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