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AN ACT

RELATING TO MINING; AMENDING, REPEALING AND ENACTING SECTIONS

OF CHAPTER 69 NMSA 1978 TO PROVIDE FOR MINE SAFETY AND

ENFORCEMENT OF MINE SAFETY LAWS AND RULES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 69-1-6 NMSA 1978 (being Laws 1979,

Chapter 68, Section 3, as amended) is amended to read:

"69-1-6. STATE MINE INSPECTOR DUTIES--STATUS.--

A. The state mine inspector is assigned to the New

Mexico institute of mining and technology.

B. The board of regents of the New Mexico

institute of mining and technology and the mining safety board

may recommend the names of qualified individuals to the

governor for appointment as the state mine inspector.

C. In addition to those duties assigned to the

state mine inspector by the board of regents of the New Mexico

institute of mining and technology, by the mining safety board

and by statute, the state mine inspector shall cooperate with

the director of the mining and minerals division of the

energy, minerals and natural resources department to assist

the director in the performance of the director's duties."

Section 2. Section 69-5-7 NMSA 1978 (being Laws 1933,

Chapter 153, Section 14, as amended) is amended to read:

"69-5-7. DUTIES--STATE MINE INSPECTOR--DIRECTOR OF

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MINING AND MINERALS.--

A. The state mine inspector shall:

(1) develop and maintain mine safety and

health training programs;

(2) upon notification of any explosion or

other catastrophic event at a mine in which the lives of mine

workers are jeopardized or in which fatalities have occurred,

allocate available resources within a twenty-four-hour time

period to assist the mine operator in the rescue of persons

and the subsequent accident investigation;

(3) upon request from any operator, provide

compliance assistance to include on-site audits to any mine or

mine operator within the state to aid in the health and safety

of mine workers and mine operators;

(4) if a mine is found to be unsafe during

an inspection, give written notice that the mine is unsafe to

the owner, operator or manager of the mine with an explanation

for the notice;

(5) support and maintain a uniform system of

mine bell signals and furnish a copy of the signal system to

each underground mine operator within the state. Automated

hoists shall be exempt from compliance with the bell signal

requirements;

(6) implement a program of certifying mine

personnel as provided by law; and

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(7) make a report to the governor on or

before June 1 of each year, which report covers the preceding

calendar year and contains a review of the official acts of

the inspector.

B. The director of the mining and minerals

division of the energy, minerals and natural resources

department shall:

(1) cooperate with the state mine inspector

to assist the state mine inspector in the performance of the

state mine inspector's duties, including providing the state

mine inspector with mine registration and other information

collected by the department;

(2) provide an annual resources report to

the governor that shall include statistics of the number of

persons employed in mining, the production and value thereof;

and

(3) have right of entry to the mines as may

be required to fulfill the director's statutory duties."

Section 3. Section 69-5-9 NMSA 1978 (being Laws 1933,

Chapter 153, Section 15) is amended to read:

"69-5-9. INSPECTIONS--RIGHT OF ENTRY--OPERATOR'S

REPRESENTATIVE.--The state mine inspector is given authority

at all reasonable times to:

A. enter and inspect any mine in the state in such

manner as not to impede or obstruct the workings of the mine;

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and

B. require that the mine owner, operator or

manager at all times furnish means necessary for such entry,

inspection, examination and inquiry."

Section 4. Section 69-5-10 NMSA 1978 (being Laws 1933,

Chapter 153, Section 16) is amended to read:

"69-5-10. COMPLIANCE ASSISTANCE VISIT RECORD--

OPERATOR'S COPY.--The state mine inspector shall make an entry

of record in the state mine inspector's office of each

compliance assistance visit and shall furnish the operator a

copy thereof."

Section 5. Section 69-5-14 NMSA 1978 (being Laws 1933,

Chapter 153, Section 20, as amended) is amended to read:

"69-5-14. ORDERING DANGEROUS CONDITIONS IN MINES

REMOVED OR REMOVAL OF WORKERS FROM DANGER ZONES.--When any

mine or portion of a mine or machine, device, apparatus or

equipment pertaining to a mine, in the judgment of the state

mine inspector, is in so dangerous a condition from any cause

or creates such a hazard as to jeopardize life or health, the

state mine inspector shall at once direct the management or

operator of the mine to remove the dangerous condition or

safeguard the equipment. Should the state mine inspector find

during inspection of the mine a dangerous condition existing

in the mine that might cause loss of life or serious personal

injury to the employees, the state mine inspector has the

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right to require the operator to immediately withdraw all

persons from the dangerous places or from the entire mine. In

the event the operator fails or refuses to immediately comply

with the requirements or instructions of the state mine

inspector, the state mine inspector shall issue an order

closing all or any portion of the mine to regular operations

and notify a representative of the miners and the mine safety

and health administration immediately."

