A. A permittee issued a notice or order by the director pursuant to the provisions of Section 69-25A-25 NMSA 1978, or any person having an interest that is or may be adversely affected by the notice or order or by any modification, vacation or termination of 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 the application, the director shall cause such investigation to be made as the director deems appropriate. The investigation shall provide an opportunity for a public hearing, at the request of the permittee or the person having an interest that is or may be adversely affected, to enable the permittee or the person to present information relating to the issuance and continuance of the notice or order or the modification, vacation or termination of the notice or order. 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 to the hearing. Any hearing shall be of record and adjudicatory in nature in accordance with the commission's rules.

C. Upon receiving the report of the investigation, the director shall make findings of fact and shall issue a written decision, incorporating an order vacating, affirming, modifying or terminating the notice or order or the modification, vacation or termination of the notice or order complained of and incorporate the director's findings in the decision. Where the application for review concerns an order for cessation of surface coal mining and reclamation operations issued pursuant to the provisions of Section 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 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 69-25A-25 NMSA 1978, together with a detailed statement giving reasons for granting the relief. The director shall issue an order or decision granting or denying the relief expeditiously. If the applicant requests relief from an order for cessation of coal mining and reclamation operations issued pursuant to Section 69-25A-25 NMSA 1978, the order or decision on the request shall be issued within five days of its receipt. The director may grant the relief, under such conditions as the director 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 the applicant; and

(3) 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 69-25A-25 NMSA 1978, the director shall hold a public hearing after giving written notice of the time, place and date of the hearing. Any hearing shall be of record and adjudicatory in nature in accordance with the commission's rules. 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 for the decision, 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 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 court pursuant to Section 69-25A-30 NMSA 1978 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 to have been reasonably incurred by the person for or in connection with the person's participation in the proceedings, including any judicial review of agency actions, may be assessed against either party as the director or the court deems proper.

History: Laws 1979, ch. 291, § 29; 2005, ch. 209, § 2.

The 2005 amendment, effective June 17, 2005, changed "regulations" to "rules" in Subsections B and E; provided in Subsection E that any order shall be appealable directly to the court pursuant to Section 69-25A-30 NMSA 1978; provided in Subsection F that the director shall determine the amount of costs and expenses that will be assessed, deleted the former provision in Subsection F that no assessment shall be imposed on the director or commission; and deleted former Subsection G which related to the appeals to the commission.