TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 11 GEOTHERMAL RESOURCES DEVELOPMENT
PART 2 PERMITS
19.11.2.1 ISSUING AGENCY: Energy, Minerals and Natural Resources
Department, Energy Conservation and Management Division.
[19.11.2.1
NMAC - N, 2/27/2018]
19.11.2.2 SCOPE: All persons who engage in the exploration,
development or production of a geothermal resource.
[19.11.2.2
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19.11.2.3 STATUTORY AUTHORITY: Geothermal Resources Development Act, Section 71-9-1
et seq. NMSA 1978 (2016).
[19.11.2.3
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19.11.2.4 DURATION: Permanent.
[19.11.2.4
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19.11.2.5 EFFECTIVE DATE: February 27, 2018, except where a later date
is cited at the end of a section.
[19.11.2.5
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19.11.2.6 OBJECTIVE: The objective of 19.11.2 NMAC is to require
persons to obtain a permit prior to commencing exploration, development and
production of geothermal resources and to establish procedures for application
for and approval or denial of permits.
[19.11.2.6
NMAC - N, 2/27/2018]
19.11.2.7 DEFINITIONS: [RESERVED]
[See 19.11.1.7 NMAC for definitions.]
[19.11.2.7 NMAC – N, 2/27/2018]
19.11.2.8 INFORMATION TO STATE ENGINEER:
A. The division
shall notify the office of state engineer when it receives an application for a
geothermal well permit or geothermal facility permit.
B. When the
applicant proposes to reinject all ground water as soon as practicable into the
same ground water source from which it was diverted, resulting in no new
depletion to the source, the division shall also provide the state engineer all
information available to the division regarding the proposed diversion and
reinjection and shall request the opinion of the state engineer as to whether
existing ground water rights sharing the same ground water source may be
impaired.
C. If the state
engineer determines that the information provided is sufficient to render an
opinion and it is the opinion of the state engineer that any existing ground
water rights may be impaired, the division, upon receipt of the opinion of the
state engineer, shall notify the applicant or permittee who shall submit to the
division by the date specified in the notification a plan of replacement for
any existing ground water rights that are likely to be impaired.
[19.11.2.8
NMAC - N, 2/27/2018]
19.11.2.9 PERMIT REQUIRED: Except as provided in 19.11.1.10 NMAC, no
person shall explore, develop or produce a geothermal resource including
drilling or operating an injection well except pursuant to and in accordance
with the terms and conditions of a permit issued by the division under the Act.
The applicant for a permit or permit
modification, renewal or transfer shall be the person who has the right to
produce the geothermal resource either through ownership, lease, permit or
other right. The permittee is
responsible for the actions of its officers, employees, consultants,
contractors and subcontractors as they relate to the exploration, development
or production of the geothermal resource. Any person who is involved in the exploration,
development or production of a geothermal resource shall comply with the Act, 19.11.1
through 19.11.4 NMAC and the permit.
[19.11.2.9
NMAC - N, 2/27/2018]
19.11.2.10 APPLICATION TO DRILL, MODIFY OR
OPERATE WELLS OR FACILITIES IN A GEOTHERMAL RESOURCE:
A. Application for a permit to drill an
exploratory well or to drill or operate a production or observation well. Any person who proposes to drill or operate an
exploratory, production or observation well shall first apply for a permit by
filing a written application with the division.
