1. A. For the purposes of future permit eligibility determinations and enforcement actions, the director shall enter into AVS all:

   (1) permit records, within 30 days after the permit is issued or subsequent changes made;

   (2) unabated or uncorrected violations, within 30 days after the abatement or correction period for a violation expires;

   (3) changes to information initially required to be provided by an applicant under 19.8.7.701 NMAC, within 30 days of receiving notice of a change; and

   (4) changes in violation status, within 30 days after abatement, correction, or termination of a violation, or a decision from an administrative or judicial tribunal.

2. B. If, at any time, the director discovers that any person owns or controls an operation with an unabated or uncorrected violation, the director will determine whether enforcement action is appropriate under 19.8.31.3109 NMAC. The director shall enter the results of each enforcement action, including administrative and judicial decisions, into AVS.

3. C. The director shall serve a preliminary finding of permanent permit ineligibility under Subsection C of Section 69-25A-14 NMSA 1978 on an applicant or operator, if the criteria in Paragraphs (1) and (2) of Subsection C of 19.8.11.1119 NMAC are met. In making a finding under this subsection, the director will only consider control relationships and violations which would make, or would have made, the applicant or operator ineligible for a permit under Subsection C of 19.8.11.1105 NMAC or Subsection I of 19.8.11.1106 NMAC. The director shall make a preliminary finding of permanent permit ineligibility if it finds that:

   (1) the applicant or operator controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under Subsection C of Section 69-25A-14 NMSA 1978; and

   (2) the violations are of such nature and duration with such resulting irreparable damage to the environment as to indicate the applicant’s or operator’s intent not to comply with the act, its implementing regulations, the regulatory program, or the permit.

4. D. The applicant or operator may request a hearing on a preliminary finding of permanent permit ineligibility as stated in Subsection E of 19.8.11.1105 NMAC.

5. E. Entry into AVS.

   (1) If the applicant or operator does not request a hearing, and the time for seeking a hearing has expired, the director shall enter its finding into AVS.

   (2) If the applicant or operator requests a hearing, the director shall enter its finding into AVS only if that finding is upheld on administrative appeal.

6. F. At any time, the director may identify any person who owns or controls an entire surface coal mining operation or any relevant portion or aspect thereof. If the director identifies such a person, the director shall issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The director’s written preliminary finding shall be based on evidence sufficient to establish a prima facie case of ownership or control.
7. G. After the director issues a written preliminary finding under Subsection F of 19.8.11.1119 NMAC, the director shall allow the person subject to the preliminary finding 30 days in which to submit any information tending to demonstrate the person’s lack of ownership or control. If, after reviewing any information the person submits, the director is persuaded that the person is not an owner or controller, the director shall serve the person a written notice to that effect. If, after reviewing any information the person submits, the director still finds that the person is an owner or controller, or if the person does not submit any information within the 30-day period, the director shall issue a written finding and enter its finding into AVS.
8. H. If the director identifies the person subject to the preliminary finding as an owner or controller under Subsection G of 19.8.11.1119 NMAC, the person may challenge the finding as provided in 19.8.11.1117 and 1118 NMAC.

[19.8.11.1119 NMAC - N, 08-31-2010]