0001| SENATE BILL 446
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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| MANNY M. ARAGON
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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| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR
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0009| SENATE BILLS 446 & 362
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0010| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0011|
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0012|
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0013|
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0014|
|
0015|
|
0016|
|
0017|
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0018| AN ACT
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0019| RELATING TO THE ENVIRONMENT; PROVIDING FOR VOLUNTARY
|
0020| REMEDIATION OF CONTAMINATED REAL PROPERTY AND VOLUNTARY
|
0021| AGREEMENTS; AUTHORIZING COVENANTS NOT TO SUE; PROVIDING
|
0022| AUTHORIZATION FOR A FEE FOR ADMINISTRATION OF AGREEMENTS;
|
0023| APPROPRIATING FEES FOR OPERATION OF A VOLUNTARY REMEDIATION
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0024| FUND; DECLARING AN EMERGENCY.
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0025|
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0001| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0002| Section 1. SHORT TITLE.--This act may be cited as the
|
0003| "Voluntary Remediation Act".
|
0004| Section 2. PURPOSE.--The purpose of the Voluntary
|
0005| Remediation Act is to provide incentives for the voluntary
|
0006| assessment and remediation of contaminated property, with state
|
0007| oversight, and to remove future liability of lenders and
|
0008| landowners.
|
0009| Section 3. DEFINITIONS.--As used in the Voluntary
|
0010| Remediation Act:
|
0011| A. "applicable standards" means federal, state or
|
0012| local standards, requirements, criteria or limitations that are
|
0013| legally applicable to the facility;
|
0014| B. "applicant" means a person that elects to submit
|
0015| an application to participate and enter into an agreement under
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0016| the Voluntary Remediation Act;
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0017| C. "contaminant" means the following substances
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0018| within the jurisdiction of the department:
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0019| (1) solid waste;
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0020| (2) hazardous waste as defined in 20 NMAC
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0021| 4.1.200;
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0022| (3) an RCRA hazardous waste constituent listed
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0023| in Appendices VIII and IX in 20 NMAC 4.1.200;
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0024| (4) any substance that could alter, if
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0025| discharged or spilled, the physical, chemical, biological or
|
0001| radiological qualities of water; or
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0002| (5) a hazardous substance, as defined by
|
0003| Section 101(14) of the federal Comprehensive Environmental
|
0004| Response, Compensation and Liability Act and 40 C.F.R. Part
|
0005| 302, Table 302.4;
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0006| D. "department" means the department of
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0007| environment;
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0008| E. "enforcement action" means:
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0009| (1) a written notice from the department or
|
0010| other state agency that requires abatement of contamination
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0011| under 20 NMAC 6.2;
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0012| (2) a written order from the department or other
|
0013| state agency that requires or involves the removal or remediation
|
0014| of contaminants;
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0015| (3) a judicial action by the department or other
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0016| state agency seeking the abatement of contamination or the
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0017| remediation of contaminants; or
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0018| (4) a notice, order or judicial action similar
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0019| to those enumerated in Paragraphs (1) through (3) of this
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0020| subsection, but initiated by the federal government;
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0021| F. "fraud" means the knowingly false representation,
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0022| whether by words or conduct, and whether by inaccurate or
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0023| misleading allegations or by concealment of that which should have
|
0024| been disclosed, that is intended to deceive or circumvent the
|
0025| intent of this statute;
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0001| G. "participant" means an applicant that has been
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0002| approved by the department as eligible for and that signs and
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0003| performs an agreement pursuant to the provisions of the Voluntary
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0004| Remediation Act;
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0005| H. "person" means an individual or any other entity,
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0006| including partnerships, corporations, associations, responsible
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0007| business or association agents or officers, the state or a
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0008| political subdivision of the state, or any agency, department or
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0009| instrumentality of the United States and any of its officers,
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0010| agents or employees;
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0011| I. "release" means any spilling, leaking, pumping,
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0012| pouring, emitting, emptying, discharging, injecting, escaping,
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0013| leaching, dumping or disposing into the environment, including
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0014| abandonment or discarding of any contaminant;
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0015| J. "remediation" means:
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0016| (1) actions necessary to investigate, prevent,
|
0017| minimize or mitigate damages to the public health or to the
|
0018| environment that may otherwise result from a release or threat of
|
0019| release; and
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0020| (2) the cleanup or removal of released
|
0021| contaminants to conform with applicable standards;
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0022| K. "site" means a parcel of real property for which an
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0023| application has been submitted pursuant to the provisions of
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0024| Section 5 of the Voluntary Remediation Act; and
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0025| L. "voluntary remediation" means remediation taken
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0001| under and in compliance with the Voluntary Remediation Act.
