N.M. Code R. § 20.6.3.300 – Voluntary Remediation Agreement

A. Agreement Provisions:
(1) After the secretary determines that an applicant is eligible, the secretary may enter into a voluntary remediation agreement with the applicant. Such an agreement shall be made final after receipt and incorporation of public comments, as described in Section 304 of this Subpart [Subsection D of 20.6.3.300 NMAC].
(2) The voluntary remediation agreement shall be set forth on a standard form developed by the department, and shall include:
(a) A provision for the Department's oversight, including:
(i) access to the site;
(ii) on-site collection of samples and inspection and copying of site and facility records;
(iii) compensation for oversight costs in accordance with the fee structure specified in Section 310 of this Part [Subsection J of 20.6.3.300 NMAC];
(b) a reference to applicable statutes, regulations, standards, and guidance that must be complied with;
(c) a provision requiring the site to be remediated to applicable standards such that the performance standard described in Subpart I, Section 110 of this Part [20.6.3.10 NMAC] will be achieved;
(d) a preliminary work plan, describing the proposed voluntary remediation activities as they are currently envisioned as being submitted in a final voluntary remediation work plan, as described in Subpart IV of this Part [20.6.3.400 NMAC];
(e) identification of items to be submitted for department review and approval, including a work plan, quarterly status reports or status reports to be submitted at a different frequency, as determined by the department, and a final completion report that provides all information necessary to verify that all work contemplated by the voluntary remediation agreement has been completed, and that the applicable standards have been met;
(f) a provision requiring the applicant to obtain all applicable permits for the site and any required access agreements; and
(g) a schedule for completing significant proposed tasks, report submittals, and department review.
(3) The secretary 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 results in the contamination or release thereof, if the contamination is the subject of an agreement pursuant to these regulations. However, this Section shall not be a bar to any enforcement action if the agreement is not finalized, if the agreement is terminated or rescinded, or if the participant does not successfully initiate or implement the agreement within a reasonable time under the schedules set forth in the voluntary remediation agreement and approved work plans.
(4) The agreement shall become final and effective upon being signed by both the secretary and the applicant. The effective date of the agreement shall be the later date of signature by either the secretary or the applicant.
B. Public Notice and Comment:
(1) Before the voluntary remediation agreement becomes finalized, the applicant must:
(a) make the proposed voluntary remediation agreement available for public inspection at a location in reasonable proximity to the site, within ten (10) calendar days of the receipt of the conditional eligibility determination from the department;
(b) notify the following entities and advise them of the proposed voluntary remediation agreement, the location where the proposed agreement can be reviewed, and the opportunity to submit comments to the department;
(i) any local, state, federal, tribal or pueblo governmental agency potentially affected by the proposed voluntary remediation agreement, including at a minimum, the mayor and director of the board of health, or their equivalent, of the municipality in which the site is located;
(ii) those parties that have requested notification;
(iii) the general public by posting a notice at the site on a form provided by the department, and by publishing a notice in a newspaper of general circulation in the state and a newspaper published in the area where the site is located, such notice to be published in the legal advertisements section of the newspaper and at one other place in the newspaper chosen to give the general public the most effective notice, and if the department determines it is appropriate, shall be published in both English and Spanish;
(c) Include in the public notice:
(i) the name of the applicant;
(ii) the location of the site;
(iii) a brief description of the proposed remediation activities described in the preliminary voluntary remediation work plan;
(iv) the address to which comments may be submitted and the deadline for submitting comments;
(v) the address and telephone number at which persons may obtain further information; and
(d) submit to the department a copy of the public notice as well as an affidavit of publication and a signed statement affirming that the applicant has complied with the provisions of this Subsection [Paragraph].
(2) The secretary shall provide a comment period of at least thirty (30) calendar days following publication of the newspaper notice.
(3) During the comment period, interested parties may submit written comments to the department concerning the proposed voluntary remediation agreement activities.
(4) During the comment period, any interested person may submit a request for public meeting. The request shall be in writing to the department and shall set forth the reasons why the meeting should be held. A public meeting will be held at the applicant's expense if the secretary determines that there is significant public interest.
(5) If a public meeting is to be held, the applicant shall, at its expense, at least ten (10) calendar days before the meeting, mail a notice of the time and place of the meeting to all persons who have submitted written comments or a request for public meeting, and publish the notice in a newspaper of general circulation in the state and a newspaper published in the area where the site is located, in the legal advertisements section of the newspaper and at one other place in the newspaper chosen to give the general public the most effective notice. If the department determines it is appropriate, the notice shall be published in both English and Spanish.
C. Public Meeting:
(1) The department may appoint a meeting facilitator.
(2) The applicant and the department may prepare a fact sheet to be distributed at the public meeting, written in English and Spanish or other language as deemed appropriate, describing site history and the planned voluntary remediation activities.