The applicant shall submit two paper copies
and one electronic copy of the application. The applicant shall submit the information listed
below in the application:
(1) name
and contact information of the owner or operator of the well and the drilling
contractor and whether the owner or operator is a corporation, partnership,
single proprietorship, association or other business entity and the names of
the applicant’s officers and directors;
(2) name
and contact information of the applicant’s registered agent;
(3) location
of the proposed or existing well (UTM coordinates or latitude-longitude) and a
map showing location and distances to property lines;
(4) estimated
or actual (if existing) top of well-elevation;
(5) name
and contact information of the surface land owner;
(6) signature
of a responsible official or designated agent of the applicant;
(7) name
and contact information of the geothermal resource owner and documentation such
as deeds, leases, permits or other documentation showing applicant has the authority
or right to produce the geothermal resource;
(8) for
production wells, actual (when available) or estimated data regarding the physical
characteristics of the geothermal resource including volume, temperature, permeability,
thermal capacity and water quality of both the geothermal resource waters and
any fresh water resources in the proposed drilling area;
(9) whether
the applicant proposes to reinject all ground water as soon as practicable into
the same ground water source from which it was diverted, resulting in no new
depletion to the source and information regarding the proposed diversion and
reinjection;
(10) a
map and accompanying list showing the names, addresses and locations of
adjacent landowners within one-half mile of the proposed geothermal well or
facility; the location of water wells within one mile of the proposed
geothermal well or facility; the names, addresses and locations of any
geothermal resource owners or lessees currently owning or leasing a geothermal
resource within five miles of the proposed geothermal well or facility; and the
names, addresses and locations of any local, state, federal or tribal
government property within five
miles of the proposed geothermal well or facility;
(11) a
statement of the purpose and estimated or actual (if existing) depth of the
well;
(12) for
production wells, the proposed production rate of geothermal resource waters;
(13) a
description of the geothermal well construction, BOPE and the drilling rig;
(14) a
description of the logging, coring and testing program;
(15) plans
for providing financial assurance prior to permit issuance pursuant to 19.11.2.18
NMAC;
(16) pit
information pursuant to 19.11.4.17 NMAC;
(17) methods
for disposal of geothermal resources, residue of geothermal resources or
nondomestic waste from the exploration, development or production of geothermal
resources pursuant to 19.11.4.20 NMAC;
(18) a
geothermal well plugging and abandonment plan, including a responsible third-party
contractor’s cost estimate, sufficient to plug and abandon the wells in a
manner that will protect life, health, property, natural resources, the
environment and the public welfare, and comply with the requirements contained
in 19.11.4.16 NMAC;
(19) a
statement of whether the applicant or any subsidiary, affiliate or person
controlled by or under common control with the applicant
(a) has
had a federal or state UIC or geothermal drilling or operating permit suspended
or revoked in the five years preceding the date of the application’s submission;
or
(b) has
forfeited a performance bond or similar security deposited in lieu of bond; and
(c) a
brief explanation of the facts involved if any such suspension, revocation or
forfeiture referred to in Subparagraphs (a) and (b) of Paragraph (19) of
Subsection A of 19.11.2.10 NMAC has occurred, including:
(i) the
permit’s identification number and issuance date, and the date and amount of
bond or similar security involved;
(ii) identification
of the authority that suspended or revoked the permit or forfeited the bond or
similar security and the stated reasons for the action;
(iii) the
status of the permit, bond or other security involved;
(iv) the
date, location and type of any administrative or judicial proceedings initiated
concerning the suspension, revocation or forfeiture; and
(v) the
proceeding’s status; and
(20) a
listing of all violation notices the applicant has received relating to any UIC
or geothermal drilling or operation during the three-year period before the
application date; for each violation notice reported include the following
information as applicable:
(a) any
identifying number for the operation including the federal or state permit
number, the violation notice’s issuance date, the name of the person or entity
to whom the violation notice was issued and the name of the issuing regulatory
authority, department or agency;
(b) a
brief description of the violation alleged in the notice;
(c) the date,
location and type of any administrative or judicial proceedings initiated
concerning the violation, including proceedings initiated by any person or
entity to obtain administrative or judicial review of the violation;
(d) the
status of the proceedings and of the violation notice; and
(e) the
actions, if any, taken by any person identified in Paragraph (20) of Subsection
A of 19.11.2.10 NMAC to abate the violation.
B. Application for permit to drill or
operate an injection well. Any
person who proposes to drill or operate an injection well shall first apply for
a permit by filing a written
application with the division. The
applicant shall submit two paper copies and one electronic copy of the
application. The items listed below
along with the items listed in Subsection A of 19.11.2.10 NMAC are required:
(1) a
description of the well construction, or proposed well construction, and the
proposed method for testing the well before the well is used for injection;
(2) the
estimated maximum injection pressure, mass flowrate and temperature;
(3) an
analysis of the proposed injection fluid; and
(4) a
description of the proposed pipelines, metering equipment and safety devices
that will be used to prevent accidental pollution.
C. Application for a geothermal facility with
multiple geothermal wells. Any
person who proposes to drill or operate multiple geothermal wells and operate a
geothermal facility on an applicant’s geothermal lease shall apply for a
multi-well geothermal facility permit. The
applicant shall submit two paper copies and one electronic copy of the
application. The items listed below along
with the items listed in Subsections A and B of 19.11.2.10 NMAC are required:
(1) a
description of surface equipment and site plan, with proposed topography, of
the power generating facility and associated well field with proposed and
existing wells identified; and
(2) a
facility closure plan, including a responsible third-party contractor’s cost
estimate, sufficient to close the facility in a manner that will protect life,
health, property, natural resources, the environment and the public welfare,
and comply with the closure requirements contained in 19.11.4 NMAC.