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0002| Section 4. REGULATIONS.--The department shall adopt and
|
0003| promulgate rules and regulations necessary to implement the
|
0004| provisions of the Voluntary Remediation Act. The rules and
|
0005| regulations shall provide for, among other things, the amount of
|
0006| the nonrefundable application fee and a schedule for the cost of
|
0007| the department's oversight of the voluntary remediation.
|
0008| Section 5. APPLICATION AND FEE.--
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0009| A. To be eligible for a voluntary remediation
|
0010| agreement an applicant must:
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0011| (1) own the site;
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0012| (2) operate a facility located on the site;
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0013| (3) be a prospective owner of the site; or
|
0014| (4) be a prospective operator of a facility at
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0015| the site.
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0016| B. An applicant shall pay at the time of submitting
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0017| the application a reasonable, nonrefundable application fee
|
0018| determined by the department in advance that will pay for the
|
0019| costs to the department of processing the application.
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0020| C. The participant shall pay all costs of the
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0021| department's oversight of the voluntary remediation.
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0022| D. The department shall reject an application for a
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0023| voluntary remediation agreement if the department determines:
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0024| (1) the contaminants at the site constitute,
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0025| with reasonable evidence, an unreasonable threat to human health
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0001| or the environment or Native American cultural or religious sites;
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0002| (2) an administrative state or federal or
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0003| judicial state or federal enforcement action is pending that
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0004| concerns remediation of contamination described in the
|
0005| application;
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0006| (3) a federal grant requires an enforcement
|
0007| action at the site;
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0008| (4) the application is incomplete or inaccurate
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0009| and the alleged incompleteness or inaccuracy cannot be remedied by
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0010| the applicant within thirty days;
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0011| (5) the site has a state or federal permit that
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0012| addresses a contaminant described in the application, or a permit
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0013| is pending;
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0014| (6) an agreement between the department and the
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0015| environmental protection agency precludes the site from being
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0016| addressed under this statute; or
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0017| (7) the applicant has, within ten years
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0018| immediately preceding the date of submission of the application:
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0019| (a) knowingly misrepresented a material
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0020| fact in an application for a permit or plan submitted pursuant to
|
0021| state environmental laws;
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0022| (b) refused or failed to disclose any
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0023| material information required under this act;
|
0024| (c) exhibited a history of willful
|
0025| disregard for environmental laws of any state or of the United
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0001| States; or
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0002| (d) had an environmental permit revoked or
|
0003| permanently suspended for cause pursuant to provisions of any
|
0004| environmental laws of any state or of the United States.
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0005| E. The department shall determine, on a first-come,
|
0006| first-served basis and within a reasonable period defined by
|
0007| regulation, whether the applicant is eligible to participate in a
|
0008| voluntary remediation agreement pursuant to provisions of the
|
0009| Voluntary Remediation Act.
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0010| F. Before the department approves a proposed voluntary
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0011| remediation agreement, the applicant must:
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0012| (1) make the proposed voluntary remediation
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0013| agreement available for public inspection at a location in
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0014| reasonable proximity to the site;
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0015| (2) notify the following and advise them of the
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0016| proposed voluntary remediation agreement and the opportunity to
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0017| submit comments to the department:
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0018| (a) any local, state, federal, tribal or
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0019| pueblo governmental agency potentially affected by the proposed
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0020| voluntary remediation agreement;
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0021| (b) those parties that have requested
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0022| notification;
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0023| (c) the general public by posting at the
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0024| site on a form provided by the department; and
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0025| (d) the general public by publishing in a
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0001| newspaper of general circulation in the community potentially
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0002| affected by the voluntary remediation agreement; and
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0003| (3) submit to the department a copy of the public
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0004| notice as well as an affidavit affirming that the applicant has
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0005| complied with the provisions of this subsection.
