TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 15 OIL
AND GAS
PART 30 REMEDIATION
19.15.30.1 ISSUING AGENCY: Energy, Minerals and Natural Resources Department, Oil Conservation Division.
[19.15.30.1 NMAC - N, 12/1/08]
19.15.30.2 SCOPE: 19.15.30 NMAC applies to persons engaged in oil and gas development and production within New Mexico.
[19.15.30.2 NMAC - N, 12/1/08]
19.15.30.3 STATUTORY AUTHORITY: 19.15.30 NMAC is adopted pursuant to the Oil and Gas Act, NMSA 1978, Sections 70-2-6, 70-2-11 and 70-2-12.
[19.15.30.3 NMAC - N, 12/1/08]
19.15.30.4 DURATION: Permanent.
[19.15.30.4 NMAC - N, 12/1/08]
19.15.30.5 EFFECTIVE DATE: December 1, 2008, unless a later date is cited at the end of a section.
[19.15.30.5 NMAC - N, 12/1/08]
19.15.30.6 OBJECTIVE: To abate pollution of subsurface water so that ground water of the state that has a background concentration of 10,000 mg/l or less TDS is either remediated or protected for use as domestic, industrial and agricultural water supply, and to remediate or protect those segments of surface waters that are gaining because of subsurface-water inflow for uses designated in the water quality standards for interstate and intrastate surface waters in New Mexico, 20.6.4 NMAC; and abate surface-water pollution so that surface waters of the state are remediated or protected for designated or attainable uses as defined in the water quality standards for interstate and intrastate surface waters in New Mexico, 20.6.4 NMAC.
[19.15.30.6 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.7 DEFINITIONS: [RESERVED]
[See 19.15.2.7 NMAC for definitions.]
19.15.30.8 PREVENTION AND ABATEMENT OF WATER POLLUTION:
A. If the background concentration of a water contaminant exceeds the standard or requirement of Subsections A, B or C of 19.15.30.9 NMAC, the responsible person shall abate the pollution to the background concentration.
B. The standards and requirements set forth in of Subsections A, B or C of 19.15.30.9 NMAC are not intended as maximum ranges and concentrations for use, and nothing contained in 19.15.30.9 NMAC limits the use of waters containing higher ranges and concentrations.
[19.15.30.8 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.9 ABATEMENT STANDARDS AND REQUIREMENTS:
A. The responsible person shall abate the vadose zone so that water contaminants in the vadose zone will not with reasonable probability contaminate ground water or surface water, in excess of the standards in Subsections B and C of 19.15.30.9 NMAC, through leaching, percolation or other transport mechanisms, or as the water table elevation fluctuates.
B. The responsible person shall abate ground-water pollution at a place of withdrawal for present or reasonably foreseeable future use, where the TDS concentration is 10,000 mg/l or less, to conform to the following standards:
(1) toxic pollutants as defined in 20.6.2.7 NMAC shall not be present; and
(2) the standards of 20.6.2.3103 NMAC shall be met.
C. The responsible person shall abate surface-water pollution to conform to the water quality standards for interstate and intrastate surface waters in New Mexico, 20.6.4 NMAC.
D. The division shall not consider subsurface-water and surface-water abatement complete until eight consecutive quarterly samples, or an alternate lesser number of samples the director approves, from the compliance sampling stations the director approved meet the abatement standards in Subsections A, B and C of 19.15.30.9 NMAC. The division shall consider abatement of water contaminants measured in solid-matrix samples of the vadose zone complete after one-time sampling from compliance stations the director approves.
E. Technical infeasibility.
(1) If a responsible person is unable to meet the abatement standards set forth in Subsections A and B of 19.15.30.9 NMAC using commercially accepted abatement technology pursuant to an approved abatement plan, the responsible person may propose that abatement standards compliance is technically infeasible.
(a) The director may consider technical infeasibility proposals involving the use of experimental abatement technology.