D. Application to modify or renew a permit. Any permittee who proposes to modify an individual
geothermal well permit or a geothermal facility permit or renew an existing
permit (individual or facility) shall first apply for a permit modification or
permit renewal by filing a written application with the division. The permittee shall file an application to
renew a permit one year prior to the expiration date of the current permit. All applications to modify or renew a permit
shall follow the applicable requirements listed in Subsections A, B or C of
19.11.2.10 NMAC unless the modification is a minor permit modification or is approved
under the permittee’s notification requirements and requests for approval to
division conditions listed in 19.11.4.9 NMAC. A minor permit modification includes:
(1) change
in owner of the geothermal lease or geothermal interest;
(2) change
in well name;
(3) change
in previously proposed location of a well that is within the approved area of a
geothermal well or facility permit;
(4) change
in status of an injection well to another type of well;
(5) changing
the construction of an injection well, including placing a plug in the hole or
well and recovering or altering the casing;
(6) adding
wells to a geothermal facility permit that have been approved previously per Subsections
A or B of 19.11.2.10 NMAC;
(7) creation
of a geothermal facility permit that includes only wells and equipment
permitted previously under 19.11.2 NMAC;
(8) permitting
of equipment that has been permitted or approved prior to the promulgation of
19.11.2 NMAC; the permittee may, upon promulgation of 19.11.2 NMAC, apply to
permit all currently operating and previously approved geothermal wells and
facilities under 19.11.1 through 19.11.4 NMAC pursuant to the minor permit
modification procedures in Subsection E of 19.11.2.10 NMAC; and
(9) for
an injection well permit or for that portion of a geothermal facility permit
that pertains to injection wells, a modification listed under 40 CFR 144.41.
E. Notification of application
for minor permit modification or activity taken pursuant to 19.11.4.9 NMAC.
When requesting approval of a minor
permit modification or prior to taking an action listed in Paragraph (3) of
Subsection A or Paragraphs (3), (6), (8) or (10) of Subsection B of 19.11.4.9
NMAC, the permittee shall provide written notification to the adjacent surface
owners within one-half mile, water rights owners with a well that is within one
mile and any geothermal resource owners or lessees within five miles of the
geothermal well or facility.
F. Application for a
minor permit modification. Any
permittee who proposes a minor permit modification shall submit a written
request, to the division, that fully explains the proposed modification and all
information required to implement the requested change. The permittee may apply for approval of the activity
listed in Paragraph (3) of Subsection D of 19.11.2.10 NMAC up to 30 days after
the action.
G. Pre-application meeting. Any person who proposes to submit a permit
application to the division may request a pre-application meeting with division
staff.
H. Transfer of a permit.
(1) The
permittee shall not transfer a permit without the division’s prior written
approval. If the transferee wants to
change the conditions of the original permit, it shall apply for a new permit
pursuant to 19.11.2.10 NMAC. Unless the
division otherwise orders, public notice or hearing are not required for the
division to approve a transfer request.
If the division denies the transfer request, it shall notify the
permittee and the proposed transferee of the denial by certified mail, return
receipt requested and either the permittee or the proposed transferee may
request a hearing within 10 days after receipt of the notice. Until the division approves the transfer and
the required financial assurance is in place, the division shall not release
the transferor’s financial assurance.
(2) If
the transferee will conduct operations in full compliance with the terms and
conditions of the original permit, the transferee shall provide the division
with the following information:
(a) name and contact
information of the owner or operator of the well or facility and a statement as
to whether the applicant is a corporation, partnership, single proprietorship,
association or other business entity and the names of the transferee’s officers
and directors;
(b) name and contact
information of the transferee’s registered agent;
(c) the signature of
a responsible official or designated agent of the transferee on the transfer
request;
(d) proof that the
transfer complies with the terms of any deed, lease or permit;
(e) a statement that
the transferee will continue to conduct the operations involved in full
compliance with the terms and conditions of the original permit, unless the
transferee applies for a new permit; and
(f) plans for
providing sufficient financial assurance to cover the original permit in its
entirety from inception to completion of plugging and abandonment prior to the
transfer.
