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