(b) The responsible person may demonstrate technical infeasibility by a statistically valid extrapolation of the decrease in concentrations of a water contaminant over the remainder of a 20 year period, such that projected future reductions during that time would be less than 20 percent of the concentration at the time the responsible person proposes technical infeasibility. A statistically valid decrease cannot be demonstrated by fewer than eight consecutive quarters.
(c) The technical infeasibility proposal shall include a substitute abatement standard for those contaminants that is technically feasible. The responsible person shall meet abatement standards for other water contaminants not demonstrated to be technically infeasible.
(2) The director shall not approve a proposed technical infeasibility demonstration for a water contaminant if its concentration is greater than 200 percent of the abatement standard for the contaminant.
(3) If the director cannot approve any or all portions of a proposed technical infeasibility demonstration because the water contaminant concentration is greater than 300 percent of the abatement standard for each contaminant, the responsible person may further pursue the issue of technical infeasibility by filing a petition with the division seeking approval of alternate abatement standards pursuant to Subsection F of 19.15.30.9 NMAC.
F. Alternative abatement standards.
(1) At any time during or after the stage 2 abatement plan’s submission, the responsible person may file a petition seeking approval of alternative abatement standards for the standards set forth in Subsections A and B of 19.15.30.9 NMAC. The division may approve alternative abatement standards if the petitioner demonstrates that:
(a) either compliance with the abatement standards is not feasible, by the maximum use of technology within the responsible person’s economic capability; or there is no reasonable relationship between the economic and social costs and benefits, including attainment of the standards set forth in 19.15.30.9 NMAC to be obtained;
(b) the proposed alternative abatement standards are technically achievable and cost-benefit justifiable; and
(c) compliance with the proposed alternative abatement standard will not create a present or future hazard to public health or undue damage to property.
(2) The responsible person shall file a written petition with the division’s environmental bureau chief. The petition may include a transport, fate and risk assessment in accordance with accepted methods, and other information as the petitioner deems necessary to support the petition. The petition shall:
(a) state the petitioner's name and address;
(b) state the date of the petition;
(c) describe the facility or activity for which the petitioner seeks the alternate abatement standards;
(d) state the address or description of the property upon which the facility is located;
(e) describe the water body or watercourse the release affected;
(f) identify the abatement standard from which petitioner wishes to vary;
(g) state why the petitioner believes that compliance with 19.15.30 NMAC will impose an unreasonable burden upon the petitioner’s activity;
(h) identify the water contaminant for which the petitioner proposes the alternative standard;
(i) state the alternative standard the petitioner proposes;
(j) identify the three-dimensional body of water pollution for which the petitioner seeks approval; and
(k) state the extent to which the abatement standards set forth in 19.15.30.9 NMAC are now, and will in the future be, violated.
(3) The division’s environmental bureau chief shall review the petition and, within 60 days after receiving the petition, submit a written recommendation to the director to approve, approve subject to conditions or disapprove any or all of the proposed alternative abatement standards. The recommendation shall include the reasons for the division’s environmental bureau chief's recommendation. The division’s environmental bureau chief shall submit a copy of the recommendation to the petitioner by certified mail.
(4) If the division’s environmental bureau chief recommends approval, or approval subject to conditions, of any or all of the proposed alternative abatement standards, the division shall hold a public hearing on those standards. If the division’s environmental bureau chief recommends disapproval of any or all of the proposed alternative abatement standards, the petitioner may submit a request to the director, within 15 days after the recommendation’s receipt, for a public hearing on those standards. If the petitioner does not submit a timely request for hearing, the recommended disapproval shall become a final decision of the director and shall not be subject to review.
(5) If the director grants a public hearing, the division shall conduct the hearing in accordance with division hearing procedures.
(6) Based on the record of the public hearing, the division shall approve, approve subject to condition or disapprove any or all of the proposed alternative abatement standards. The division shall notify the petitioner by certified mail of its decision and the reasons for the decision.
[19.15.30.9 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.10 MODIFICATION OF ABATEMENT STANDARDS: If applicable abatement standards are modified after the division approves the abatement measures, the abatement standards that are in effect at the time that the division approved the abatement measures shall be the abatement standards for the duration of the abatement action, unless the director determines that compliance with those standards may with reasonable probability create a present or future hazard to public health or the environment. In an appeal of the director’s determination that additional actions are necessary, the director shall have the burden of proof.
