. Except as may be
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0003| provided under federal law or as may be agreed to by a federal
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0004| government entity, the covenant not to sue shall not release a
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0005| participant from liability to the federal government for claims
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0006| based on federal law. Except as may be agreed to by third
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0007| parties, the covenant not to sue shall not release a person
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0008| from liability to third parties.
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0009| B. The secretary of environment's covenant not to
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0010| sue under this section shall be transferable with title to the
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0011| site.
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0012| Section 9. RECISION.--Nothing in the Voluntary
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0013| Remediation Act shall prohibit the secretary of environment
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0014| from rescinding a certificate of completion or a covenant not
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0015| to sue if the department determines that:
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0016| A. a contaminant addressed in the agreement is an
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0017| unreasonable threat to human health or the environment;
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0018| B. the agreement was performed in a manner which
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0019| fails to comply substantially with the terms and conditions of
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0020| the agreement or voluntary remediation work plan;
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0021| C. the voluntary remediation agreement is a result
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0022| of fraud; or
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0023| D. contamination was present at the site at the
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0024| time the voluntary remediation agreement was signed but the
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0025| department did not know of the type, extent or magnitude of the
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0001| contaminants.
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0002| Section 10. LENDER LIABILITY.--An applicant who maintains
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0003| indicia of ownership primarily to protect a security interest
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0004| in a site that is the subject of a voluntary remediation
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0005| agreement and that does not participate in the management of
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0006| the site, and is not in control of or does not have
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0007| responsibility for daily operation of the site shall not be
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0008| considered an owner or operator of that site and shall not be
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0009| liable under any contaminant control or other environmental
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0010| protection law or regulation administered by the department or
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0011| otherwise responsible to the department for any environmental
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0012| contamination or response action costs associated with the
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0013| site. This section shall apply to all indicia of ownership
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0014| existing on and after the effective date of the Voluntary
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0015| Remediation Act.
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0016| Section 11. VOLUNTARY REMEDIATION FUND.--The "voluntary
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0017| remediation fund" is created in the state treasury. The fund
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0018| shall be administered by the department. All fees and cost
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0019| reimbursements collected pursuant to the regulations adopted by
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0020| the secretary of environment pursuant to the provisions of the
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0021| Voluntary Remediation Act shall be deposited in the fund.
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0022| Money in the fund is appropriated to the department for the
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0023| purpose of administering the Voluntary Remediation Act.
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0024| Disbursements from the fund shall be made upon warrants drawn
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0025| by the secretary of finance and administration pursuant to
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0001| vouchers signed by the secretary of environment.
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0002| Section 12. SEVERABILITY.--If any part or application of
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0003| the Voluntary Remediation Act is held invalid, the remainder or
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0004| its application to other situations or applicants shall not be
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0005| affected.
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0006| Section 13. EMERGENCY.--It is necessary for the public
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0007| peace, health and safety that this act take effect immediately.
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0008| State of New Mexico
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0009| House of Representatives
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0010|
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0011| FORTY-THIRD LEGISLATURE
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0012| FIRST SESSION, 1997
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0013|
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0014|
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0015| March 11, 1997
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0016|
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0017|
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0018| Mr. Speaker:
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0019|
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0020| Your APPROPRIATIONS AND FINANCE COMMITTEE, to
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0021| whom has been referred
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0022|
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0023| SENATE FINANCE COMMITTEE SUBSTITUTE FOR SENATE
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0024| CONSERVATION COMMITTEE SUBSTITUTE FOR
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0025| SENATE BILLS 446 & 362
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0001|
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0002| has had it under consideration and reports same with
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0003| recommendation that it DO PASS, amended as follows:
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0004|
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0005| 1. On page 12, line 7, after the period, strike the
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0006| remainder of the line and insert in lieu thereof "The money in
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0007| the fund shall be".
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0008|
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0009| 2. On page 12, line 8, after "appropriated" insert "by
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0010| law".
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0011|
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0012| Respectfully submitted,
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0013|
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0014|
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0015|
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0016|
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0017|
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0018| Max Coll, Chairman
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0019|
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0020|
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0021| Adopted Not Adopted
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0022|
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0023| (Chief Clerk) (Chief Clerk)
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0024|
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0025| Date
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0001|
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0002| The roll call vote was 11 For 0 Against
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0003| Yes: 11
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0004| Excused: Bird, Buffett, Marquardt, Pearce, Salazar, Varela
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0005| Absent: None
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0006|
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0007|
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0008|
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0009| G:\BILLTEXT\BILLW_97\S0362
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