0001| SENATE BILL 446 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| MANNY M. ARAGON | 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|  SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR | 0009| SENATE BILLS 446 & 362 | 0010| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0011| | 0012| | 0013| | 0014| | 0015| | 0016| | 0017| | 0018| AN ACT | 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 | 0024| FUND; DECLARING AN EMERGENCY. | 0025| | 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 | 0016| the Voluntary Remediation Act; | 0017| C. "contaminant" means the following substances | 0018| within the jurisdiction of the department: | 0019| (1) solid waste; | 0020| (2) hazardous waste as defined in 20 NMAC | 0021| 4.1.200; | 0022| (3) an RCRA hazardous waste constituent listed | 0023| in Appendices VIII and IX in 20 NMAC 4.1.200; | 0024| (4) any substance that could alter, if | 0025| discharged or spilled, the physical, chemical, biological or | 0001| radiological qualities of water; or | 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; | 0006| D. "department" means the department of | 0007| environment; | 0008| E. "enforcement action" means: | 0009| (1) a written notice from the department or | 0010| other state agency that requires abatement of contamination | 0011| under 20 NMAC 6.2; | 0012| (2) a written order from the department or other | 0013| state agency that requires or involves the removal or remediation | 0014| of contaminants; | 0015| (3) a judicial action by the department or other | 0016| state agency seeking the abatement of contamination or the | 0017| remediation of contaminants; or | 0018| (4) a notice, order or judicial action similar | 0019| to those enumerated in Paragraphs (1) through (3) of this | 0020| subsection, but initiated by the federal government; | 0021| F. "fraud" means the knowingly false representation, | 0022| whether by words or conduct, and whether by inaccurate or | 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; | 0001| G. "participant" means an applicant that has been | 0002| approved by the department as eligible for and that signs and | 0003| performs an agreement pursuant to the provisions of the Voluntary | 0004| Remediation Act; | 0005| H. "person" means an individual or any other entity, | 0006| including partnerships, corporations, associations, responsible | 0007| business or association agents or officers, the state or a | 0008| political subdivision of the state, or any agency, department or | 0009| instrumentality of the United States and any of its officers, | 0010| agents or employees; | 0011| I. "release" means any spilling, leaking, pumping, | 0012| pouring, emitting, emptying, discharging, injecting, escaping, | 0013| leaching, dumping or disposing into the environment, including | 0014| abandonment or discarding of any contaminant; | 0015| J. "remediation" means: | 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 | 0020| (2) the cleanup or removal of released | 0021| contaminants to conform with applicable standards; | 0022| K. "site" means a parcel of real property for which an | 0023| application has been submitted pursuant to the provisions of | 0024| Section 5 of the Voluntary Remediation Act; and | 0025| L. "voluntary remediation" means remediation taken | 0001| under and in compliance with the Voluntary Remediation Act. | 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.-- | 0009| A. To be eligible for a voluntary remediation | 0010| agreement an applicant must: | 0011| (1) own the site; | 0012| (2) operate a facility located on the site; | 0013| (3) be a prospective owner of the site; or | 0014| (4) be a prospective operator of a facility at | 0015| the site. | 0016| B. An applicant shall pay at the time of submitting | 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. | 0020| C. The participant shall pay all costs of the | 0021| department's oversight of the voluntary remediation. | 0022| D. The department shall reject an application for a | 0023| voluntary remediation agreement if the department determines: | 0024| (1) the contaminants at the site constitute, | 0025| with reasonable evidence, an unreasonable threat to human health | 0001| or the environment or Native American cultural or religious sites; | 0002| (2) an administrative state or federal or | 0003| judicial state or federal enforcement action is pending that | 0004| concerns remediation of contamination described in the | 0005| application; | 0006| (3) a federal grant requires an enforcement | 0007| action at the site; | 0008| (4) the application is incomplete or inaccurate | 0009| and the alleged incompleteness or inaccuracy cannot be remedied by | 0010| the applicant within thirty days; | 0011| (5) the site has a state or federal permit that | 0012| addresses a contaminant described in the application, or a permit | 0013| is pending; | 0014| (6) an agreement between the department and the | 0015| environmental protection agency precludes the site from being | 0016| addressed under this statute; or | 0017| (7) the applicant has, within ten years | 0018| immediately preceding the date of submission of the application: | 0019| (a) knowingly misrepresented a material | 0020| fact in an application for a permit or plan submitted pursuant to | 0021| state environmental laws; | 0022| (b) refused or failed to disclose any | 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 | 0001| States; or | 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. | 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. | 0010| F. Before the department approves a proposed voluntary | 0011| remediation agreement, the applicant must: | 0012| (1) make the proposed voluntary remediation | 0013| agreement available for public inspection at a location in | 0014| reasonable proximity to the site; | 0015| (2) notify the following and advise them of the | 0016| proposed voluntary remediation agreement and the opportunity to | 0017| submit comments to the department: | 0018| (a) any local, state, federal, tribal or | 0019| pueblo governmental agency potentially affected by the proposed | 0020| voluntary remediation agreement; | 0021| (b) those parties that have requested | 0022| notification; | 0023| (c) the general public by posting at the | 0024| site on a form provided by the department; and | 0025| (d) the general public by publishing in a | 0001| newspaper of general circulation in the community potentially | 0002| affected by the voluntary remediation agreement; and | 0003| (3) submit to the department a copy of the public | 0004| notice as well as an affidavit affirming that the applicant has | 0005| complied with the provisions of this subsection. | 0006| G. The department shall: | 0007| (1) provide a comment period of at least thirty | 0008| days following publication of the newspaper notice. During the | 0009| comment period, interested persons may submit comments to the | 0010| department concerning the proposed voluntary remediation | 0011| agreement. The department shall consider public comments in | 0012| deciding whether to enter into a voluntary remediation agreement; | 0013| (2) during thirty day comment period, allow any | 0014| interested person to request a public meeting. The request shall | 0015| be in writing and shall set forth the reasons why the meeting | 0016| should be held. A public meeting will be held if the secretary of | 0017| environment determines that there is significant public interest; | 0018| and | 0019| (3) provide for appropriate public participation | 0020| in the voluntary remediation workplan, including a public meeting | 0021| if the secretary of environment determines that there is | 0022| significant public interest. | 0023| H. If an agreement is not reached between an applicant | 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 | 0002| withdraw from the negotiations. | 0003| Section 6. AGREEMENT.-- | 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. | 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 |