[19.15.30.10 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.11 ABATEMENT PLAN REQUIRED:
A. Unless otherwise provided by 19.15.30 NMAC responsible persons who are abating, or who are required to abate, water pollution in excess of the standards and requirements set forth in 19.15.30.9 NMAC shall do so pursuant to an abatement plan the director approves. When the director has approved an abatement plan, the responsible person’s actions leading to and including abatement shall be consistent with the abatement plan’s terms and conditions.
B. In the event of a transfer of the ownership, control or possession of a facility for which an abatement plan is required or approved, where the transferor is a responsible person, the transferee also shall be considered a responsible person for the abatement plan’s duration, and may jointly share the responsibility to conduct the actions 19.15.30 NMAC requires with other responsible persons.
(1) The transferor shall notify the transferee in writing at least 30 days prior to the transfer that the division has required or approved an abatement plan for the facility, and shall deliver or send by certified mail to the director a copy of the notification together with a certificate or other proof that the transferee has received the notification.
(2) The transferor and transferee may agree to a designated responsible person who shall assume the responsibility to conduct the actions 19.15.30 NMAC requires. The responsible persons shall notify the director in writing if a designated responsible person is agreed upon.
(3) If the director determines that the designated responsible person has failed to conduct the actions 19.15.30 NMAC requires, the director shall notify all responsible persons of this failure in writing and allow them 30 days, or longer for good cause shown, to conduct the required actions before setting a show cause hearing requiring those responsible persons to appear and show cause why they should not be ordered to comply, a penalty should not be assessed, a civil action should not be commenced in district court or the division should not take other appropriate action.
C. If the source of the water pollution to be abated is a facility that operated under a discharge plan, the director may require the responsible person to submit a financial assurance plan that covers the estimated costs to conduct the actions the abatement plan requires. Such a financial assurance plan shall be consistent with financial assurance requirements the division adopts.
[19.15.30.11 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.12 EXEMPTIONS FROM ABATEMENT PLAN REQUIREMENT:
A. Except as provided in Subsection B of 19.15.30.12 NMAC, 19.15.30.11 NMAC and 19.15.30.13 NMAC do not apply to a person who is abating water pollution:
(1) from an underground storage tank, under the authority of the New Mexico environmental improvement board’s underground storage tank rules, 20.5 NMAC, or in accordance with the Ground Water Protection Act, NMSA 1978, Section 74-6B-1 et seq.;
(2) under the EPA’s authority pursuant to either the Federal Comprehensive Environmental Response, Compensation and Liability Act, and amendments, or RCRA;
(3) pursuant to the New Mexico environmental improvement board’s hazardous waste management rule, 20.4.1 NMAC;
(4) under the authority of the United States nuclear regulatory commission or the United States department of energy pursuant to the Atomic Energy Act;
(5) under the authority of a ground-water discharge plan the director approved, provided that such abatement is consistent with the requirements and provisions of 19.15.30.8 NMAC, 19.15.30.9 NMAC, Subsections C and D of 19.15.30.13 NMAC, 19.15.30.14 NMAC and 19.15.30.19 NMAC;
(6) under the authority of a letter of understanding, settlement agreement or administrative order on consent or other agreement signed by the director or director’s designee prior to March 15, 1997, provided that abatement is being performed in compliance with the terms of the letter of understanding, settlement agreement or administrative order or other agreement on consent; and
(7) on an emergency basis, or while abatement plan approval is pending, or in a manner that will likely result in compliance with the standards and requirements set forth in 19.15.30.9 NMAC within one year after notice is required to be given pursuant to 19.15.29.9 NMAC provided that the division does not object to the abatement action.
