N.M. Code R. § 19.8.34.3402 – Application Requirements and Procedures

A. New operations.
(1) Any person who plans to commence or continue coal extraction after October 1, 1995, in reliance on the incidental mining exemption shall file a complete application for exemption with the director for each mining area.
(2) No person may commence coal extraction based upon the exemption until the director approves such application, except as provided in Paragraph (3) of Subsection E of 19.8.34.3402 NMAC.
B. Existing operations. Any person who has commenced coal extraction at a mining area in reliance upon the incidental mining exemption prior to October 1, 1995, may continue mining operations for 60 days after October 1, 1995. Coal extraction may not continue after such 60 day period unless that person files an administratively complete application or exemption with the director. If an administratively complete application is filed within 60 days the person may continue extracting coal in reliance on the exemption beyond the 60-day period until the director makes an administrative decision on such application.
C. Additional information. The director shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.
D. Public comment period. Following publication of the newspaper notice required by Subsection I of 19.8.34.3403 NMAC, the director shall provide a period of no less than 30 days during which time any person having an interest which is or may be adversely affected by a decision on the application may submit written comments or objections.
E. Exemption determination.
(1) No later than 90 days after filing of an administratively complete application, the director shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this part, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.
(2) The determination of exemption shall be based upon information contained in the application and any other information available to the director at that time.
(3) If the director fails to provide an applicant with the determination as specified in Paragraph (1) of Subsection E of 19.8.34.3402 NMAC, an applicant who has not begun may commence coal extraction pending a determination on the application unless the director issues an interim finding, together with reasons therefore, that the applicant may not begin coal extraction.
F. Administrative review.
(1) Any adversely affected person may request administrative review of a determination under Subsection E of 19.8.34.3402 NMAC within 30 days of the notification of such determination in accordance with procedures established under 19.8.12.1200 NMAC.
(2) A petition for administrative review filed under 19.8.12.1200 NMAC shall not suspend the effect of a determination under Subsection E of 19.8.34.3402 NMAC.
[11-29-97; 19.8.34.3402 NMAC - Rn, 19 NMAC 8.2.34.3402, 9-29-2000; A, 12-31-2007; A, 08-31-2010]