Current through Register Vol. 35, No. 18, September 24, 2024
A. Bond release application.
(1) The permittee may file an application
with the director for the release of all or part of a performance bond.
Applications may be filed only at times or during seasons authorized by the
director in order to properly evaluate the completed reclamation operations.
The times or seasons appropriate for the evaluation of certain types of
reclamation shall be established in the mining and reclamation plan approved by
the director.
(2) An application
for a bond release shall at a minimum contain the following information:
(a) the permittee's name, address and the
appropriate permit number;
(b) an
accurate legal description of the land sought for bond release (either metes
and bounds or precise section, township and range designations);
(c) the location of the area proposed for
bond release shown on a USGS 7.5' map, which should also show the permit
boundaries;
(d) a brief narrative
summarizing the past history of the mine, the type, amount and date of the
current bonding instrument, the number of acres included in the bond release
application and the portion it represents of the total permit area, a
description of the type and dates of the reclamation performed with a summary
of the results achieved as they relate to the approved reclamation plan, and
any other pertinent information that the applicant or the director may consider
appropriate;
(e) a table listing
the names, addresses and number of acres held by each of the surface and
mineral owners of record in the area proposed for bond release;
(f) copies of letters sent to adjoining
landowners, local governmental bodies, tribal governments, planning agencies,
sewage and water treatment authorities, and water companies in the locality of
the reclamation operation, notifying them of the permittee's intention to seek
bond release; and
(g) other maps or
other information as may be appropriate or required by the director to locate
or characterize the areas proposed for bond release, revegetation, hydrological
or other reclamation issues;
(h)
the permittee shall include in the application for bond release a notarized
statement which certifies that all applicable reclamation activities have been
accomplished in accordance with the requirements of SMCRA, the act, the
regulatory program, and the approved reclamation plan; a certification shall be
submitted for each application or phase of bond release.
(3) Within 30 days after an application for
bond release has been filed with the director, the operator shall submit a copy
of an advertisement placed at least once a week for four successive weeks in a
newspaper of general circulation in the locality of the surface coal mining
operation. The advertisement shall be considered part of any bond release
application and shall contain the permittee's name, permit number and approval
date, notification of the precise location of the land affected, the number of
acres, the type and amount of the bond filed and the portion sought to be
released, the type and appropriate dates of reclamation work performed, a
description of the results achieved as they relate to the operator's approved
reclamation plan, and the name and address of the director, to whom written
comments, objections, or requests for public hearings and informal conferences
on the specific bond release may be submitted pursuant to Subsections F and H
of 19.8.14.1412 NMAC.
B.
Inspection by director.
(1) Upon receipt of
the bond release application, the director shall, within 30 days, or as soon
thereafter as weather conditions permit, conduct an inspection and evaluation
of the reclamation work involved. The evaluation shall consider, among other
factors, the degree of difficulty to complete any remaining reclamation,
whether pollution of surface and subsurface water is occurring, the probability
of future occurrence of such pollution, and the estimated cost of abating such
pollution. The surface owner, agent, or lessee shall be given notice of such
inspection and may participate with the director in making the bond release
inspection. The director may arrange with the permittee to allow access to the
permit area, upon request by any person with an interest in bond release, for
the purpose of gathering information relevant to the proceeding.
(2) Within 60 days from the filing of the
bond release application, if no public hearing is held pursuant to Subsection F
of 19.8.14.1412 NMAC, or, within 30 days after a public hearing has been held
pursuant to Subsection F of 19.8.14.1412 NMAC, the director shall notify in
writing the permittee, the surety or other persons with an interest in bond
collateral who have requested notification under Subsection F of 19.8.14.1409
NMAC, and the persons who either filed objections in writing or objectors who
were a party to the hearing proceedings, if any, of its decision to release or
not to release all or part of the performance bond.
C. The director may release all or part of
the bond for the entire permit area or incremental area if the director is
satisfied that all the reclamation or a phase of the reclamation covered by the
bond or portion thereof has been accomplished in accordance with the following
schedules for reclamation of phases I, II, and III.