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0006| G. The department shall:
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0007| (1) provide a comment period of at least thirty
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0008| days following publication of the newspaper notice. During the
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0009| comment period, interested persons may submit comments to the
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0010| department concerning the proposed voluntary remediation
|
0011| agreement. The department shall consider public comments in
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0012| deciding whether to enter into a voluntary remediation agreement;
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0013| (2) during thirty day comment period, allow any
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0014| interested person to request a public meeting. The request shall
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0015| be in writing and shall set forth the reasons why the meeting
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0016| should be held. A public meeting will be held if the secretary of
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0017| environment determines that there is significant public interest;
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0018| and
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0019| (3) provide for appropriate public participation
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0020| in the voluntary remediation workplan, including a public meeting
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0021| if the secretary of environment determines that there is
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0022| significant public interest.
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0023| H. If an agreement is not reached between an applicant
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0024| and the department on or before the thirtieth day after the
|
0025| department determines an applicant to be eligible pursuant to the
|
0001| provisions of this section, the applicant or the department may
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0002| withdraw from the negotiations.
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0003| Section 6. AGREEMENT.--
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0004| A. After the department determines that an applicant
|
0005| is eligible, the secretary of environment may enter into a
|
0006| voluntary remediation agreement for remediation of the site that
|
0007| sets forth the terms and conditions of the department's evaluation
|
0008| and implementation of the oversight to be performed.
|
0009| B. A voluntary remediation agreement shall include a
|
0010| provision for the department's oversight, including access to the
|
0011| site, on-site collection of samples and inspection and copying of
|
0012| site records.
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0013| C. The department shall not initiate an enforcement
|
0014| action, including an administrative or judicial action, against a
|
0015| participant for the contamination or release thereof, or for the
|
0016| activity that resulted in the contamination or release thereof, if
|
0017| the contamination is the subject of an agreement pursuant to the
|
0018| provisions of the Voluntary Remediation Act; however, this section
|
0019| shall not be a bar to enforcement if the participant does not
|
0020| successfully initiate or implement the agreement within a
|
0021| reasonable time.
|
0022| D. The participant may terminate a voluntary
|
0023| remediation agreement on sixty days' written notice. The
|
0024| department may terminate a voluntary remediation agreement on a
|
0025| finding that the participant is not in compliance with the
|
0001| voluntary remediation agreement. The department's costs incurred
|
0002| or obligated before the date the notice of termination is received
|
0003| are recoverable under the agreement if the agreement is
|
0004| terminated;
|
0005| E. In the event that any participant is unable to
|
0006| resolve a dispute concerning the actions required under a
|
0007| voluntary remediation agreement, that participant may submit a
|
0008| written request for a final decision to the secretary of
|
0009| environment. The secretary of environment shall issue a binding
|
0010| final decision, including a written statement of the reason for
|
0011| the decision.
|
0012| F. Unless the participant demonstrates that a cleanup
|
0013| is not required in order to comply with applicable standards,
|
0014| after a voluntary remediation agreement becomes effective, the
|
0015| participant shall submit a proposed voluntary remediation work
|
0016| plan for the site remediation.
|
0017| Section 7. CERTIFICATE OF COMPLETION.--If the department
|
0018| determines that a participant has successfully complied with the
|
0019| voluntary remediation agreement and the site conditions meet
|
0020| applicable standards, the department shall issue the participant a
|
0021| certificate of completion.