(3) Nothing
in 19.11.2 NMAC shall be construed to relieve any person of responsibility or
liability for any act or omission that occurred while that person owned,
controlled or was in possession of the well or facility.
[19.11.2.10
NMAC - N, 2/27/2018]
19.11.2.11 CHANGING, SUPPLEMENTING OR
CORRECTING APPLICATIONS:
A. Prior to the
division’s final decision on an application, the applicant shall have a duty to
promptly supplement and correct
information submitted in the application. The duty to supplement shall include relevant
information thereafter acquired or
otherwise determined to be relevant.
B. The process
provided in 19.11.2.10 NMAC is not intended to limit informal informational
exchanges during the application review period or prior to submission of an
application. The process also does not
prohibit an applicant from withdrawing an application and submitting a new
application.
[19.11.2.11
NMAC - N, 2/27/2018]
19.11.2.12 PERMIT DECISIONS AND APPEALS:
A. The division
shall, in a timely manner after its receipt of an application for a permit, or
modification or renewal of a permit, evaluate such application and determine
whether it is acceptable for review. An
application that is acceptable for review is one that includes the information
19.11.2.10 NMAC requires. If the division deems the application:
(1) acceptable
for review, the division shall send a letter by e-mail and physical mail to the
applicant notifying that applicant that the division will review the
application;
(2) not
acceptable for review, the division shall send a letter by e-mail and physical
mail to the applicant stating what additional
information or points of clarification are necessary to deem the application
acceptable for review; upon receipt of
the additional information or clarification, the division shall promptly review
such information and determine whether
the application is acceptable for review;
(3) acceptable
for review but no permit is required, the division shall send a letter by e-mail
and physical mail to the applicant
informing the applicant of the determination.
B. Upon completion
of the division’s review of the application, the division shall either issue a
draft permit or notice of intent to deny the application. A notice of intent to deny the application is
a type of draft permit and follows the same procedure as a draft permit under 19.11.2
NMAC.
C. For draft permits for injection
wells or facilities that include injection wells, the division shall prepare a
fact sheet that includes a brief description of the type of facility or
activity that is the subject of the draft permit; the type and quantity of
wastes, fluids or pollutants that are proposed to be or are being treated,
stored, disposed of, injected, emitted or discharged; a brief summary of the
basis for the draft permit conditions including references to the
administrative records; reasons why any requested variances or alternatives to
required standards do or do not appear justified; a description of the
procedures for reaching a final decision on the draft permit including the
beginning and ending dates of the comment period and the address where comments
will be received, procedures for requesting a hearing and the nature of that
hearing and any other procedures by which the public may participate in the
final decisions; the name and telephone number of a person to contact for
additional information; and justification for waiver of any application
requirements.
D. If after the
applicant provides public notice as required in 19.11.2.13 NMAC, no requests
for hearing are filed with the division within the 30 day public notice period as
provided by 19.11.3.8 NMAC, or any such requests for hearing are filed by
persons the division determines are not affected persons and the division does
not otherwise schedule a hearing pursuant to 19.11.3.8 NMAC, the division’s draft
permit shall become final and the division, after receipt of acceptable
financial assurance submitted by the applicant pursuant to 19.11.2.18 NMAC,
shall issue the permit.
E. The division
shall grant the permit or deny the permit based
on information contained in the division's administrative record. The administrative record shall consist of the application, any other evidence the
applicant submitted, any technical evidence or substantive written comments any
person other than the division submitted, any other evidence considered by the
division, a statement of matters officially noticed and, if a hearing is held, the evidence submitted at
the hearing. The applicant has the
burden of demonstrating that a permit
or permit modification should be approved. If the division issues a permit, it shall
issue a response to comments. The
response to comments shall specify which provisions, if any, of the draft
permit have been changed in the final permit decision, and the reasons for the
change, and briefly describe and respond to all significant comments on the
draft permit raised during the public comment period or during any hearing. The response to comments shall be available to
the public.
F. A person subject
to a final decision of the division may appeal to the district court pursuant
to the provisions of Section 39-3-1.1 NMSA 1978.
