N.M. Code R. § 19.8.11.1107

Current through Register Vol. 35, No. 16, August 27, 2024

Section 19.8.11.1107 - IMPROVIDENTLY ISSUED PERMITS: GENERAL PROCEDURES

A. Permit review. When the director has reason to believe that the director improvidently issued a surface coal mining and reclamation permit the director shall immediately review the circumstances under which the director issued the permit, using the criteria in Subsection B of 19.8.11.1107 NMAC. If the director finds that the director improvidently issued the permit, then the director shall comply with Subsection C of 19.8.11.1107 NMAC.

B. Review criteria. The director shall find that the director improvidently issued a surface coal mining and reclamation permit if:

(1) under the regulatory program's violations review criteria at the time the director issued the permit:

(a) the director should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or

(b) the director issued the permit on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order subsequently was issued; and

(2) the violation, penalty or fee:

(a) remains unabated or delinquent; and

(b) is not subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the responsible agency's satisfaction; and

(3) where the permittee was linked to the violation, penalty or fee through ownership or control under the regulatory program's violations review criteria at the time the director issued the permit, an ownership or control link between the permittee and the person responsible for the violation, penalty or fee still exists, or where the link has been severed, the permittee continues to be responsible for the violation, penalty or fee.

C. When determining what specific unabated violations, delinquent penalties and fees, and ownership and control relationships to which 19.8.11.1107 NMAC will apply, the director shall use the applicable violations review criteria contained in the preamble of the federal register 54 FR 18440-18441.

D. The provisions of 19.8.11.1118 NMAC shall be applicable when the director determines:

(1) whether a violation, penalty or fee existed at the time that it was cited, remains unabated or delinquent, has been corrected, is in the process of being corrected or is the subject of a good faith appeal, and

(2) whether any ownership or control link between the permittee and the person responsible for the violation, penalty or fee existed, still exists or has been severed.

E. Remedial measures. When the director, under Subsection B of 19.8.11.1107 NMAC, finds that because of an unabated violation or a delinquent penalty or fee the director improvidently issued a permit, the director shall use one or more of the following remedial measures:

(1) implement, with the cooperation of the permittee or other person responsible, and of the responsible agency, a plan for abatement of the violation or a schedule for payment of the penalty or fee;

(2) impose on the permit a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

(3) suspend the permit until the violation is abated or the penalty or fee is paid; or

(4) rescind the permit under 19.8.11.1110 NMAC.

F. If the director decides to suspend the permit, it shall afford at least 30 days written notice to the permittee. If the director decides to rescind the permit, it shall issue a notice in accordance with 19.8.11.1110 NMAC. In either case, the permittee shall be given the opportunity to request administrative review of the notice as provided for in 19.8.12 NMAC. The director's decision shall remain in effect during the appeal's pendency, unless the district court grants temporary relief.

N.M. Code R. § 19.8.11.1107

11-29-97; A, 12-15-99: 19.8.11.1107 NMAC - Rn, 19 NMAC 8.2.11.1107, 9-29-2000; A, 4-28-2006