|
0022| Section 8. COVENANT NOT TO SUE.--
|
0023| A. After the department issues a certificate of
|
0024| completion for a site, the secretary of environment shall provide
|
0025| a covenant not to sue to a purchaser of the site that did not
|
0001| contribute to the site contamination for any direct liability,
|
0002| including future liability for claims based upon the contamination
|
0003| covered by the agreement and over which the department has
|
0004| authority. Except as may be provided under federal law or as may
|
0005| be agreed to by a federal government entity, the covenant not to
|
0006| sue shall not release a participant from liability to the federal
|
0007| government for claims based on federal law. Except as may be
|
0008| agreed to by a third party, the covenant not to sue shall not
|
0009| release a person from liability to third parties.
|
0010| B. The secretary of environment's covenant not to sue
|
0011| under this section shall be transferable with title to the site.
|
0012| Section 9. RECISION.--Nothing in this chapter shall
|
0013| prohibit the secretary of environment from rescinding a
|
0014| certificate of completion or a covenant not to sue if the
|
0015| department determines that:
|
0016| A. contamination addressed in the agreement is, with
|
0017| reasonable evidence an unreasonable threat to human health or the
|
0018| environment;
|
0019| B. the voluntary remediation agreement was performed
|
0020| in a manner that fails to comply substantially with the terms and
|
0021| conditions of the agreement or voluntary remediation work plan;
|
0022| C. if the voluntary remediation agreement is a result
|
0023| of fraud; or
|
0024| D. contamination was present at the site at the time
|
0025| the voluntary remediation agreement was signed, but the department
|
0001| did not know of the type, extent or magnitude of the contaminants.
|
0002| Section 10. LENDER LIABILITY.--An applicant who maintains
|
0003| indicia of ownership primarily to protect a security interest in a
|
0004| site that is the subject of a voluntary remediation agreement, who
|
0005| does not participate in the management of the site and who is not
|
0006| in control of or does not have responsibility for daily operation
|
0007| of the site shall not be considered an owner or operator of that
|
0008| site and shall not be liable under any contaminant control or
|
0009| other environmental protection law or regulation administered by
|
0010| the department or otherwise responsible to the department for any
|
0011| environmental contamination or response action costs associated
|
0012| with the site. This section shall apply to all indicia of
|
0013| ownership existing on and after the effective date of the
|
0014| Voluntary Remediation Act.
|
0015| Section 11. VOLUNTARY REMEDIATION FUND.--The "voluntary
|
0016| remediation fund" is created in the state treasury. The fund
|
0017| shall be administered by the department. All fees and oversight
|
0018| payments collected pursuant to the regulations adopted by the
|
0019| secretary of environment pursuant to the provisions of the
|
0020| Voluntary Remediation Act shall be deposited in the fund. Money
|
0021| in the fund is appropriated to the department for the purpose of
|
0022| administering the Voluntary Remediation Act. Disbursements from
|
0023| the fund shall be made upon warrants drawn by the secretary of
|
0024| finance and administration pursuant to vouchers signed by the
|
0025| secretary of environment.
|
0001| Section 12. SEVERABILITY.--If any part or application of
|
0002| the Voluntary Remediation Act is held invalid, the remainder or
|
0003| its application to other situations or persons shall not be
|
0004| affected.
|
0005| Section 13. EMERGENCY.--It is necessary for the public
|
0006| peace, health and safety that this act take effect immediately.
|
0007|
|
0008|
|
0009| FORTY-THIRD LEGISLATURE
|
0010| FIRST SESSION, 1997
|
0011|
|
0012|
|
0013| February 22, 1997
|
0014|
|
0015| Mr. President:
|
0016|
|
0017| Your FINANCE COMMITTEE, to whom has been referred
|
0018|
|
0019| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR
|
0020| SENATE BILLS 446 & 362
|
0021|
|
0022| has had it under consideration and reports same with recommendation
|
0023| that it DO NOT PASS, but that
|
0024|
|
0025| SENATE FINANCE COMMITTEE SUBSTITUTE FOR
|
0001| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR
|
0002| SENATE BILLS 446 & 362
|
0003|
|
0004| DO PASS.