[19.11.2.12
NMAC - N, 2/27/2018]
19.11.2.13 PUBLIC NOTICE FOR PERMIT ACTIONS INVOLVING
A GEOTHERMAL WELL OR FACILITY: Except for Paragraphs (1) and (2) of Subsection
A of 19.11.2.13 NMAC, 19.11.2.13 NMAC does not apply to permit actions pursuant
to Subsection E of 19.11.2.10 NMAC or other approvals pursuant to 19.11.4.9
NMAC.
A. The division
shall:
(1) make
available for public inspection a list of all pending applications for permits
or permit modifications or renewals;
(2) make
available for public inspection the permit application and the division's draft
permit and supporting analysis documentation; this material shall be available at
the division’s office; except those portions of which may be determined as confidential in accordance with 19.11.1.8
NMAC or the Inspection of Public Records Act, Section 14-2-1 et seq. NMSA 1978 (1993, as amended);
(3) subsequent
to the division’s production of a draft permit and supporting documentation, publish
a public notice, on the division’s website, which shall include: the division’s
name and address; the applicant's name
and address, the location and brief description of the well or facility, a scope
of the proposed operation and the division’s preliminary intent to issue the
permit at the end of the public notice period barring any substantive comments
or new information or a permit hearing; the public notice shall identify the location of the permit
application and division’s draft permit and supporting analysis documentation
for public review and describe the
manner in which comments or evidence may be submitted to the division,
including that persons must provide
written comments or evidence to the division before the end of the 30 day public
notice period; and a statement of the procedures for requesting a hearing on
the application pursuant to 19.11.3.8 NMAC;
(4) provide
the public notice under Paragraph (3) of Subsection A of 19.11.2.13 NMAC by
mail, which may include e-mail, to the
applicant;
(5) deliver
written notice by ordinary first class United States mail to federal and state
agencies with jurisdiction over fish and wildlife resources and state and
tribal historic preservation officers;
(6) deliver
written notice by ordinary first class United States mail to the EPA and any
agency which the division knows has issued or is required to issue a Resource
Conservation and Recovery Act permit, an air quality permit, a national
pollutant discharge elimination system permit, 404 permit or sludge management permit
for the same facility or activity;
(7) deliver
written notice by ordinary first class United States mail to any unit of local government
having jurisdiction over the area where the well or facility is to be located
and to any state agency have authority with respect to the construction or
operation of the well or facility;
(8) deliver
written notice by ordinary first class United States mail or e-mail to each
person who has requested in writing to be notified of such permit applications,
modifications or renewals;
(9) deliver
written notice by ordinary first class United States mail or e-mail to persons
on a mailing list developed by the division including those who request in
writing to be on the list, soliciting persons for “area lists” from
participants in past permit proceedings in that area and notifying the public
of the opportunity to be put on the mailing list through periodic publications
in the public press, etc.; and
(10) publishing
notice in a newspaper of general circulation in the county where the geothermal
well or facility is located or is proposed to be located or in a newspaper of
general circulation in the state.
B. The applicant
shall:
(1) upon receipt of the division’s public
notice, provide written notice, by certified mail, return receipt requested, of
the division’s public notice to the adjacent surface owners within one-half
mile, water rights owners with a well that is within one mile and any
geothermal resource owners or lessees within five miles of the geothermal well
or facility;
(2) mail notice by ordinary first class United
States mail or e-mail to all local, state, federal or tribal governmental
agencies that own property within five miles of the geothermal well or facility;
and
(3) provide
the division with proof that the applicant has met the public notice requirements
of Paragraphs (1) and (2) of Subsection B of 19.11.2.13 NMAC prior to the
division scheduling a hearing, if any, pursuant to 19.11.3.8 NMAC or issuing
the permit.
[19.11.2.13
NMAC - N, 2/27/2018]
19.11.2.14 BASIS FOR DENIAL OF PERMIT: The division shall deny an application for a
permit or permit modification or
renewal if the construction or operation of the geothermal well or facility
will not or does not comply with the Act or the rules promulgated pursuant to
the Act.
[19.11.2.14
NMAC - N, 2/27/2018]
19.11.2.15 PERMIT CONDITIONS:
A. The contents of
the application specifically identified by the division shall become terms and conditions of the permit or permit modification.