B. If the director determines that abatement of water pollution subject to Subsection A of 19.15.30.12 NMAC will not met the standards of Subsections B and C of 19.15.30.9 NMAC, or that additional action is necessary to protect health, welfare, environment or property, the director may notify a responsible person, by certified mail, to submit an abatement plan pursuant to 19.15.30.11 NMAC and Subsection A of 19.15.30.14 NMAC. The notification shall state the reasons for the director’s determination. In an appeal of the director’s determination under Subsection B of 19.15.30.12 NMAC, the director shall have the burden of proof.
[19.15.30.12 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.13 ABATEMENT PLAN PROPOSAL:
A. Except as provided for in 19.15.30.12 NMAC a responsible person shall, within 60 days of receipt of the director’s written notice that the division requires an abatement plan, submit an abatement plan proposal to the director for approval. The responsible person may submit stage 1 and stage 2 abatement plan proposals together. For good cause shown, the director may allow for a total of 120 days to prepare and submit the abatement plan proposal.
B. Voluntary abatement.
(1) A person wishing to abate water pollution in excess of the standards and requirements set forth in 19.15.30.9 NMAC may submit a stage 1 abatement plan proposal to the director for approval. Following the director’s approval of a final site investigation report prepared pursuant to stage 1 of an abatement plan, a person may submit a stage 2 abatement plan proposal to the director for approval.
(2) Following approval of a stage 1 or stage 2 abatement plan proposal under Paragraph (1) of Subsection B of 19.15.30.13 NMAC the person submitting the approved plan shall be a responsible person under 19.15.30 NMAC for the purpose of performing the approved stage 1 or stage 2 abatement plan. Nothing in 19.15.30 NMAC precludes the director from applying 19.15.29.11 NMAC to a responsible person if applicable.
C. Stage 1 abatement plan. The stage 1 of the abatement plan’s purpose is to design and conduct a site investigation that adequately defines site conditions, and provide the data necessary to select and design an effective abatement option. Stage 1 of the abatement plan may include the following information depending on the media affected, and as needed to select and implement an expeditious abatement option:
(1) descriptions of the site, including a site map, and of site history including the nature of the release that caused the water pollution, and a summary of previous investigations;
(2) site investigation work plan that defines:
(a) site geology and hydrogeology; the vertical and horizontal extent and magnitude of vadose-zone and ground-water contamination; subsurface hydraulic conductivity; transmissivity, storativity and rate and direction of contaminant migration; inventory of water wells inside and within one mile from the perimeter of the three-dimensional body where the standards set forth in Subsection C of 19.15.30.9 NMAC are exceeded; and location and number of wells the pollution actually or potentially affects; and
(b) surface water hydrology, seasonal stream flow characteristics, ground water/surface water relationships, the vertical and horizontal extent and magnitude of contamination and impacts to surface water and stream sediments; the magnitude of contamination and impacts on surface water may be, in part, defined by conducting a biological assessment of fish, benthic macro invertebrates and other wildlife populations; seasonal variations should be accounted for when conducting these assessments;
(3) monitoring program, including sampling stations and frequencies, for the abatement plan’s duration that may be modified, after the director’s approval, as the responsible person creates additional sampling stations;
(4) quality assurance plan, consistent with the sampling and analytical techniques listed in Subsection B of 20.6.2.3107 NMAC and with 20.6.4.14 NMAC of the water quality standards for interstate and intrastate surface waters in New Mexico, for all work to be conducted pursuant to the abatement plan;
(5) a schedule for stage 1 abatement plan activities, including the submission of summary quarterly progress reports, and the submission, for the director’s approval, of a detailed final site investigation report; and
(6) additional information that may be required to design and perform an adequate site investigation.
D. Stage 2 abatement plan.
(1) A responsible person shall submit a stage 2 abatement plan proposal to the director for approval within 60 days, or up to 120 days for good cause shown, after the director’s approval of the final site investigation report prepared pursuant to stage 1 of the abatement plan. The responsible person may submit a stage 1 and 2 abatement plan proposal together. Stage 2 of the abatement plan’s purpose is to select and design, if necessary, an abatement option that, when implemented, results in attainment of the abatement standards and requirements set forth in 19.15.30.9 NMAC, including post-closure maintenance activities.