|
0005| Respectfully submitted,
|
0006|
|
0007|
|
0008|
|
0009| __________________________________
|
0010| Ben D. Altamirano, Chairman
|
0011|
|
0012|
|
0013| Adopted_______________________ Not Adopted_______________________
|
0014| (Chief Clerk) (Chief Clerk)
|
0015|
|
0016|
|
0017| Date ________________________
|
0018|
|
0019|
|
0020| The roll call vote was 6 For 0 Against
|
0021| Yes: 6
|
0022| No: None
|
0023| Excused: Aragon, Carraro, Ingle, Lyons, McKibben
|
0024| Absent: None
|
0025|
|
0001|
|
0002| S0446FC1
|
0003| SENATE FINANCE COMMITTEE SUBSTITUTE FOR
|
0004| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR
|
0005| SENATE BILLS 446 & 362
|
0006| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0007| INTRODUCED BY
|
0008|
|
0009|
|
0010|
|
0011|
|
0012|
|
0013|
|
0014| AN ACT
|
0015| RELATING TO THE ENVIRONMENT; PROVIDING FOR VOLUNTARY
|
0016| REMEDIATION OF CONTAMINATED REAL PROPERTY AND VOLUNTARY
|
0017| AGREEMENTS; AUTHORIZING COVENANTS NOT TO SUE; PROVIDING
|
0018| AUTHORIZATION FOR A FEE FOR ADMINISTRATION OF AGREEMENTS;
|
0019| APPROPRIATING FEES FOR OPERATION OF A VOLUNTARY REMEDIATION
|
0020| FUND; DECLARING AN EMERGENCY.
|
0021|
|
0022| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0023| Section 1. SHORT TITLE.--This act may be cited as the
|
0024| "Voluntary Remediation Act".
|
0025| Section 2. PURPOSE.--The purpose of the Voluntary
|
0001| Remediation Act is to provide incentives for the voluntary
|
0002| assessment and remediation of contaminated property, with state
|
0003| oversight, and to remove future liability of lenders and
|
0004| landowners.
|
0005| Section 3. DEFINITIONS.--As used in the Voluntary
|
0006| Remediation Act:
|
0007| A. "applicable standards" means federal, state or
|
0008| local standards, requirements, criteria or limitations that are
|
0009| legally applicable to the facility;
|
0010| B. "applicant" means a person that elects to submit
|
0011| an application to participate and enter into an agreement under
|
0012| the Voluntary Remediation Act;
|
0013| C. "contaminant" means the following substances
|
0014| within the jurisdiction of the department:
|
0015| (1) solid waste;
|
0016| (2) hazardous waste as defined in 20 NMAC
|
0017| 4.1.200;
|
0018| (3) an RCRA hazardous waste constituent listed
|
0019| in Appendices VIII and IX in 20 NMAC 4.1.200;
|
0020| (4) any substance that could alter, if
|
0021| discharged or spilled, the physical, chemical, biological or
|
0022| radiological qualities of water; or
|
0023| (5) a hazardous substance, as defined by Section
|
0024| 101(14) of the federal Comprehensive Environmental Response,
|
0025| Compensation and Liability Act and 40 C.F.R. Part 302, Table
|
0001| 302.4;
|
0002| D. "department" means the department of environment;
|
0003| E. "enforcement action" means:
|
0004| (1) a written notice from the department or
|
0005| other state agency that requires abatement of contamination
|
0006| under 20 NMAC 6.2;
|
0007| (2) a written order from the department or other
|
0008| state agency that requires or involves the removal or
|
0009| remediation of contaminants;
|
0010| (3) a judicial action by the department or other
|
0011| state agency seeking the abatement of contamination or the
|
0012| remediation of contaminants; or
|
0013| (4) a notice, order or judicial action similar to
|
0014| those enumerated in Paragraphs (1) through (3) of this subsection,
|
0015| but initiated by the federal government;
|
0016| F. "fraud" means the knowingly false representation,
|
0017| whether by words or conduct, and whether by inaccurate or
|
0018| misleading allegations or by concealment of that which should have
|
0019| been disclosed, that is intended to deceive or circumvent the
|
0020| intent of this statute;
|
0021| G. "participant" means an applicant that has been
|
0022| approved by the department as eligible for and that signs and
|
0023| performs an agreement pursuant to the provisions of the Voluntary
|
0024| Remediation Act;
|
0025| H. "person" means an individual or any other entity,
|
0001| including partnerships, corporations, associations, responsible
|
0002| business or association agents or officers, the state or a
|
0003| political subdivision of the state, or any agency, department or
|
0004| instrumentality of the United States and any of its officers,
|
0005| agents or employees;
|
0006| I. "release" means any spilling, leaking, pumping,
|
0007| pouring, emitting, emptying, discharging, injecting, escaping,
|
0008| leaching, dumping or disposing into the environment, including
|
0009| abandonment or discarding of any contaminant;
|
0010| J. "remediation" means:
|
