NMSA 1978, § 74-4G-1 Short title
74-4G-1. Short title
Chapter 74, Article 4G NMSA 1978 may be cited as the "Voluntary Remediation Act".
Laws 1997, ch. 38, § 1; 2006, ch. 62, § 1.
Voluntary Remediation
NMSA 1978 ch. 74, art. 4G
in effectNMSA 1978, § 74-4G-2 Purpose
74-4G-2. Purpose
The purpose of the Voluntary Remediation Act is to provide incentives for the voluntary assessment and remediation of contaminated property, with state oversight, and to remove future liability of lenders and landowners.
Laws 1997, ch. 38, § 2.
NMSA 1978, § 74-4G-3 Definitions
74-4G-3. Definitions
As used in the Voluntary Remediation Act:
A. "applicable standards" means federal, state or local standards, requirements, criteria or limitations that are legally applicable to the facility;
B. "applicant" means a person that elects to submit an application to participate and enter into an agreement under the Voluntary Remediation Act;
C. "contaminant" means the following substances within the jurisdiction of the department:
(1) solid waste;
(2) hazardous waste as defined in 20 NMAC 4.1.200;
(3) an RCRA hazardous waste constituent listed in Appendices VIII and IX in 20 NMAC 4.1.200;
(4) any substance that could alter, if discharged or spilled, the physical, chemical, biological or radiological qualities of water; or
(5) a hazardous substance, as defined by Section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act and 40 C.F.R. Part 302, Table 302.4;
D. "department" means the department of environment;
E. "enforcement action" means:
(1) a written notice from the department or other state agency that requires abatement of contamination under 20 NMAC 6.2;
(2) a written order from the department or other state agency that requires or involves the removal or remediation of contaminants;
(3) a judicial action by the department or other state agency seeking the abatement of contamination or the remediation of contaminants; or
(4) a notice, order or judicial action similar to those enumerated in Paragraphs (1) through (3) of this subsection, but initiated by the federal government;
F. "fraud" means the knowingly false representation, whether by words or conduct, and whether by inaccurate or misleading allegations or by concealment of that which should have been disclosed, that is intended to deceive or circumvent the intent of this statute;
G. "participant" means an applicant that has been approved by the department as eligible for and that signs and performs an agreement pursuant to the provisions of the Voluntary Remediation Act;
H. "person" means an individual or any other entity, including partnerships, corporations, associations, responsible business or association agents or officers, the state or a political subdivision of the state, or any agency, department or instrumentality of the United States and any of its officers, agents or employees;
I. "release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, including abandonment or discarding of any contaminant;
J. "remediation" means:
(1) actions necessary to investigate, prevent, minimize or mitigate damages to the public health or to the environment that may otherwise result from a release or threat of release; and
(2) the cleanup or removal of released contaminants to conform with applicable standards;
K. "site" means a parcel of real property for which an application has been submitted pursuant to the provisions of Section 5 [74-4G-5 NMSA 1978] of the Voluntary Remediation Act; and
L. "voluntary remediation" means remediation taken under and in compliance with the Voluntary Remediation Act.
Laws 1997, ch. 38, § 3.
NMSA 1978, § 74-4G-4 Regulations
74-4G-4. Regulations
The department shall adopt and promulgate rules and regulations necessary to implement the provisions of the Voluntary Remediation Act. The rules and regulations shall provide for, among other things, the amount of the nonrefundable application fee and a schedule for the cost of the department's oversight of the voluntary remediation.
Laws 1997, ch. 38, § 4.
NMSA 1978, § 74-4G-5 Application and fee
74-4G-5. Application and fee
A. To be eligible for a voluntary remediation agreement an applicant must:
(1) own the site;
(2) operate a facility located on the site;
(3) be a prospective owner of the site; or
(4) be a prospective operator of a facility at the site.
B. An applicant shall pay at the time of submitting the application a reasonable, nonrefundable application fee determined by the department in advance that will pay for the costs to the department of processing the application.
