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.

History: Laws 1997, ch. 38, § 5.