0011| (1) actions necessary to investigate, prevent,
|
0012| minimize or mitigate damages to the public health or to the
|
0013| environment that may otherwise result from a release or threat of
|
0014| release; and
|
0015| (2) the cleanup or removal of released contaminants
|
0016| to conform with applicable standards;
|
0017| K. "site" means a parcel of real property for which an
|
0018| application has been submitted pursuant to the provisions of
|
0019| Section 5 of the Voluntary Remediation Act; and
|
0020| L. "voluntary remediation" means remediation taken under
|
0021| and in compliance with the Voluntary Remediation Act.
|
0022| Section 4. REGULATIONS.--The department shall adopt and
|
0023| promulgate rules and regulations necessary to implement the
|
0024| provisions of the Voluntary Remediation Act. The rules and
|
0025| regulations shall provide for, among other things, the amount of
|
0001| the nonrefundable application fee and a schedule for the cost of
|
0002| the department's oversight of the voluntary remediation.
|
0003| Section 5. APPLICATION AND FEE.--
|
0004| A. To be eligible for a voluntary remediation agreement
|
0005| an applicant must:
|
0006| (1) own the site;
|
0007| (2) operate a facility located on the site;
|
0008| (3) be a prospective owner of the site; or
|
0009| (4) be a prospective operator of a facility at the
|
0010| site.
|
0011| B. An applicant shall pay at the time of submitting the
|
0012| application a reasonable, nonrefundable application fee determined
|
0013| by the department in advance that will pay for the costs to the
|
0014| department of processing the application.
|
0015| C. The participant shall pay all costs of the
|
0016| department's oversight of the voluntary remediation.
|
0017| D. The department shall reject an application for a
|
0018| voluntary remediation agreement if the department determines:
|
0019| (1) the contaminants at the site constitute, with
|
0020| reasonable evidence, an unreasonable threat to human health or the
|
0021| environment or Native American cultural or religious sites;
|
0022| (2) an administrative state or federal or judicial
|
0023| state or federal enforcement action is pending that concerns
|
0024| remediation of contamination described in the application;
|
0025| (3) a federal grant requires an enforcement action
|
0001| at the site;
|
0002| (4) the application is incomplete or inaccurate and
|
0003| the alleged incompleteness or inaccuracy cannot be remedied by the
|
0004| applicant within thirty days;
|
0005| (5) the site has a state or federal permit that
|
0006| addresses a contaminant described in the application, or a permit
|
0007| is pending;
|
0008| (6) an agreement between the department and the
|
0009| environmental protection agency precludes the site from being
|
0010| addressed under this statute; or
|
0011| (7) the applicant has, within ten years immediately
|
0012| preceding the date of submission of the application:
|
0013| (a) knowingly misrepresented a material fact in
|
0014| an application for a permit or plan submitted pursuant to state
|
0015| environmental laws;
|
0016| (b) refused or failed to disclose any material
|
0017| information required under this act;
|
0018| (c) exhibited a history of willful disregard
|
0019| for environmental laws of any state or of the United 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 pueblo
|
0012| governmental agency potentially affected by the proposed voluntary
|
0013| remediation agreement;
|
0014| (b) those parties that have requested
|
0015| notification;
|
0016| (c) the general public by posting at the site
|
0017| 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 the 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 in
|
0013| the voluntary remediation work plan, including a public meeting if
|
0014| the secretary of environment determines that there is significant
|
0015| 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 is
|
0023| eligible, the secretary of environment may enter into a voluntary
|
0024| remediation agreement for remediation of the site that sets forth
|
0025| the terms and conditions of the department's evaluation and
|
0001| 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 remediation
|
0016| agreement on sixty days' written notice. The department may
|
0017| terminate a voluntary remediation agreement on a finding that the
|
0018| participant is not in compliance with the voluntary remediation
|
0019| agreement. The department's costs incurred or obligated before
|
0020| the date the notice of termination is received are recoverable
|
0021| under the agreement if the agreement is terminated.
