A. If an informal conference has been held pursuant to Section 69-25A-17 NMSA 1978, the director, after receiving the recommendation of the hearing officer, shall issue and furnish the applicant for a permit and persons who are parties to the administrative proceedings with the written finding of the director, granting or denying the permit in whole or in part and stating the reasons therefor, within sixty days of the informal conference.
B. If there has been no informal conference held pursuant to Section 69-25A-17 NMSA 1978, the director shall notify the applicant for a permit within ninety days of the last publication required by Subsection A of Section 69-25A-17 NMSA 1978, whether the application has been approved or disapproved in whole or in part. Upon good cause shown, the time may be extended an additional ninety days.
C. If the application is approved, the permit shall be issued. If the application is disapproved, specific reasons for the disapproval shall be set forth in the notification. Within thirty days after the applicant is notified of the final decision of the director on the permit application, the applicant or any person, with an interest that is or may be adversely affected, may request a hearing on the reasons for the final determination. The director shall hold a hearing within thirty days of the request and provide notification to all interested parties at the time that the applicant is notified. The hearing shall be of record, adjudicatory in nature, and a person who presided at a conference under Section 69-25A-17 NMSA 1978 shall not preside at the hearing or participate in the decision or in any administrative appeal from the decision. Within thirty days after the hearing, the director shall issue and furnish the applicant, and all persons who participated in the hearing, with the written decision of the director granting or denying the permit in whole or in part and stating the reasons therefor.
D. Where a hearing is requested pursuant to Subsection C of this section, the director may, under such conditions as the director may prescribe, grant such temporary relief as the director deems appropriate pending final determination of the proceeding if:
(1) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;
(2) the person requesting such relief shows that there is a substantial likelihood that the person will prevail on the merits of the final determination of the proceeding; and
(3) the relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources.
E. For the purpose of the hearing, the director may administer oaths, subpoena witnesses or written or printed materials, compel attendance of the witnesses or production of the materials and take evidence, including but not limited to site inspections of the land to be affected and other surface coal mining operations carried on by the applicant in the general vicinity of the proposed operation. 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.
F. Any applicant or any person with an interest that is or may be adversely affected, who has participated in the administrative proceedings as an objector and who is aggrieved by the decision of the director or the director’s failure to act within the time limits specified in the Surface Mining Act has the right to seek judicial review in accordance with Section 69-25A-30 NMSA 1978.
History: Laws 1979, ch. 291, § 18; 2005, ch. 209, § 1.
ANNOTATIONS
The 2005 amendment, effective June 17, 2005, provided in Subsection C that a person who presided at a conference shall not preside at the hearing or participate in the decision or any administrative appeal; and provided in Subsection F that an applicant or interested person has the right to judicial review in accordance with Section 69-25A-30 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 53A Am. Jur. 2d Mines and Minerals § 257.
58 C.J.S. Mines and Minerals § 334 et seq.