C. The participant shall pay all costs of the department's oversight of the voluntary remediation.
D. The department shall reject an application for a voluntary remediation agreement if the department determines:
(1) the contaminants at the site constitute, with reasonable evidence, an unreasonable threat to human health or the environment or Native American cultural or religious sites;
(2) an administrative state or federal or judicial state or federal enforcement action is pending that concerns remediation of contamination described in the application;
(3) a federal grant requires an enforcement action at the site;
(4) the application is incomplete or inaccurate and the alleged incompleteness or inaccuracy cannot be remedied by the applicant within thirty days;
(5) the site has a state or federal permit that addresses a contaminant described in the application, or a permit is pending;
(6) an agreement between the department and the environmental protection agency precludes the site from being addressed under this statute; or
(7) the applicant has, within ten years immediately preceding the date of submission of the application:
(a) knowingly misrepresented a material fact in an application for a permit or plan submitted pursuant to state environmental laws;
(b) refused or failed to disclose any material information required under this act;
(c) exhibited a history of willful disregard for environmental laws of any state or of the United States; or
(d) had an environmental permit revoked or permanently suspended for cause pursuant to provisions of any environmental laws of any state or of the United States.
E. The department shall determine, on a first-come, first-served basis and within a reasonable period defined by regulation, whether the applicant is eligible to participate in a voluntary remediation agreement pursuant to provisions of the Voluntary Remediation Act.
F. Before the department approves a proposed voluntary remediation agreement, the applicant must:
(1) make the proposed voluntary remediation agreement available for public inspection at a location in reasonable proximity to the site;
(2) notify the following and advise them of the proposed voluntary remediation agreement and the opportunity to submit comments to the department:
(a) any local, state, federal, tribal or pueblo governmental agency potentially affected by the proposed voluntary remediation agreement;
(b) those parties that have requested notification;
(c) the general public by posting at the site on a form provided by the department; and
(d) the general public by publishing in a newspaper of general circulation in the community potentially affected by the voluntary remediation agreement; and
(3) submit to the department a copy of the public notice as well as an affidavit affirming that the applicant has complied with the provisions of this subsection.
G. The department shall:
(1) provide a comment period of at least thirty days following publication of the newspaper notice. During the comment period, interested persons may submit comments to the department concerning the proposed voluntary remediation agreement. The department shall consider public comments in deciding whether to enter into a voluntary remediation agreement;
(2) during the thirty day comment period, allow any interested person to request a public meeting. The request shall be in writing and shall set forth the reasons why the meeting should be held. A public meeting will be held if the secretary of environment determines that there is significant public interest; and
(3) provide for appropriate public participation in the voluntary remediation work plan, including a public meeting if the secretary of environment determines that there is significant public interest.
H. If an agreement is not reached between an applicant and the department on or before the thirtieth day after the department determines an applicant to be eligible pursuant to the provisions of this section, the applicant or the department may withdraw from the negotiations.
Laws 1997, ch. 38, § 5.
NMSA 1978, § 74-4G-6 Agreement
74-4G-6. Agreement
A. After the department determines that an applicant is eligible, the secretary of environment may enter into a voluntary remediation agreement for remediation of the site that sets forth the terms and conditions of the department's evaluation and implementation of the oversight to be performed.
B. A voluntary remediation agreement shall include a provision for the department's oversight, including access to the site, on-site collection of samples and inspection and copying of site records.
C. The department shall not initiate an enforcement action, including an administrative or judicial action, against a participant for the contamination or release thereof, or for the activity that resulted in the contamination or release thereof, if the contamination is the subject of an agreement pursuant to the provisions of the Voluntary Remediation Act; however, this section shall not be a bar to enforcement if the participant does not successfully initiate or implement the agreement within a reasonable time.
D. The participant may terminate a voluntary remediation agreement on sixty days' written notice. The department may terminate a voluntary remediation agreement on a finding that the participant is not in compliance with the voluntary remediation agreement. The department's costs incurred or obligated before the date the notice of termination is received are recoverable under the agreement if the agreement is terminated.
E. In the event that any participant is unable to resolve a dispute concerning the actions required under a voluntary remediation agreement, that participant may submit a written request for a final decision to the secretary of environment. The secretary of environment shall issue a binding final decision, including a written statement of the reason for the decision.
F. Unless the participant demonstrates that a cleanup is not required in order to comply with applicable standards, after a voluntary remediation agreement becomes effective, the participant shall submit a proposed voluntary remediation work plan for the site remediation.
Laws 1997, ch. 38, § 6.