|
0022| E. In the event that any participant is unable to
|
0023| resolve a dispute concerning the actions required under a
|
0024| voluntary remediation agreement, that participant may submit a
|
0025| written request for a final decision to the secretary of
|
0001| environment. The secretary of environment shall issue a binding
|
0002| final decision, including a written statement of the reason for
|
0003| the decision.
|
0004| F. Unless the participant demonstrates that a cleanup is
|
0005| not required in order to comply with applicable standards, after a
|
0006| voluntary remediation agreement becomes effective, the participant
|
0007| shall submit a proposed voluntary remediation work plan for the
|
0008| site remediation.
|
0009| Section 7. CERTIFICATE OF COMPLETION.--If the department
|
0010| determines that a participant has successfully complied with the
|
0011| voluntary remediation agreement and the site conditions meet
|
0012| applicable standards, the department shall issue the participant a
|
0013| certificate of completion.
|
0014| Section 8. COVENANT NOT TO SUE.--
|
0015| A. After the department issues a certificate of
|
0016| completion for a site, the secretary of environment shall provide
|
0017| a covenant not to sue to a purchaser of the site that did not
|
0018| contribute to the site contamination for any direct liability,
|
0019| including future liability for claims based upon the contamination
|
0020| covered by the agreement and over which the department has
|
0021| authority. Except as may be provided under federal law or as may
|
0022| be agreed to by a federal government entity, the covenant not to
|
0023| sue shall not release a participant from liability to the federal
|
0024| government for claims based on federal law. Except as may be
|
0025| agreed to by a third party, the covenant not to sue shall not
|
0001| release a person from liability to third parties.
|
0002| B. The secretary of environment's covenant not to sue
|
0003| under this section shall be transferable with title to the site.
|
0004| Section 9. RECISION.--Nothing in this chapter shall prohibit
|
0005| the secretary of environment from rescinding a certificate of
|
0006| completion or a covenant not to sue if the department determines
|
0007| that:
|
0008| A. contamination addressed in the agreement is, with
|
0009| reasonable evidence, an unreasonable threat to human health or the
|
0010| environment;
|
0011| B. the voluntary remediation agreement was performed in
|
0012| a manner that fails to comply substantially with the terms and
|
0013| conditions of the agreement or voluntary remediation work plan;
|
0014| C. the voluntary remediation agreement is a result of
|
0015| fraud; or
|
0016| D. contamination was present at the site at the time the
|
0017| voluntary remediation agreement was signed but the department did
|
0018| not know of the type, extent or magnitude of the contaminants.
|
0019| Section 10. LENDER LIABILITY.--An applicant who maintains
|
0020| indicia of ownership primarily to protect a security interest in a
|
0021| site that is the subject of a voluntary remediation agreement, who
|
0022| does not participate in the management of the site, and is not in
|
0023| control of or does not have responsibility for daily operation of
|
0024| the site shall not be considered an owner or operator of that site
|
0025| and shall not be liable under any contaminant control or other
|
0001| environmental protection law or regulation administered by the
|
0002| department or otherwise responsible to the department for any
|
0003| environmental contamination or response action costs associated
|
0004| with the site. This section shall apply to all indicia of
|
0005| ownership existing on and after the effective date of the
|
0006| Voluntary Remediation Act.