(3) The record of the public meeting will consist of a tape recording. Tape copying and other transcript costs shall be paid by the person requesting the copy or transcript.
(4) Persons requiring assistance in the form of auxiliary aid or translation will have such assistance provided at the expense of the applicant.
(5) At the meeting, all interested persons shall be given a reasonable chance to submit data, views, or arguments orally or in writing, and to ask questions of the department and of the applicant, or its authorized representatives.
D. Consideration of Public Comments:
(1) In deciding whether to enter into a voluntary remediation agreement, and whether to approve the terms of such an agreement, the secretary shall consider public comments.
(2) If the secretary deems it appropriate, public comments will be incorporated into the final voluntary remediation agreement.
E. Approval of Voluntary Remediation Agreement: The secretary shall, within thirty (30) calendar days of the secretary's final determination that the applicant is eligible, approve, approve with modifications, or disapprove the proposed voluntary remediation agreement. The secretary shall mail notice of this determination to the applicant and all persons who presented written comments or presented oral comments at the public hearing.
F. Execution of Voluntary Remediation Agreement: If the secretary approves the voluntary remediation agreement as proposed, the secretary and applicant shall execute the agreement and the agreement shall become effective. If the secretary approves the voluntary remediation agreement with modifications and the modifications are acceptable to the applicant, the secretary and applicant shall execute the agreement and the agreement shall become effective.
G. Additional Public Participation: If members of the public request to participate in the voluntary remediation activities, then a mailing list of interested parties will be developed. These interested parties will be kept informed of the availability of key project submittals as they are received by the department. Such submittals will be made available by the department for public review and comment upon request.
H. Termination:
(1) If an agreement is not reached between an applicant and the secretary on or before the thirtieth (30th) calendar day after the secretary determines an applicant to be eligible pursuant to the provisions of Subparts II and III of this Part [20.6.3.200 and 20.6.3.300 NMAC], the applicant or the secretary may withdraw from the negotiations.
(2) The participant may terminate a voluntary remediation agreement with sixty (60) calendar days' written notice via certified mail, return receipt requested, to the department.
(3) The secretary may terminate a voluntary remediation agreement on a finding that the participant is not in compliance with the voluntary remediation agreement. Notice of termination will be made to the participant via certified mail, return receipt requested, and facts supporting the secretary's rationale for termination shall be set forth in the notification.
(4) The department's costs incurred or obligated before the date the notice of termination is received are recoverable by the department under the agreement if the agreement is terminated.
I. Dispute Resolution: In the event of any dispute regarding the requirements of the voluntary remediation agreement, oversight costs charged by the department to the participant, these regulations, or the Act, the participant may notify the secretary by certified mail that a dispute has arisen and the participant desires to invoke the dispute resolution provisions of this Section. Such notification must be made within fifteen (15) calendar days after the participant receives the decision of the secretary that causes the dispute, or the applicant waives its right to dispute the decision. Upon such notification, all deadlines affected by the dispute shall be extended for a thirty (30) calendar day negotiation period, or for a maximum of sixty (60) calendar days if approved by the secretary for good cause shown. During this negotiation period, the secretary and the participant shall meet at least once. Such meeting(s) may be facilitated by a mutually agreed upon third party, but the third party shall assume no power or authority granted or delegated to the secretary by the Act. If the dispute remains unresolved after the negotiation period, the secretary shall issue a binding final decision, including a written statement of the reason for the decision.
J. Oversight Fee Structure: In accordance with the terms and schedule specified in the voluntary remediation agreement, the participant will compensate the department for all reasonable costs associated with the oversight of the voluntary remediation activities based upon a standard hourly rate to be calculated by the department on an annual basis. Oversight costs shall include direct and indirect costs of overhead, salaries, benefits, equipment and utility use fees, and legal, management, and support costs associated with the preparation of the voluntary remediation agreement, review of the participant's work plans and reports, and oversight of and performance of field activities (including but not limited to travel, sampling, and chemical analysis of samples), participation in dispute resolution activities, as well as long-term oversight performed by the department after its issue of a conditional certificate of completion, as described in Subpart V of this Part [20.6.3.500 NMAC]. Oversight will be invoiced based on actual hours of staff oversight, at the rate calculated per a formula established by the department. Travel and per diem costs will be invoiced at state-designated rates. Sampling and analysis costs will be invoiced at actual cost plus indirect overhead rate. The effective hourly rate for the first twelve (12) months following the effective date of these regulations shall be based on the department's best estimate of total operating costs, and total available technical staff hours. The hourly rate for subsequent periods will be calculated and subsequently updated on November 1 of each year, following a thirty (30) calendar day public comment period. [7/15/99], 20.6.3.300 NMAC - Rn, 20 NMAC 6.3.III.300 to 310, Recompiled 11/27/01]