B. The division
shall, as appropriate, specify conditions upon a permit, including:
(1) placement
of geothermal wells in accordance with the location limitations in 19.11.4.8
NMAC;
(2) financial
assurance requirements in accordance with 19.11.2.18 NMAC;
(3) well-construction
in accordance with 19.11.4.10 NMAC;
(4) blowout
prevention requirements in accordance with 19.11.4.11 NMAC;
(5) operating
limitations in accordance with 19.11.4.12 NMAC;
(6) testing and monitoring requirements
in accordance with 19.11.4.13 NMAC;
(7) recordkeeping and reporting
requirements in accordance with 19.11.4.14 NMAC;
(8) surface
facility requirements in accordance with 19.11.4.15 NMAC;
(9) abandonment
requirements in accordance with 19.11.4.16 NMAC;
(10) pit
design, construction and operating plan and closure remediation plan requirements
in accordance with 19.11.4.17 NMAC;
(11) disposal requirements in accordance
with 19.11.4.20 NMAC; and
(12) other
operational requirements, including additional testing, monitoring,
recordkeeping and reporting or construction requirements deemed necessary to
protect life, health, correlative rights, property, natural resources, the
environment or the public welfare.
C. Any term or
condition imposed by the division on a permit or permit modification is
enforceable to the same extent as a rule.
D. The permit term
for all permits shall not exceed 10 years.
[19.11.2.15
NMAC - N, 2/27/2018]
19.11.2.16 PERMIT CANCELLATION, TERMINATION
AND MODIFICATION:
A. The division
shall automatically cancel any permit for any well that has been plugged and
abandoned or any facility that has been closed in accordance with the
requirements of 19.11.4 NMAC and the permit.
B. The division may
terminate or modify a permit during its term, or deny a permit renewal
application, by following the procedures in 19.11.2.12 NMAC, for the following
causes:
(1) the
permittee’s noncompliance with any condition of the permit or 19.11.4 NMAC;
(2) the permittee’s failure in the
application or during the permit issuance process to disclose fully all
relevant facts or the permittee’s misrepresentation of any relevant facts at
any time;
(3) a determination that the permitted
activity has a reasonable likelihood to endanger life, health, property,
natural resources (including geothermal and fresh water resources), the
environment or the public welfare and can only be regulated to acceptable
levels by permit modification or termination;
(4) a determination that the permitted activity is not
protective of correlative rights of other geothermal resource leaseholders or
owners;
(5) a
determination that hazardous waste as defined in 40 CFR 261.3 is being injected
into an injection well either because the definition has been revised, or
because a previous determination has been changed.
C. The
division may modify a permit for the following causes:
(1) there
are material and substantial alterations or additions to the permitted well,
facility or activity that occurred after permit issuance that justify the
application of permit conditions that are different or absent in the existing
permit;
(2) the
director has received information that was not available at the time of permit
issuance (other than revised regulations or rules, guidance or test methods)
and would have justified the application of different permit conditions at the
time of issuance, including, for geothermal facility permits, any information
indicating that cumulative effects on the environment are unacceptable;
(3) the
standards or regulations or rules on which the permit was based have been
changed by promulgation of new or amended standards or regulations or rules or
by judicial decision after the permit was issued;
(4) the
director determines good cause exists for modification of a compliance schedule
such as an act of God, strike, flood or materials shortage or other events over
which the permittee has little or no control and for which there is no
reasonably available remedy.
D. Interested
persons may request that a permit be modified or terminated. However, the director may only modify or
terminate permits for the reasons specified in Subsection B of 19.11.2.16 NMAC.
If the director decides the request is
not justified, he or she shall send the requestor a brief written response
giving a reason for the decision. Denials
of requests for modification or termination are not subject to public notice,
comment or hearings.
E. If
the director decides to modify a permit, the director shall issue a draft
permit and publish notice pursuant to 19.11.2.12 NMAC and 19.11.2.13 NMAC.
[19.11.2.16
NMAC - N, 2/27/2018]
19.11.2.17 CORRECTIVE ACTION:
A. Applicants for
injection well permits or for geothermal facility permits that include
injection wells shall identify the location of all known wells (applicant’s
wells or wells of other parties), within a two-mile radius of the injection well,
that penetrates the injection zone. For
wells that are improperly sealed, completed or abandoned, the applicant shall
also submit a plan consisting of such steps or modifications as are necessary
to prevent movement of fluid into underground sources of fresh water
(“corrective action”). Where the plan is
adequate, the division shall incorporate it into the permit as a condition. Where the division’s review of an application
indicates that the applicant’s plan is inadequate, the division shall require
the applicant to revise the plan, prescribe a plan for corrective action as a
condition of the permit or deny the application. An applicant may request a hearing, pursuant
to 19.11.3.8 NMAC, regarding the corrective action plan or the denial of the
corrective action plan.
