Current through Register Vol. 35, No. 24, December 23, 2024
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.
