N.M. Admin. Code § 19.8.14.1413

Current through Register Vol. 35, No. 18, September 24, 2024

Section 19.8.14.1413 - FORFEITURE OF BONDS

A. If an operator refuses or is unable to conduct reclamation of an unabated violation, if the terms of the permit are not met, or if the operator defaults on the conditions under which the bond was accepted, the director shall take the following action to forfeit all or part of a bond or bonds for any permit area or an increment of a permit area:

(1) send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond, if any, informing them of the determination to forfeit all or part of the bond, including the reasons for the forfeiture and the amount to be forfeited; the amount shall be based on the estimated total cost of achieving the reclamation plan requirements;

(2) advise the permittee and surety, if applicable, of the conditions under which forfeiture may be avoided; such conditions may include, but are not limited to:

(a) agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule which meets the conditions of the permit, the reclamation plan, and the regulatory program and a demonstration that such party has the ability to satisfy the conditions; or

(b) the director may allow a surety to complete the reclamation plan, or the portion of the reclamation plan applicable to the bonded phase or increment, if the surety can demonstrate an ability to complete the reclamation in accordance with the approved reclamation plan; except where the director may approve partial release authorized under 19.8.14.1412 NMAC, no surety liability shall be released until successful completion of all reclamation under the terms of the permit, including applicable liability periods of 19.8.14.1403 NMAC.

B. In the event forfeiture of the bond is required by this section, the director shall:

(1) proceed to collect the forfeited amount as provided by applicable laws for the collection of defaulted bonds or other debts if actions to avoid forfeiture have not been taken, or if rights of appeal, if any, have not been exercised within a time established by the director, or if such appeal, if taken, is unsuccessful;

(2) use funds collected from bond forfeiture to complete the reclamation plan, or portion thereof, on the permit area or increment, to which bond coverage applies.

C. Upon default on the conditions under which the bond was accepted, the director may cause the forfeiture of any and all bonds deposited to complete reclamation for which the bonds were posted. Unless specifically limited, as provided in Subsection B of 19.8.14.1401 NMAC, bond liability shall extend to the entire permit area under conditions of forfeiture.

D. Discrepancies between bond amounts and actual costs of reclamation.

(1) In the event the estimated amount forfeited is insufficient to pay for the full cost of reclamation, the operator shall be liable for remaining costs. The director may complete, or authorize completion of, reclamation of the bonded area in accordance with the permit terms and may recover from the operator all reasonably incurred costs of reclamation in excess of the amount forfeited.

(2) In the event the amount of performance bond forfeited was more than the amount necessary to complete reclamation, the unused funds shall be returned by the director to the party from whom they were collected.

N.M. Admin. Code § 19.8.14.1413

11-29-97; 19.8.14.1413 NMAC - Rn, 19 NMAC 8.2.14.1413, 9-29-2000; A, 12-31-2007