New Mexico Administrative Code
Title 19 - NATURAL RESOURCES AND WILDLIFE
Chapter 8 - COAL MINING
Part 30 - ENFORCEMENT
Section 19.8.30.3001 - NOTICES OF VIOLATION

Universal Citation: 19 NM Admin Code 19.8.30.3001

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

A. The director, through his duly authorized representative shall issue a notice of violation if, on the basis of an inspection, he determines a violation of any requirement of the act, 19.8 NMAC or any permit or exploration approval condition which does not create an imminent danger or harm for which a cessation order must be issued under 19.8.30.3000 NMAC.

B. A notice of violation shall be in writing, signed by the director or by his duly authorized representative and shall set forth with reasonable specificity:

(1) the nature of the violation, including a citation to the requirement allegedly violated;

(2) the remedial action required which may include interim steps;

(3) a reasonable time, but not more than ninety days for abatement, which may include time for accomplishment of interim steps;

(4) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies; and

(5) a notice of opportunity for review pursuant to 19.8.12.1203 NMAC.

C. The director or his authorized representative may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the permittee. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in Subsection D of 19.8.30.3001 NMAC. An extended abatement date pursuant to this section shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

D. Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are:

(1) where the permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(2) where there is a valid judicial order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which he has no other effective legal remedy;

(3) where the permittee cannot abate within 90 days due to a labor strike;

(4) where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

(5) where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977.

E. Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

F. If any of the conditions in Subsection D of 19.8.30.3001 NMAC exists, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the director or his or her designee and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of Subsections C and D of 19.8.30.3001 NMAC. In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his concurrence or disapproval in the file.

G. Any determination made under Subsection F of 19.8.30.3001 NMAC shall contain a notice of opportunity for review pursuant to 19.8.12.1203 NMAC.

H. No extension granted under Subsection F of 19.8.30.3001 NMAC may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of Subsection F of 19.8.30.3001 NMAC.

I. The director or his duly authorized representative shall terminate a notice of violation by written notice to the person to whom it was issued, when the director determines that all violations listed in the notice of violation have been abated.

J. Failure-to-abate cessation order.

(1) If the director or his duly authorized representative finds that a violation has not been abated within expiration of the time originally fixed or subsequently extended, he shall immediately issue an order of cessation of coal surface mining and reclamation operations, or coal exploration or the portion of operations relevant to the violation as provided in 19.8.30.3000 NMAC.

(2) If the director or his duly authorized representative finds an interim step has not been accomplished within the time originally fixed or subsequently extended he may immediately issue an order of cessation of coal surface mining and reclamation operations, or coal exploration or the portions of operations relevant to the violation as provided in 19.8.30.3000 NMAC.

K. A notice of violation which requires cessation of mining, expressly or by necessary implication, shall not be effective to cause cessation of mining following thirty (30) days after it is served unless an informal public hearing has been held within that time. The public hearing shall be on site within such reasonable proximity as will permit viewing of the site during the course of the hearing. The hearing on a notice of violation shall be conducted in accordance with the notice and hearing requirements of 19.8.30.3003 NMAC and 19.8.30.3004 NMAC governing informal hearings.

L. A notice of violation shall not be vacated simply by virtue of the fact that the condition, practice, or violation in question has been abated or if the hearing has been waived or postponed at the request of the permittee. Termination of a notice of violation by the director or expiration of a notice of violation for failure to hold a public hearing within thirty (30) days shall not affect the director's right to assess civil penalties for the violation mentioned in the notice.

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