N.M. Code R. § 19.8.29.2900 – Inspections

A. The director through his duly authorized representative shall conduct an average of at least one partial inspection per month and one complete inspection per calendar quarter of each active surface coal mining and reclamation operation. A partial inspection is an on-site or aerial review of an operator's compliance with some of the permit conditions and requirements under the act and 19.8 NMAC, and includes collection of evidence of any violations observed. Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected. Any potential violation observed during an aerial inspection shall be investigated on site within three calendar days: Provided that any indication of a condition, practice or violation constituting cause for issuance of a cessation order under 19.8.30.3000 NMAC shall be investigated on site immediately. And provided further, that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of this part. A complete inspection is an on-site review of an operator's compliance with all permit conditions and requirements within the entire area disturbed or affected by the operations, and includes collection of evidence with respect to every violation.
B. The director, through his duly authorized representative shall conduct periodic inspections of all inactive surface coal mining operations and exploration sites required to comply, in whole or in part, with the act and 19.8 NMAC, including collection of evidence with respect to every violation of any condition of the exploration approval or surface coal mining and reclamation operation permit, or any requirement of this act or 19.8 NMAC. At least one complete inspection per calendar quarter shall be conducted on inactive surface coal mining operations. For purposes of this part, an inactive surface coal mining operation is one for which the director has received the written notice provided for under 19.8.20.2073 NMAC, or reclamation of phase II as defined in Paragraph (2) of Subsection C of 19.8.14.1412 NMAC has been completed.
C. Permits issued under 19.8.11 NMAC shall be inspected quarterly until notice required by Subsection D of 19.8.11.1112 NMAC has been received by the director. Upon receipt of notice, or as determined necessary by the director, inspections will be conducted as required under Subsection A of 19.8.29.2900 NMAC.
D. The inspections shall be carried out on an irregular basis so as to monitor compliance at all operations, shall occur without prior notice except for necessary on-site meetings and include the prompt filing of inspection reports adequate to enforce the requirements and carry out the terms and conditions of the act and 19.8 NMAC.
E. The authorized representatives of the director without advance notice and upon presentation of appropriate credentials:
(1) shall have the right of entry to, upon or through any coal exploration site, surface coal mining and reclamation operations or any premises in which any records required to be maintained under the act or 19.8 NMAC are located; and
(2) may at reasonable times, and without delay, have access to and copy any records, inspect any monitoring equipment or method of operation required under the act.
F. The inspections shall be in accordance with Subsection D of 69-25A-21 and Subsection E of 69-25A-25 NMSA 1978 of the act, except that a search warrant is required to enter a building to inspect if the permittee or operator does not consent to entry.
G. "Abandoned site" means a surface coal mining and reclamation operation for which the regulatory authority has found in writing that:
(1) All surface and underground coal mining and reclamation activities at the site have ceased;
(2) The regulatory authority or OSM has issued at least one notice of violation or the initial program equivalent, and either:
(a) is unable to serve the notice despite diligent efforts to do so; or
(b) the notice was served and has progressed to a failure-to-abate cessation order or the initial program equivalent;
(3) The regulatory authority:
(a) is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and
(b) is taking action pursuant to Section 518(e), 518(f), 521(a)(4) or 521(c) of SMCRA or counterparts included in the act to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and
(4) Where the site is, or was, permitted and bonded:
(a) the permit has either expired or been revoked; and
(b) the regulatory authority has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance bond.
H. In lieu of the inspection frequency established in Subparagraphs (a) and (b) of Paragraph (1) of Subsection H of 19.8.29.2900 NMAC, the regulatory authority shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per quarter.
(1) In selecting an alternate inspection frequency authorized under Subsection H of 19.8.29.2900 NMAC, the regulatory authority shall first conduct a complete inspection of the abandoned site and provide public notice under Paragraph (2) of Subsection H of 19.8.29.2900 NMAC. Following the inspection and public notice, the regulatory authority shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:
(a) how the site meets each of the criteria under the definition of an abandoned site under Subsection G of 19.8.29.2900 NMAC and thereby qualifies for a reduction in inspection frequency;
(b) whether, and to what extent, there exist on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to become, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;
(c) the extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;
(d) the degree to which erosion and sediment control is present and functioning;
(e) the extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools and other public or commercial buildings and facilities;
(f) the extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and
(g) based on a review of the complete and partial inspection report record for the site during at least the last two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.
(2) The public notice and opportunity to comment required under Paragraph (1) of Subsection H of 19.8.29.2900 NMAC shall be provided as follows:
(a) the regulatory authority shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned site providing the public with a 30-day period in which to submit written comments;
(b) the public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.
[11-29-97; 19.8.29.2900 NMAC - Rn, 19 NMAC 8.2.29.2900, 9-29-2000; A, 1-15-2002; A, 12-31-2007]