|
0007| Section 11. VOLUNTARY REMEDIATION FUND.--The "voluntary
|
0008| remediation fund" is created in the state treasury. The fund
|
0009| shall be administered by the department. All fees and oversight
|
0010| payments collected pursuant to the regulations adopted by the
|
0011| secretary of environment pursuant to the provisions of the
|
0012| Voluntary Remediation Act shall be deposited in the fund. Money
|
0013| in the fund is appropriated to the department for the purpose of
|
0014| administering the Voluntary Remediation Act. Disbursements from
|
0015| the fund shall be made upon warrants drawn by the secretary of
|
0016| finance and administration pursuant to vouchers signed by the
|
0017| secretary of environment.
|
0018| Section 12. SEVERABILITY.--If any part or application of the
|
0019| Voluntary Remediation Act is held invalid, the remainder or its
|
0020| application to other situations or persons shall not be affected.
|
0021| Section 13. EMERGENCY.--It is necessary for the public
|
0022| peace, health and safety that this act take effect immediately.
|
0023|
|
0024| State of New Mexico
|
0025| House of Representatives
|
0001|
|
0002| FORTY-THIRD LEGISLATURE
|
0003| FIRST SESSION, 1997
|
0004|
|
0005|
|
0006| March 10, 1997
|
0007|
|
0008|
|
0009| Mr. Speaker:
|
0010|
|
0011| Your ENERGY AND NATURAL RESOURCES COMMITTEE, to
|
0012| whom has been referred
|
0013|
|
0014| SENATE FINANCE COMMITTEE SUBSTITUTE FOR SENATE
|
0015| CONSERVATION COMMITTEE SUBSTITUTE FOR SENATE BILLS
|
0016| 446 AND 362
|
0017|
|
0018| has had it under consideration and reports same with
|
0019| recommendation that it DO PASS, and thence referred to the
|
0020| APPROPRIATIONS AND FINANCE COMMITTEE.
|
0021|
|
0022| Respectfully submitted,
|
0023|
|
0024|
|
0025|
|
0001|
|
0002| James Roger Madalena, Chairman
|
0003|
|
0004|
|
0005| Adopted Not Adopted
|
0006| (Chief Clerk) (Chief Clerk)
|
0007|
|
0008| Date
|
0009|
|
0010| The roll call vote was 11 For 0 Against
|
0011| Yes: 11
|
0012| Excused: Knowles
|
0013| Absent: None
|
0014|
|
0015|
|
0016| G:\BILLTEXT\BILLW_97\S0446 State of New Mexico
|
0017| House of Representatives
|
0018|
|
0019| FORTY-THIRD LEGISLATURE
|
0020| FIRST SESSION, 1997
|
0021|
|
0022|
|
0023| March 11, 1997
|
0024|
|
0025|
|
0001| Mr. Speaker:
|
0002|
|
0003| Your APPROPRIATIONS AND FINANCE COMMITTEE, to whom
|
0004| has been referred
|
0005|
|
0006| SENATE FINANCE COMMITTEE SUBSTITUTE FOR SENATE
|
0007| CONSERVATION COMMITTEE SUBSTITUTE FOR
|
0008| SENATE BILLS 446 & 362
|
0009|
|
0010| has had it under consideration and reports same with
|
0011| recommendation that it DO PASS, amended as follows:
|
0012|
|
0013| 1. On page 12, line 7, after the period, strike the remainder
|
0014| of the line and insert in lieu thereof "The money in the fund shall
|
0015| be".
|
0016|
|
0017| 2. On page 12, line 8, after "appropriated" insert "by law".
|
0018|
|
0019| Respectfully submitted,
|
0020|
|
0021|
|
0022|
|
0023|
|
0024| Max Coll, Chairman
|
0025|
|
0001|
|
0002| Adopted Not Adopted
|
0003| (Chief Clerk) (Chief Clerk)
|
0004|
|
0005| Date
|
0006|
|
0007| The roll call vote was 11 For 0 Against
|
0008| Yes: 11
|
0009| Excused: Bird, Buffett, Marquardt, Pearce, Salazar, Varela
|
0010| Absent: None
|
0011|
|
0012|
|
0013|
|
0014| G:\BILLTEXT\BILLW_97\S0446
|