N.M. Code R. § 20.6.3.600 – Covenant Not to Sue

A. Applicability: After the secretary issues a certificate of completion or a conditional certificate of completion for a site, the secretary shall provide a covenant not to sue to a purchaser or prospective 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 or otherwise apply to claims by the federal government for claims based on federal law. Except as may be agreed to by another department or agency of the state, the covenant not to sue shall not release or otherwise apply to claims of any other office, department or agency of the State. Except as may be agreed to by a third party, the covenant not to sue shall not release or otherwise affect a person's liability to third parties.
B. Reservation of Rights: The department expressly reserves the right to take any action, including any enforcement action, to address any contamination not covered by the voluntary remediation agreement, including any release of a contaminant that occurs after issuance of the certificate of completion, or any release of a contaminant not covered by the voluntary remediation agreement. The secretary's covenant not to sue under this part shall not apply to any such release.
C. Transferability: The secretary's covenant not to sue under this part shall be transferable with title to the site, unless the title is transferred to a party who has contributed to the site contamination, or is an officer, director, parent, subsidiary, affiliate, partner, managing agent, or employee thereof.
[7/15/99; 20.6.3.600 NMAC - Rn, 20 NMAC 6.3.VI.600 to 603, Recompiled 11/27/01]