N.M. Admin. Code § 20.6.3.200

Current through Register Vol. 35, No. 23, December 10, 2024

Section 20.6.3.200 - APPLICATION FOR DETERMINATION OF ELIGIBILITY, AND FEE

A. Eligibility:

(1) To be eligible for a voluntary remediation agreement an applicant must:

(a) own the site;

(b) operate a facility located on the site;

(c) be a prospective owner of the site; or

(d) be a prospective operator of a facility at the site.

(2) Multiple applicants may apply for a voluntary remediation agreement; however, a primary applicant who will serve as the department's point of contact must be designated.

(3) The secretary shall reject an application for a voluntary remediation agreement if the secretary determines that one or more of the grounds for rejection specified in 74-4G-5(D), N.M.S.A., exist.

(4) The secretary may reject an application for a voluntary remediation agreement if:

(a) the applicant has, within ten (10) years immediately preceding the date of the application, knowingly misrepresented a material fact in an application for a permit or plan submitted pursuant to federal or local environmental law or environmental law of a state other than New Mexico;

(b) a predecessor, successor, assign, parent, subsidiary, affiliate, officer, director, partner, managing agent or employee of the applicant has within ten (10) years immediately preceding the date of submission of the application engaged in conduct described in N.M.S.A. 74-4G-5(D)(7)(a) -(c) or Paragraph 1 of this subsection, or had an environmental permit revoked or suspended as described in N.M.S.A. 74-4G-5(D)(7)(d);

(c) a permit that addresses a contaminant described in the application was required for the site or facility under any state or federal law but the site or facility did not obtain the required permit; or

(d) a notice of violation that addresses a contaminant at the site or facility described in the application has been issued by any federal, state or local agency, and action has not been taken to remedy the alleged violations to the issuing agency's satisfaction.

(5) If the department determines that an application is incomplete or inaccurate, the secretary shall deny the application or notify the applicant in writing of the alleged incompleteness or inaccuracy and require the applicant to remedy the incompleteness or inaccuracies. If the secretary requires the applicant to remedy the incompleteness or inaccuracies, and the applicant does not remedy the alleged incompleteness or inaccuracies within thirty (30) days of receipt of written notice of such requirement, the secretary shall deny the application.

(6) Applicants having sites where remedial actions were completed under another state or federal program, or without any state or federal oversight, may be allowed to enter into a voluntary remediation agreement, at the discretion of the secretary. However, all other application requirements and eligibility criteria described in this Section must be met in order for such an application to be considered. In cases where an applicant has completed remedial action prior to the effective date of these regulations under another state or federal program and received agency approval, the applicant may be required to complete additional work in order to obtain a certificate of completion as described in Subpart V of this Part [20.6.3.500 NMAC] if:

(a) the remediation did not address all contaminants or contaminated media within the site;

(b) regulatory requirements have changed since the date of completion of remediation; or

(c) the performance standard described in Subpart I, Section 110 of this Part [20.6.3.10 NMAC] is not met.

(7) The secretary shall, on a first come, first-served basis or within thirty (30) calendar days of receipt of a complete application, conditionally determine whether the applicant is eligible to participate in a voluntary remediation agreement pursuant to the provisions of Subpart III of this Part [20.6.3.300 NMAC] The secretary shall notify the applicant in writing as to its decision, and the reasons for an applicant's ineligibility, if applicable. The final eligibility determination will be made by the secretary no later than fifteen (15) calendar days after the close of the public comment period, or if a public meeting is held, within fifteen (15) calendar days of the public meeting, as described in Subpart III, Section 305 of this Part [Subsection E of 20.6.3.300 NMAC]

B. Application Process: An applicant may request to enter into a voluntary remediation agreement with the department by completing the "application for determination of eligibility" form provided by the department. The application shall include:

(1) general information disclosing:

(a) the name of the applicant;

(b) the site, its location, and past and current ownership, operator and use history;

(c) information for the ten (10) years preceding the date of submission of the application on past, present, and pending regulatory permits in New Mexico, and on administrative and judicial enforcement actions, permit revocations and suspensions, and approved remediation plans in New Mexico and other states; and

(d) other general information requested by the department.

(2) the following written "Declaration of Ability and Intent" signed by the applicant: "I attest under the pains and penalties of perjury that:

(a) I am the applicant [or title of office held, general partner, or similar responsible representative of applicant], and I am fully authorized to make this attestation on behalf of and to legally bind, the applicant;

(b) I have personally examined and am familiar with the requirements of the Voluntary Remediation Act, NMSA 1978 Sections 74-4G-1, et seq. and Voluntary Remediation Regulations, 20 NMAC 6.3 [20.6.3 NMAC];

(c) Based upon my inquiry of the person(s) employed or engaged to perform work pursuant to this application, and my/that person's(s') or entity's (ies') understanding as to the estimated costs of the proposed voluntary remediation actions, that the applicant has the technical, financial, and legal ability and intent to proceed with the proposed voluntary remediation actions in accordance with the Voluntary Remediation Act and 20 NMAC 6.3 [20.6.3 NMAC], and other applicable requirements; and

(d) The applicant will notify the department upon becoming aware of an inability to proceed with the proposed voluntary remediation actions because such actions are beyond the applicant's technical, financial, or legal ability to perform them."

(3) A Phase I environmental assessment of the site which generally conforms with the American Society for Testing and Materials (ASTM) Standard Practice E 1527, as amended, if available, or its equivalent, which at minimum includes:

(a) the legal description of the site, including a site map;

(b) the description of the physical, hydrological, and geological characteristics of the site, including the location of nearest water supply wells and surface water bodies;

(c) information of which the applicant is aware concerning the source(s), nature and extent of all contaminants or releases at the site and immediately contiguous to the site; and

(d) relevant information of which the applicant is aware concerning the potential for human or other exposure to contamination originating at the site, including but not limited to current land use, depth to groundwater, location of utilities, and potential human health and ecological receptors.

(4) 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].

(5) written consent by the property owner, if different from the applicant, supporting the proposed voluntary remediation activities, including any restrictions on property use.

C. Application Fee: An applicant shall pay at the time of submitting the application, a non-refundable application fee of $1,000 per application that will pay for the department's costs of processing the application.

N.M. Admin. Code § 20.6.3.200

7/15/99; 20.6.3.200, - Rn, 20 NMAC 6.3.II.200 to 203, Recompiled 11/27/01