B. No permittee of
a new injection well or for a geothermal facility permit that includes a new
injection well may begin injection until the permittee has taken all required
corrective action. Any permit issued for
or that includes an existing injection well requiring corrective action shall
include a compliance schedule requiring the permittee to complete any
corrective action accepted or prescribed under Subsection A of 19.11.2.17 NMAC as
soon as possible.
C. A permittee
shall take all reasonable steps to minimize or correct any adverse impact on
the environment resulting from non-compliance with the permit.
[19.11.2.17
NMAC - N, 2/27/2018]
19.11.2.18 FINANCIAL ASSURANCE FOR GEOTHERMAL
WELLS AND FACILITIES: Upon
notification by the division that it has approved a new geothermal well or
facility permit, a geothermal well or facility permit modification or a
geothermal well or facility renewal permit but prior to issuing the permit, an
applicant shall submit acceptable financial assurance for the geothermal well
or facility affected by the permit action.
A. The applicant
shall submit acceptable financial assurance in the amount of the plugging and
abandonment cost for each geothermal well being permitted or, if permitting a
geothermal facility, the estimated closure cost of the entire facility,
including the plugging and abandonment costs for all geothermal wells and pits.
The geothermal well’s estimated plugging
and abandonment cost or the geothermal facility’s estimated closure cost shall
be the amount provided in the plugging and abandonment or closure plan the
applicant submitted with its application unless the division determines that
such estimate does not reflect a reasonable and probable well plugging and
abandonment or facility closure cost, in which event, the division shall
determine the estimated well plugging and abandonment or facility closure cost
and shall include such determination in its draft permit. If the applicant disagrees with the division’s
determination of estimated well plugging and abandonment or facility closure
cost, the applicant may request a hearing as provided in 19.11.3.8 NMAC. If the applicant so requests, and no other
person files a request for a hearing regarding the application, the hearing
shall be limited to determination of well plugging and abandonment or facility
estimated closure cost.
B. Terms
of financial assurance. The
financial assurance shall be on division-prescribed forms, payable to the state
of New Mexico and conditioned upon the geothermal well’s or facility’s proper
operation, and proper well plugging and abandonment or facility closure in
compliance with state of New Mexico statutes, division rules and the geothermal
well or facility permit terms. The
permittee shall notify the division of a material change affecting the
financial assurance within 30 days of discovery of such change.
C. Forfeiture
of financial assurance. The
division shall give the permittee and any surety 20 days’ notice and an
opportunity for a hearing prior to forfeiting financial assurance.
D. Forms
of financial assurance. The
division may accept the following forms of financial assurance.
(1) Surety
bonds.
A surety bond shall be executed by the
applicant and by a corporate surety licensed to do business in the state, and
shall be non-cancelable.
(2) Letters
of credit.
A letter of credit shall be issued by a
bank organized or authorized to do commercial banking business in the United
States, shall be irrevocable for a term of not less than 10 years and shall
provide for automatic renewal for successive, like terms upon expiration,
unless the issuer has notified the division in writing of non-renewal at least
90 days before its expiration date. The
letter of credit shall be payable to the state of New Mexico in part or in full
upon receipt from the director or the director’s authorized representative of
demand for payment accompanied by a notice of forfeiture.
(3) Cash
accounts.
An applicant may provide financial
assurance in the form of a federally insured or equivalently protected cash
account or accounts in a financial institution, provided the operator and the
financial institution shall execute as to each such account a collateral
assignment of the account to the division, which shall provide that only the
division may authorize withdrawals from the account. In the event of forfeiture pursuant to
Subsection C of 19.11.2.18 NMAC, the division may, at any time and from time to
time, direct payment of all or part of the balance of such account (excluding
interest accrued on the account) to itself or its designee for the well’s
plugging and abandonment or facility’s closure.
E. Replacement
of financial assurance.
(1) The division may
allow a permittee to replace existing forms of financial assurance with other
forms of financial assurance that provide equivalent coverage.
(2) The division
shall not release existing financial assurance until the permittee has
submitted, and the division has approved, an acceptable replacement.
[19.11.2.18
NMAC - N, 2/27/2018]
HISTORY
of 19.11.2 NMAC: [RESERVED]