(1) The program established in this part 3 shall be voluntary and may be initiated by: (a) The submission to the department of an application for approval of a voluntary clean- up plan pursuant to section 25-16-304 for properties where remediation may be necessary to protect human health and the environment in light of the current or proposed use of the property; or (b) The submission to the department of a no action petition pursuant to section 25-16- 307 for properties where remediation is complete or not necessary to protect human health and the environment in light of the current or proposed use of the property. (2) No person, financial institution, or other entity financing a commercial real estate transaction shall require a purchaser to participate in the voluntary program contained in this part 3, and no entity of Colorado state government regulating any person, financial institution, or other entity financing a commercial real estate transaction shall require evidence of participation in this program to be a component of standard real estate loan documentation. (3) (a) The program contained in this part 3 is voluntary and may only be initiated by the owner of the subject real property. (b) The provisions of this part 3 shall not apply to the following: (I) Property that is listed or proposed for listing on the national priorities list of superfund sites established under the federal act; (II) Property that is the subject of corrective action under orders or agreements issued pursuant to the provisions of part 3 of article 15 of this title or the federal "Resource Conservation and Recovery Act of 1976", as amended; (III) Property that is subject to an order issued by or an agreement with the water quality control division pursuant to part 6 of article 8 of this title; (IV) A facility which has or should have a permit or interim status pursuant to part 3 of article 15 of this title for the treatment, storage, or disposal of hazardous waste; or (V) Property that is subject to the provisions of part 2 of article 20.5 of title 8, C.R.S. (4) (a) Each application for approval of a voluntary clean-up plan and each petition for a no action determination shall be accompanied by a filing fee determined by the department at a level sufficient to cover the direct and indirect costs of the department in processing applications for approval of voluntary clean-up plans and petitions for no action under this part 3, but such filing fee shall not exceed two thousand dollars. (b) (I) The department shall establish and publish hourly rates for review charges performed by the department in connection with applications for approval of voluntary clean-up plans and petitions for no action under this part 3. Within thirty days after the department's approval or denial of a voluntary clean-up plan or no action petition, the department shall bill an applicant or petitioner for all direct and indirect charges of review of applications and petitions under this part 3 in accordance with the hourly rate structure established pursuant to this subparagraph (I). The department's charges shall be billed against the application fee paid pursuant to this subsection (4) in accordance with subparagraph (II) of this paragraph (b). (II) (A) If the department bills charges in an amount less than the application fee, the department shall return any unused balance to the applicant or petitioner after the department's final determination in the matter has been made. (B) If the department bills charges that exceed the application fee, the department may bill the applicant or petitioner for direct and indirect charges that the department incurs in excess of the application fee up to a maximum of an additional one thousand dollars. (C) If the department determines that review of the application cannot be completed for three thousand dollars or less due to the size or complexity of the site, the department shall contact the applicant or petitioner prior to incurring additional charges. The applicant or petitioner shall then be given the opportunity to either negotiate an agreement containing an upper limit on the department's charges and complete the review, or withdraw the application and receive a refund of the unbilled balance of fees already paid to the department. Agreements negotiated pursuant to this sub-subparagraph (C) shall be in writing and shall be signed by authorized representatives of the parties. (D) The department shall make its best efforts to determine whether the application review will exceed three thousand dollars within the first ten hours of review or, if the applicant or petitioner requests a pre-application conference, within ten business days after such conference. (c) All moneys collected pursuant to this subsection (4) shall be transmitted to the state treasurer, who shall credit the same to the hazardous substance response fund, created in section 25-16-104.6 (1). Moneys collected pursuant to this subsection (4) shall be subject to annual appropriation by the general assembly only to defray the direct and indirect costs of the department in processing voluntary clean-up plans and petitions for no action determination as specified in this part 3. (5) During the time allocated for review of applications for voluntary clean-up plans and petitions for no action determination under this part 3, the department shall, upon reasonable notice to the property owner, have access at all reasonable times to the subject real property.
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