A. The permittee may file a request with the director for the release of all or part of a performance bond or deposit. Within thirty days after any application for bond or deposit release has been filed with the director, the operator shall submit a copy of an advertisement placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. Such advertisement shall be considered part of any bond release application and shall contain a notification of the precise location of the land affected, the number of acres, the permit and the date approved, the amount of the bond filed and the portion sought to be released, and the type and appropriate dates of reclamation work performed, and a description of the results achieved as they relate to the operator's approved reclamation plan. In addition, as part of any bond release application, the applicant shall submit copies of letters which he has sent to adjoining property owners, local governmental bodies, planning agencies and sewage and water treatment authorities or water companies in the locality in which the surface coal mining and reclamation activities took place, notifying them of his intention to seek release from the bond.

B. Upon receipt of the notification and request, the director shall within thirty days conduct an inspection an evaluation of the reclamation work involved. Such evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of continuance or future occurrence of such pollution and the estimated cost of abating such pollution. The director shall notify the permittee in writing of his decision to release or not to release all or part of the performance bond or deposit within sixty days from the filing of the request, if no public hearing is held pursuant to Subsection F of this section, and if there has been a public hearing held pursuant thereto, within thirty days thereafter.

C. The director may release in whole or in part the bond or deposit if he is satisfied the reclamation covered by the bond or deposit or portion thereof has been accomplished as required by the Surface Mining Act according to the following schedule:

(1) when the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent of the bond or collateral for the applicable permit area;

(2) after revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan. When determining the amount of bond to be released after successful revegetation has been established, the director shall retain that amount of the bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation and for the period specified for operator responsibility in Section 19 [69-25A-19 NMSA 1978] of the Surface Mining Act for reestablishing revegetation. No part of the bond or deposit shall be released under this paragraph so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by Section 19 of that act or until soil productivity for prime farmlands has returned to equivalent levels of yield as non-minded land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to Section 10 [69-25A-10 NMSA 1978] of that act. Where a silt dam is to be retained as a permanent impoundment pursuant to Section 19 of that act, the portion of bond which relates to reclamation of the silt dam may be released under this section so long as provisions for sound future maintenance by the operator or the landowner have been made with the director;

(3) when the operator has completed successfully all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for operator responsibility in Section 19 of the Surface Mining Act. Provided, that no bond shall be fully released until all reclamation requirements of that act are fully met.

D. If the director disapproves the application for release of the bond or portion thereof, the director shall notify the permittee, in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing opportunity for a public hearing.

E. When any application for total or partial bond release is filed with the director, the director shall notify the municipality, if any, in which the surface coal mining operation is located by certified mail at least thirty days prior to the release of all or a portion of the bond.

F. Any person with a valid legal interest which might be adversely affected by release of the bond or the responsible officer or head of any federal, state and local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to such operations shall have the right to file written objections to the proposed release from bond to the director within thirty days after the last publication of the notice pursuant to Subsection A of this section. If written objections are filed and a hearing is requested, the director shall inform all the interested parties of the time and place of the hearing, and hold a public hearing in the locality of the surface coal mining operation proposed for bond release within thirty days of the request for such hearing. The date, time and location of such public hearing shall be advertised by the director in a newspaper of general circulation in the locality for two consecutive weeks, and shall hold a public hearing in the locality of the surface coal mining operation proposed for bond release or at Santa Fe at the option of the objector, within thirty days of the request for such hearing.

G. Without prejudice to the rights of the objectors, the applicant or the responsibilities of the director pursuant to this section, the director may establish an informal conference as provided in Section 17 [69-25A-17 NMSA 1978] of the Surface Mining Act to resolve such written objections.

H. For the purpose of such hearing, the director shall have the authority and is hereby empowered to administer oaths, subpoena witnesses or written or printed materials, compel the attendance of witnesses or production of the materials and take evidence including but not limited to inspections of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing required by the Surface Mining Act shall be made, and a transcript made available on the motion of any party or by order of the director.

History: Laws 1979, ch. 291, § 23.