N.M. Admin. Code § 19.8.30.3002

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.30.3002 - PERMIT SUSPENSION OR REVOCATION

A. When on the basis of an inspection the director determines that a pattern of violations of any requirements of the act, 19.8 NMAC or any permit conditions exist or has existed and if the director also finds that such violations are caused by the unwarranted failure of the permittee to comply with such requirements or conditions or that such violations are willfully caused by the permittee, the director shall, except as otherwise provided in Subsection E of 19.8.30.3002 NMAC, issue an order to a permittee requiring him to show cause as to why the permit should not be suspended or revoked. The order shall be in writing, signed by the director and shall set forth with reasonable specificity:

(1) the nature of the violations, including a citation to the requirements or conditions allegedly violated;

(2) the conduct alleged to justify the finding that such violations are the result of the permittee's unwarranted failure or were willful; and

(3) the opportunity for a hearing to be held pursuant to Subsection E of 69-25A-29 NMSA 1978 of the act.

B. For purposes of determining the propriety of an order to show cause why a permit should not be suspended or revoked, the following definitions shall apply:

(1) Willful violation means an act or omission which violates the requirements of the act, 19.8 NMAC or any permit condition, committed by a person who intends the result which actually occurs.

(2) Unwarranted failure to comply means the failure of the permittee to prevent the occurrence of any violation of any requirement of the act, or 19.8 NMAC or any permit condition, due to indifference, lack of diligence or lack of reasonable care or the failure to abate any violation of a permit, the act or 19.8 NMAC due to indifference, lack of diligence or lack of reasonable care. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee unless the permittee establishes by clear and convincing evidence, that the acts were not within the scope of employment or agency.

(3) The director may determine that a pattern of violations exists or has existed, based upon two (2) or more inspections of the permit area within any twelve month period, after considering:

(a) the number and seriousness of violations cited on more than one occasion of the same or related requirements of the act, 19.8 NMAC or the permit;

(b) the number and seriousness of violations cited on more than one occasion of different requirements of the act; and

(c) the extent to which the violations are isolated departures from lawful conduct.

C. The director shall determine that a pattern of violations exists, if he finds that there were violations of the same or related requirements of the act, the permit or 19.8 NMAC during three or more inspections of the permit area within any twelve month period.

D. Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the director shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue an order to show cause as appropriate pursuant to this section.

E. The director may decline to issue a show cause order, or may vacate an outstanding show cause order, if he finds that, taking into account exceptional factors present in the particular case, it would be demonstratively unjust to issue or to fail to vacate the show cause order. The basis for this finding shall be fully explained and documented in the records of the case, provided that no show cause order or order revoking or suspending a permit may be vacated because it is subsequently determined that the director or his duly authorized representative did not have information sufficient to justify an inspection for any condition, practice or violation which creates an imminent danger to the health or safety of the public or is causing or can reasonably expect it to cause a significant imminent environmental harm to land, air or water resources.

N.M. Admin. Code § 19.8.30.3002

11-29-27; 19.8.30.3002 NMAC - Rn, 19 NMAC 8.2.30.3002, 9-29-2000; A, 12-31-2007