(2) Stage 2 of the abatement plan should include, at a minimum, the following information:
(a) a brief description of the current situation at the site;
(b) development and assessment of abatement options;
(c) a description, justification and design, if necessary, of the preferred abatement option;
(d) modification, if necessary, of the monitoring program the director approved pursuant to stage 1 of the abatement plan, including the designation of pre- and post-abatement-completion sampling stations and sampling frequencies to be used to demonstrate compliance with the standards and requirements set forth in 19.15.30.9 NMAC;
(e) site maintenance activities, if needed, the responsible person proposes to perform after abatement activities terminate;
(f) a schedule for the duration of abatement activities, including the submission of summary quarterly progress reports;
(g) a public notification proposal designed to satisfy the requirements of Subsections B and C of 19.15.30.15 NMAC; and
(h) additional information that may be reasonably required to select, describe, justify and design an effective abatement option.
[19.15.30.13 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.14 OTHER REQUIREMENTS:
A. A responsible person shall allow the director’s authorized representative upon presentation of proper credentials and with reasonable prior notice to:
(1) enter the facility at reasonable times;
(2) inspect and copy records an abatement plan requires;
(3) inspect treatment works, monitoring and analytical equipment;
(4) sample wastes, ground water, surface water, stream sediment, plants, animals or vadose-zone material including vadose-zone vapor;
(5) use monitoring systems and wells under the responsible person’s control in order to collect samples of media listed in Paragraph (4) of Subsection A of 19.15.30.14 NMAC; and
(6) gain access to off-site property the responsible person does not own or control, but is accessible to the responsible person through a third-party access agreement, provided that the agreement allows it.
B. A responsible person shall provide the director, or director’s representative, with at least four working days advance notice of sampling to be performed pursuant to an abatement plan, or a well plugging, abandonment or destruction at a facility where the division has required an abatement plan.
C. A responsible person wishing to plug, abandon or destroy a monitoring or water supply well within the perimeter of the three-dimensional body where the standards set forth in Subsection B of 19.15.30.9 NMAC are exceeded, at a facility where the division has required an abatement plan, shall propose such action by certified mail to the director for approval, unless the state engineer’s approval is required. The responsible person shall design the proposed action to prevent water pollution that could result from water contaminants migrating through the well or bore hole. The proposed action shall not take place without the director’s written approval, unless the responsible person does not receive written approval or disapproval within 30 days after the date the director receives the proposal.
[19.15.30.14 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.15 PUBLIC NOTICE AND PARTICIPATION:
A. Prior to public notice, the applicant shall give written notice, as approved by the division, of stage 1 and stage 2 abatement plans to the following persons:
(1) surface owners of record within one mile of the perimeter of the geographic area where the standards and requirements set forth in 19.15.30.9 NMAC are exceeded;
(2) the county commission where the geographic area where the standards and requirements set forth in 19.15.30.9 NMAC are exceeded is located;
(3) the appropriate city officials if the geographic area where the standards and requirements set forth in 19.15.30.9 NMAC are exceeded is located or is partially located within city limits or within one mile of the city limits;
(4) those persons, the director identifies, who have requested notification, who shall be notified by mail;
(5) the New Mexico trustee for natural resources, and other local, state or federal governmental agencies affected, as the director identifies, which shall be notified by certified mail;
(6) the governor or president of a tribe, pueblo or nation if the geographic area where the standards and requirements set forth in 19.15.30.9 NMAC are exceeded is located or is partially located within tribal boundaries or within one mile of the tribal boundaries, who shall be notified by certified mail;
(7) the director may extend the distance requirements for notice if the director determines the proposed abatement plan has the potential to adversely impact public health or the environment at a distance greater than one mile. The director may require additional notice as needed. The applicant shall furnish a copy and proof of the notice to the division.