(1) At the completion of phase I, after the
operator completes the backfilling, regrading (which may include the
replacement of topsoil) and drainage control of a bonded area in accordance
with the approved reclamation plan, 60 percent of the bond or collateral for
the applicable area.
(2) At the
completion of phase II, after revegetation has been established on the regraded
mined lands in accordance with the approved reclamation plan, an additional
amount of bond. When determining the amount of bond to be released after
successful revegetation has been established, the director shall retain that
amount of bond for the revegetated area which would be sufficient to cover the
cost of reestablishing revegetation if completed by a third party and for the
period specified for operator responsibility in Section
69-25A-19
NMSA 1978 of the act for reestablishing revegetation. No part of the bond or
deposit shall be released under this paragraph so long as the lands to which
the release would be applicable are contributing suspended solids to streamflow
or runoff outside the permit area in excess of the requirements set by
Paragraph (10) of Subsection B of Section
69-25A-19
NMSA 1978 of the act and by 19.8.19 NMAC through 19.8.28 NMAC or until soil
productivity for prime farmlands has returned to the equivalent levels of yield
as non-mined land of the same soil type in the surrounding area under
equivalent management practices as determined from the soil survey performed
pursuant to Paragraph (16) of Subsection B of Section
69-25A-10
NMSA 1978 of the act and 19.8.24 NMAC. Where a silt dam is to be retained as a
permanent impoundment pursuant to 19.8.19 NMAC through 19.8.28 NMAC, the phase
II portion of the bond may be released under this paragraph so long as
provisions for sound future maintenance by the operator or the landowner have
been made with the director.
(3) At
the completion of phase III, after the operator has completed successfully all
surface coal mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period specified for
operator responsibility in 19.8.20.2065 NMAC. However, no bond shall be fully
released under provisions of this section until reclamation requirements of the
act and the permit are fully met.
D. If the director disapproves the
application for release of the bond or portion thereof, the director shall
notify the permittee, the surety, and any person with an interest in collateral
as provided for in Subsection F of 19.8.14.1409 NMAC, in writing, stating the
reasons for disapproval and recommending corrective actions necessary to secure
the release and allowing an opportunity for a public hearing.
E. When any application for total or partial
bond release is filed with the director, the director shall notify the
municipality in which the surface coal mining operation is located by certified
mail at least 30 days prior to the release of all or a portion of the
bond.
F. Any person with a valid
legal interest which might be adversely affected by release of the bond, or the
responsible officer or head of any federal, state, tribal or local governmental
agency which has jurisdiction by law or special expertise with respect to any
environmental, social, or economic impact involved in the operation or which is
authorized to develop and enforce environmental standards with respect to such
operations, shall have the right to file written objections to the proposed
release from bond with the director within 30 days after the last publication
of the notice required by Paragraph (3) of Subsection A of 19.8.14.1412 NMAC.
If written objections are filed and a hearing is requested, the director shall
inform all the interested parties of the time and place of the hearing, and
shall hold a public hearing within 30 days after receipt of the request for the
hearing. The date, time, and location of the public hearing shall be advertised
by the director in a newspaper of general circulation in the locality for two
consecutive weeks. The public hearing shall be held in the locality of the
surface coal mining operation from which bond release is sought, or at the
location of the director's office, at the option of the objector.
G. For the purpose of the hearing under
Subsection F of 19.8.14.1412 NMAC, the director shall have the authority to
administer oaths, subpoena witnesses or written or printed material, compel the
attendance of witnesses or the production of materials, and take evidence
including, but not limited to, inspection of the land affected and other
surface coal mining operations carried on by the applicant in the general
vicinity. A verbatim record of each public hearing shall be made, and a
transcript shall be made available on the motion for any party or by order of
the director.
H. Without prejudice
to the right of an objector or the applicant, the director may hold an informal
conference as provided in Subsection B of Section
69-25A-17
NMSA 1978 of the act to resolve such written objections. The director shall
make a record of the informal conference unless waived by all parties, which
shall be accessible to all parties. The director shall also furnish all parties
of the informal conference with a written finding of the director based on the
informal conference, and the reasons for said finding.
