N.M. Admin. Code § 19.8.11.1118

Current through Register Vol. 35, No. 20, October 22, 2024

Section 19.8.11.1118 - STANDARDS FOR CHALLENGING OWNERSHIP OR CONTROL LINKS AND THE STATUS OF VIOLATIONS

A. The provisions of this section shall apply whenever a person has and exercises a right, under the provisions of 19.8.11.1107, 1110, 1116, or 1117 NMAC or under the provisions of 19.8.12 NMAC, to challenge (1) an ownership or control link to any person and/or (2) the status of any violation covered by a notice.

B. Responsibility for decision-making.

(1) Except as provided in Paragraph (3) of Subsection B of 19.8.11.1118 NMAC:

(a) the director before which an application is pending shall have responsibility for making decisions with respect to ownership or control relationships of the application;

(b) the director that issued a permit shall have responsibility for making decisions with respect to the ownership or control relationships of the permit;

(c) the state director for the state that issued a state violation notice shall have responsibility for making decisions with respect to the ownership or control relationships of the violation;

(d) the regulatory agency that issued a violation notice, whether state or federal, shall have responsibility for making decisions concerning the status of the violation covered by such notice, i.e., whether the violation remains outstanding, has been corrected, is in the process of being corrected, or is the subject of a good faith appeal, within the meaning of Paragraph (1) of Subsection C of 19.8.11.1105 NMAC.

(2) OSM shall have responsibility for making decisions with respect to the ownership or control relationships of a federal violation notice.

(3) OSM review.

(a) With respect to information shown on AVS, the responsibilities referred to in Paragraph (1) of Subsection B of 19.8.11.1118 NMAC shall be subject to the plenary authority of OSM to review any state regulatory authority decision regarding an ownership or control link.

(b) With respect to ownership or control information which has not been entered into AVS by a state and with respect to information shown on AVS relating to the status of a violation, state regulatory authorities' determinations are subject to OSM's program authority oversight under 30 CFR Parts 733, 842, and 843.

C. Burden of proof.

(1) In any formal or informal review of an ownership or control link or of the status of a violation covered by a violation notice, the responsible agency shall make a prima facie determination or showing that such link exists, existed during the relevant period, and/or that the violation covered by such notice remains outstanding. Once such a prima facie determination or showing has been made, the person challenging such link or the status of the violation shall have the burden of proving by a preponderance of the evidence, with respect to any relevant time period:

(a) that the facts relied upon by the responsible agency to establish ownership or control under the definition of "owned or controlled" or "owns or controls" in Paragraph (8) of Subsection O of 19.8.1.7 NMAC or a presumption of ownership or control under the definition of "owned or controlled" or "owns or controls" in Paragraph (8) of Subsection O of 19.8.1.7 NMAC, do not or did not exist;

(b) that a person subject to a presumption of ownership or control under the definition of "owned or controlled" or "owns or controls" in Paragraph (8) of Subsection O of 19.8.1.7 NMAC, does not or did not in fact have the authority directly or indirectly to determine the manner in which surface coal mining operations are or were conducted, or

(c) that the violation covered by the violation notice did not exist, has been corrected, is in the process of being corrected, or is the subject of a good faith appeal within the meaning of Paragraph (1) of Subsection C of 19.8.11.1105 NMAC; provided that the existence of the violation at the time it was cited may not be challenged under the provisions of 19.8.11.1117 NMAC by a permittee, unless such challenge is made by the permittee within the context of 19.8.11.1108 and 1110 NMAC; by any person who had a prior opportunity to challenge the violation notice and who failed to do so in a timely manner; or by any person who is bound by a prior administrative or judicial determination concerning the existence of the violation.

(2) In meeting the burden of proof set forth in Paragraph (1) of Subsection C of 19.8.11.1118 NMAC, the person challenging the ownership or control link or the status of the violation shall present probative, reliable, and substantial evidence and any supporting explanatory materials, which may include before the responsible agency:

(a) affidavits setting forth specific facts concerning the scope of responsibility of the various owners or controllers of an applicant, permittee, or any person cited in a violation notice; the duties actually performed by such owners or controllers; the beginning and ending dates of such owners' or controllers' affiliation with the applicant, permittee, or person cited in a violation notice; and the nature and details of any transaction creating or severing an ownership or control link; or specific facts concerning the status of the violation;

(b) if certified, copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;

(c) if certified, copies of documents filed with or issued by any state, municipal, or federal governmental agency;

(d) an opinion of counsel, when supported by (1) evidentiary materials; (2) a statement by counsel that he or she is qualified to render the opinion; and (3) a statement that counsel has personally and diligently investigated the facts of the matter or, where counsel has not so investigated the facts, a statement that such opinion is based upon information which has been supplied to counsel and which is assumed to be true.

(3) Before any administrative or judicial tribunal reviewing the decision of the responsible agency, any evidence admissible under the rules of such tribunal.

D. Following any determination by a state director or other state agency, or any decision by an administrative or judicial tribunal reviewing such determination, the director shall review the information in AVS to determine if it is consistent with the determination or decision. If it is not, the director shall promptly inform OSM and request that the AVS information be revised to reflect the determination or decision.

N.M. Admin. Code § 19.8.11.1118

11-29-97; 19.8.11.1118 NMAC - Rn, 19 NMAC 8.2.11.1118, 9-29-2000; A, 4-28-2006