N.M. Admin. Code § 19.8.20.2070 - SUBSIDENCE CONTROL: REBUTTAL PRESUMPTION OF CAUSATION FOR DAMAGE FROM SUBSIDENCE

A. If damage to any non-commercial building or occupied residential dwelling or associated structure occurs as a result of earth movement within an area determined by projecting a specified angle of draw from the outermost boundary of any underground mine workings to the surface of the land, a rebuttal presumption exists that the permittee caused the damage. The presumption will normally apply to a 30 degree angle of draw. A state regulatory authority may amend its program to apply the presumption to a different angle of draw if the regulatory authority shows in writing that the angle has a more reasonable basis than the 30 degree angle of draw, based on geotechnical analysis of the factors affecting potential surface impacts of underground coal mining operations.

B. A permittee or permit applicant may request that the presumption apply to a different angle of draw. The director may approve a request to vary from the 30-degree angle of draw based on a site-specific analysis submitted by an applicant. To establish a site-specific angle of draw, an applicant must demonstrate and the director must determine in writing that the proposed angle of draw has a more reasonable basis than the standard in Subsection A of 19.8.20.2070 NMAC, based on a site-specific geotechnical analysis of the potential surface impacts of the mining operation.

C. If the permittee was denied access to the land or property for the purpose of conducting the pre-subsidence survey in accordance with Subsection A of 19.8.9.918 NMAC, no rebuttal presumption will exist.

D. The presumption will be rebutted if, for example, the evidence establishes that:

(1) the damage predated the mining in question;

(2) the damage was proximately caused by some other factor or factors and was not proximately caused by subsidence; or,

(3) the damage occurred outside the surface area within which subsidence was actually caused by the mining in question.

E. In any determination whether damage to protected structures was caused by subsidence from underground mining, all relevant and reasonably available information will be considered by the regulatory authority.

Notes

N.M. Admin. Code § 19.8.20.2070

11-29-97; N, 12-15-99; 19.8.20.2070 NMAC - Rn, 19 NMAC 8.2.20.2070, 9-29-2000