B. Within 15 days after the division determines that a stage 1 abatement plan or a stage 2 abatement plan is administratively complete, the responsible person shall issue public notice in a division-approved form in a newspaper of general circulation in the county in which the release occurred, and in a newspaper of general circulation in the state. For the purposes of Subsection B of 19.15.30.15 NMAC, an administratively complete stage 1 abatement plan is a document that satisfies the requirements of Subsection C of 19.15.30.13 NMAC and an administratively complete stage 2 abatement plan is a document that satisfies the requirements of Paragraph (2) of Subsection D of 19.15.30.13 NMAC. The public notice shall include, as approved in advance by the director:
(1) the responsible person’s name and address;
(2) the location of the proposed abatement;
(3) a brief description of the source, extent and estimated volume of release; whether the release occurred into the vadose zone, ground water or surface water; and a description of the proposed stage 1 or stage 2 abatement plan;
(4) a brief description of the procedures the director followed in making a final determination;
(5) a statement that the public may view a copy of the abatement plan at the division’s Santa Fe office or at the division’s district office for the area in which the release occurred, and a statement describing how the public can access the abatement plan electronically from a division-maintained site if such access is available;
(6) a statement that the division will accept the following comments and requests for consideration if the director receives them within 30 days after the date of publication of the public notice:
(a) written comments on the abatement plan; and
(b) for a stage 2 abatement plan, written requests for a public hearing that include reasons why a hearing should be held; and
(7) an address and phone number at which interested persons may obtain further information.
C. A person seeking to comment on a stage 1 abatement plan, or to comment or request a public hearing on a stage 2 abatement plan, shall file written comments or hearing requests with the division within 30 days after the date of public notice, or within 30 days after the director receives a proposed significant modification of a stage 2 abatement plan. Requests for a public hearing shall set forth the reasons why a hearing should be held. The division shall hold a public hearing if the director determines that there is significant public interest or that the request has technical merit.
D. The division shall distribute notice of an abatement plan’s filing with the next division and commission hearing docket following the plan’s receipt.
[19.15.30.15 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.16 DIRECTOR APPROVAL OR NOTICE OF DEFICIENCY OF SUBMITTALS:
A. The director shall, within 60 days after receiving an administratively complete stage 1 abatement plan, a site investigation report, a technical infeasibility demonstration or an abatement completion report approve the document, or notify the responsible person of the document’s deficiency, based upon the information available.
B. If the division does not hold a public hearing pursuant to Subsection C of 19.15.30.15 NMAC then the director shall, within 90 days after receiving a stage 2 abatement plan proposal, approve the plan, or notify the responsible person of the plan’s deficiency, based upon the information available.
C. If the division holds a public hearing pursuant to Subsection C of 19.15.30.15 NMAC then the director shall, within 60 days after receiving the required information, approve stage 2 of the abatement plan proposal, or notify the responsible person of the plan’s deficiency, based upon the information contained in the plan and the information submitted at the hearing.
D. If the director notifies a responsible person of a deficiency in a site investigation report, or in a stage 1 or stage 2 abatement plan proposal, the responsible person shall submit a modified document to cure the deficiencies the director specifies within 30 days after receiving the notice of deficiency. The responsible person is in violation of 19.15.30 NMAC if the responsible person fails to submit a modified document within the required time, or if the responsible person does not in the modified document make a good faith effort to cure the deficiencies the director specified.
E. Provided that the responsible person meets the other requirements of 19.15.30 NMAC and provided further that stage 2 of the abatement plan, if implemented, shall result in the standards and requirements set forth in 19.15.30.9 NMAC being met within a schedule that is reasonable given the site’s particular circumstances, the director shall approve the plan.
[19.15.30.16 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.17 INVESTIGATION AND ABATEMENT: A responsible person who receives the division’s approval for stage 1 or stage 2 of an abatement plan shall conduct investigation, abatement, monitoring and reporting activities in compliance with 19.15.30 NMAC and according to the terms and schedules contained in the approved abatement plans.
[19.15.30.17 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.18 ABATEMENT PLAN MODIFICATION:
A. The division may modify an approved abatement plan at the responsible person’s written request in accordance with 19.15.30 NMAC with the director’s written approval.
