46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO MINING; AMENDING THE SURFACE MINING ACT PROVISION FOR COSTS AND FEES OF ADMINISTRATIVE PROCEEDINGS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 69-25A-29 NMSA 1978 (being Laws 1979, Chapter 291, Section 29) is amended to read:

"69-25A-29. ADMINISTRATIVE REVIEW.--

A. A permittee issued a notice or order by the director pursuant to the provisions of Section [25 of the Surface Mining Act] 69-25A-25 NMSA 1978, or any person having an interest [which] that is or may be adversely affected by [such] the notice or order or by any modification, vacation or termination of [such] the notice or order, may apply to the director for review of the notice or order within thirty days of receipt thereof or within thirty days of its modification, vacation or termination. Upon receipt of [such] the application, the director shall cause [such] the investigation to be made as he deems appropriate. [Such] The investigation shall provide an opportunity for a public hearing, at the request of the permittee or the person having an interest which is or may be adversely affected, to enable the permittee or [such] the person to present information relating to the issuance and continuance of [such] the notice or order or the modification, vacation or termination thereof. The filing of an application for review under this subsection shall not operate as a stay of any order or notice.

B. The permittee and other interested persons shall be given written notice of the time and place of the hearing at least five days prior thereto. Any [such] hearing shall be of record and adjudicatory in nature in accordance with the commission's regulations.

C. Upon receiving the report of [such] the investigation, the director shall make findings of fact and shall issue a written decision, incorporating therein an order vacating, affirming, modifying or terminating the notice or order or the modification, vacation or termination of [such] the notice or order complained of and incorporate his findings therein. Where the application for review concerns an order for cessation of surface coal mining and reclamation operations issued pursuant to the provisions of Section [25 of the Surface Mining Act] 69-25A-25 NMSA 1978, the director shall issue the written decision within thirty days of the receipt of the application for review, unless temporary relief has been granted by the director pursuant to Subsection D of this section or by the court pursuant to Section [30 of that act] 69-25A-30 NMSA 1978.

D. Pending completion of the investigation and hearing required by this section, the applicant may file with the director a written request that the director grant temporary relief from any notice or order issued under Section [25 of the Surface Mining Act] 69-25A-25 NMSA 1978, together with a detailed statement giving reasons for granting [such] the relief. The director shall issue an order or decision granting or denying [such] the relief expeditiously. Provided that where the applicant requests relief from an order for cessation of coal mining and reclamation operations issued pursuant to Section [25 of that act] 69-25A-25 NMSA 1978, the order or decision on [such a] the request shall be issued within five days of its receipt. The director may grant [such] the relief, under such conditions as he may prescribe, if:

(1) a hearing has been held in the locality of the permit area on the request for temporary relief in which all parties were given an opportunity to be heard;

(2) the applicant shows that there is substantial likelihood that the findings of the director will be favorable to him; and

(3) [such] the relief will not adversely affect the health or safety of the public or cause significant imminent environmental harm to land, air or water resources.

E. Following the issuance of an order to show cause as to why a permit should not be suspended or revoked pursuant to Section [25 of the Surface Mining Act] 69-25A-25 NMSA 1978, the director shall hold a public hearing after giving written notice of the time, place and date thereof. Any [such] hearing shall be of record and adjudicatory in nature in accordance with the commission's regulations. Within sixty days following the public hearing, the director shall issue and furnish to the permittee and all other parties to the hearing a written decision, and the reasons therefor, concerning suspension or revocation of the permit. If the director revokes the permit, the permittee shall immediately cease surface coal mining operations on the permit area and [shall] complete reclamation within a period specified by the director, or the director shall declare as forfeited the performance bonds for the operation. Any order issued pursuant to this subsection shall be appealable directly to the commission pursuant to Subsection G of this section without further review by the director.

F. Whenever an order is issued under this section or as a result of any administrative proceeding under the Surface Mining Act, at the request of any person a sum equal to the aggregate amount of all costs and expenses, including attorney fees, as determined by the director or the commission to have been reasonably incurred by [such] the person for or in connection with his participation in [such] the proceedings, including any judicial review of agency actions, may be assessed against either party as the director, the commission or the court deems proper [provided that no such assessment shall be imposed upon the director or commission].

G. Any person who is aggrieved by a decision of the director may appeal to the commission for relief. In order to perfect [such] the appeal, a notice of appeal must be filed with the commission and the director within thirty days of the director's decision. A hearing limited to the record compiled before the director shall be conducted by the commission in accordance with commission regulations. The commission shall consider and weigh all of the evidence contained in the record and shall make independent findings upon which to base its decision. The commission shall not be bound by findings of the director, notwithstanding [such] that the findings may be supported in the record by substantial evidence. If, before the date set for hearing, application is made to the commission for leave to present additional evidence and it is shown to the satisfaction of the commission that the additional evidence is material and that there was good reason for failure to present it in the initial proceeding, the commission may order that the additional evidence be taken by the director. The director may modify his findings and decision by reason of the additional evidence and shall file with the commission a transcript of the additional evidence, together with any modified or new findings or decision."