NMSA 1978, § 74-4G-7 Certificate of completion
74-4G-7. Certificate of completion
If the department determines that a participant has successfully complied with the voluntary remediation agreement and the site conditions meet applicable standards, the department shall issue the participant a certificate of completion.
Laws 1997, ch. 38, § 7.
NMSA 1978, § 74-4G-8 Covenant not to sue
74-4G-8. Covenant not to sue
A. After the department issues a certificate of completion for a site, the secretary of environment shall provide a covenant not to sue to a purchaser of the site that did not contribute to the site contamination for any direct liability, including future liability for claims based upon the contamination covered by the agreement and over which the department has authority. Except as may be provided under federal law or as may be agreed to by a federal government entity, the covenant not to sue shall not release a participant from liability to the federal government for claims based on federal law. Except as may be agreed to by a third party, the covenant not to sue shall not release a person from liability to third parties.
B. The secretary of environment's covenant not to sue under this section shall be transferable with title to the site.
Laws 1997, ch. 38, § 8.
NMSA 1978, § 74-4G-9 Recision
74-4G-9. Recision
Nothing in this chapter shall prohibit the secretary of environment from rescinding a certificate of completion or a covenant not to sue if the department determines that:
A. contamination addressed in the agreement is, with reasonable evidence, an unreasonable threat to human health or the environment;
B. the voluntary remediation agreement was performed in a manner that fails to comply substantially with the terms and conditions of the agreement or voluntary remediation work plan;
C. the voluntary remediation agreement is a result of fraud; or
D. contamination was present at the site at the time the voluntary remediation agreement was signed but the department did not know of the type, extent or magnitude of the contaminants.
Laws 1997, ch. 38, § 9.
NMSA 1978, § 74-4G-10 Lender liability
74-4G-10. Lender liability
A person who maintains indicia of ownership primarily to protect a security interest in a site that is the subject of a voluntary remediation agreement, who does not participate in the management of the site and is not in control of or does not have responsibility for daily operation of the site shall not be considered an owner or operator of that site and shall not be liable under any contaminant control or other environmental protection law or regulation administered by the department or otherwise responsible to the department for any environmental contamination or response action costs associated with the site. This section shall apply to all indicia of ownership existing on and after July 1, 1997.
Laws 1997, ch. 38, § 10; 1999, ch. 33, § 1.
NMSA 1978, § 74-4G-11 Voluntary remediation fund
74-4G-11. Voluntary remediation fund
The "voluntary remediation fund" is created in the state treasury. The fund shall be administered by the department. All fees and oversight payments collected pursuant to the regulations adopted by the secretary of environment pursuant to the provisions of the Voluntary Remediation Act shall be deposited in the fund. The money in the fund shall be appropriated by law to the department for the purpose of administering the Voluntary Remediation Act. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment.
Laws 1997, ch. 38, § 11.
NMSA 1978, § 74-4G-11.1 Brownfields cleanup revolving loan fund
74-4G-11.1. Brownfields cleanup revolving loan fund
A. The "brownfields cleanup revolving loan fund" is created in the state treasury. The fund shall be comprised of money from a grant from the environmental protection agency, repayments of loans and interest and income accruing on the balance of the fund. The department may make secured and unsecured loans or grants from the fund to eligible participants for the purpose of financing remedial actions and other approved activities at abandoned or underused industrial, commercial or agricultural sites or on abandoned or underused residential property. Loans or grants may be made from the fund to political subdivisions, tribes, nonprofit organizations and private entities for eligible cleanup activities pursuant to requirements for eligibility set by the environmental protection agency's brownfields program. Disbursements from the fund shall be by warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the secretary of environment or the secretary's designee. Any unexpended or unencumbered balance or income earned from the money in the fund remaining at the end of a fiscal year shall not revert to the general fund.
B. The department shall review and approve qualified loan applications, and cleanup activities shall be performed pursuant to the Voluntary Remediation Act.
C. Loan repayments shall be deposited into the brownfields cleanup revolving loan fund. Interest and earnings on the balance in the fund shall be credited to the brownfields cleanup revolving loan fund.
Laws 2006, ch. 62, § 2.
NMSA 1978, § 74-4G-12 Severability
74-4G-12. Severability
If any part or application of the Voluntary Remediation Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Laws 1997, ch. 38, § 12.
Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18577/index.doFetched: 10/20/2026