B. If data the responsible person submitted pursuant to monitoring requirements specified in the approved abatement plan or other information available to the director indicates that the abatement action is ineffective, or is creating unreasonable injury to or interference with health, welfare, environment or property, the director may require a responsible person to modify an abatement plan within the shortest reasonable time so as to effectively abate water pollution that exceeds the standards and requirements set forth in 19.15.30.9 NMAC, and to abate and prevent unreasonable injury to or interference with health, welfare, environment or property.
[19.15.30.18 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.19 COMPLETION AND TERMINATION:
A. The division shall consider abatement complete when the responsible person meets the standards and requirements set forth in 19.15.30.9 NMAC. At that time, the responsible person shall submit an abatement completion report, documenting compliance with the standards and requirements set forth in 19.15.30.9 NMAC, to the director for approval. The abatement completion report also shall propose changes to long-term monitoring and site maintenance activities, if needed, to be performed after the abatement plan’s termination.
B. Provided that the responsible person meets the other requirements of 19.15.30 NMAC and provided further that the responsible person has met the standards and requirements set forth in 19.15.30.9 NMAC, the director shall approve the abatement completion report. When the director approves the abatement completion report, the director shall also notify the responsible person in writing that the abatement plan is terminated.
[19.15.30.19 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.20 DISPUTE RESOLUTION: In the event of a technical dispute regarding the requirements of 19.15.29 NMAC, 19.15.30.9 NMAC, 19.15.30.12 NMAC, 19.15.30.13 NMAC, 19.15.30.18 NMAC or 19.15.30.19 NMAC, including notices of deficiency, the responsible person may notify the director by certified mail that a dispute has arisen, and the responsible person desires to invoke the dispute resolution provisions of 19.15.30.20 NMAC provided that the responsible person shall send the notification within 30 days after the responsible person receives the director’s decision that causes the dispute. Upon the notification, the deadlines affected by the technical dispute shall be extended for a 30 day negotiation period, or for a maximum of 60 days if approved by the director for good cause shown. During this negotiation period, the director or the director’s designee and the responsible person shall meet at least once. A mutually agreed upon third part may facilitate the meeting, but the third party shall assume no power or authority granted or delegated to the director by the Oil and Gas Act or by the division or commission. If the dispute remains unresolved after the negotiation period, the director’s decision shall be final.
[19.15.30.20 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
19.15.30.21 APPEALS FROM DIRECTOR’S AND DIVISION’S DECISIONS:
A. If the director
(1) determines that an abatement plan is required pursuant to 19.15.29.11 NMAC;
(2) approves or provides notice of deficiency of a proposed abatement plan, technical infeasibility demonstration or abatement completion report; or
(3) modifies or terminates an approved abatement plan
the director shall provide written notice of the action by certified mail to the responsible person and other persons who participated in the action.
B. A person who participated in the action before the director and that the action listed in Subsection A of 19.15.30.21 NMAC adversely affects may file a petition requesting a hearing before a division examiner.
C. The person shall make the petition in writing and file it with the division within 30 days after receiving notice of the director’s action. The petition shall specify the portions of the action to which the petitioner objects, certify that the person has mailed or hand-delivered a copy of the petition to the director and to the applicant or permittee if the petitioner is not the applicant or permittee and have attached a copy of the action for which the person seeks review. Unless a person makes a timely petition for hearing, the director’s action is final.
D. The hearing before the division shall be conducted in the same manner as other division hearings.
E. The petitioner shall pay the cost of the court reporter for the hearing.
F. A party adversely affected by a division order pursuant to a hearing held by a division examiner, shall have a right to have the matter heard de novo before the commission.
G. The appeal provisions do not relieve the owner, operator or responsible person of their obligations to comply with federal or state laws including regulations or rules.
[19.15.30.21 NMAC - Rp, 19.15.1.19 NMAC, 12/1/08]
HISTORY of 19.15.30 NMAC:
History of Repealed
Material: 19.15.1 NMAC, General
Provisions and Definitions (filed 04/27/2001) repealed 12/1/08.
NMAC History:
That applicable portion of 19.15.1 NMAC, General Provisions
and Definitions (Section 19) (filed 04/27/2001) was replaced by 19.15.30 NMAC,
Remediation, effective 12/1/08.