Section 6. Section 69-5-17 NMSA 1978 (being Laws 1933,

Chapter 153, Section 23, as amended by Laws 2006, Chapter 102,

Section 2 and by Laws 2006, Chapter 106, Section 2) is amended

to read:

"69-5-17. FATAL AND SERIOUS MINE ACCIDENTS--

ASSISTANCE--INVESTIGATION--NOTIFICATION--CIVIL PENALTY.--

A. The state mine inspector shall proceed

immediately upon notification to the site of any mine accident

causing the loss of life or requiring activation of a mine

rescue team and shall assist in the rescue of persons within

the mine. The state mine inspector shall participate in the

accident investigation with any other federal, state and local

agency and company representatives.

B. Whenever an accident occurs in or about a mine

or the machinery connected to a mine, the operator of the mine

shall give notice within thirty minutes of ascertaining the

occurrence of the accident to the mine accident emergency

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operations center at the statewide telephone number

established by the state mine inspector stating the

particulars of the accident.

C. Nothing in this section shall be construed to

relieve the operator of the mine from any reporting or

notification requirement under federal law.

D. As used in this section, "accident" means

"accident" as provided in 30 C.F.R. 50.2.

E. The state mine inspector shall impose a civil

penalty of up to one hundred thousand dollars ($100,000) on

the operator of the mine if it is determined that the operator

failed to give immediate notice as required in this section.

The inspector may waive imposition of the civil penalty at any

time if the inspector finds that the failure to give immediate

notice was caused by circumstances outside the control of the

operator.

F. The penalties imposed by the state mine

inspector for violations of this section shall be derived from

criteria-based penalty points. A penalty conversion table

developed by the state mine inspector shall serve as a guide

for determining penalty assessments."

Section 7. A new section of Chapter 69, Article 5 NMSA

1978 is enacted to read:

"ATTORNEY GENERAL.--The attorney general shall appoint a

counsel as needed to support the enforcement of the state mine

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inspector's office and the duties of the state mine inspector

and the bureau of mine safety."

Section 8. Section 69-8-2 NMSA 1978 (being Laws 1961,

Chapter 136, Section 2) is amended to read:

"69-8-2. DEFINITIONS.--As used in the Mining Safety

Act:

A. "accident", pursuant to 30 C.F.R. 50.2, means:

(1) a death of an individual at a mine;

(2) an injury that has a reasonable

potential to cause death to an individual at a mine;

(3) an entrapment of an individual for more

than thirty minutes or that has a reasonable potential to

cause death;

(4) an unplanned inundation of a mine by a

liquid or gas;

(5) an unplanned ignition or explosion of

gas or dust;

(6) an unplanned mine fire in an underground

mine that is not extinguished within ten minutes of discovery

and an unplanned mine fire within a surface mine or surface

area of an underground mine that is not extinguished within

thirty minutes;

(7) an unplanned ignition or explosion of a

blasting agent or an explosive;

(8) an unplanned roof fall at or above the

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anchorage zone in active workings where roof bolts are in use

or an unplanned roof or rib fall in active workings that

impairs ventilation or impedes passage;

(9) a coal or rock outburst that causes

withdrawal of miners or that disrupts regular mining activity

for more than one hour;

(10) an unstable condition at an

impoundment, refuse pile or culm bank that requires emergency

action in order to prevent failure or that causes individuals

to evacuate an area or failure of an impoundment, refuse pile

or culm bank;

(11) damage to hoisting equipment in a shaft

or slope that endangers an individual or that interferes with

use of the equipment for more than thirty minutes; or

(12) an event at a mine that causes death or

bodily injury to an individual not at the mine at the time the

event occurs;

B. "employer" includes any person acting directly

or indirectly in the interest of an employer in relation to an

employee or to a place of employment;

C. "employee" means any person suffered or

permitted to work in a mining occupation or pursuit by an

employer;

D. "mine", pursuant to 30 C.F.R. 50.2, means:

(1) an area of land from which minerals are

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extracted in nonliquid form or, if in liquid form, are

extracted with workers underground;

(2) private ways and roads appurtenant to an

area described in Paragraph (1) of this subsection; and

(3) lands, excavations, underground

passageways, shafts, slopes, tunnels and workings, structures,

facilities, equipment, machines, tools or other property,

including impoundments, retention dams and tailings ponds, on

the surface or underground, used in, to be used in or

resulting from, the work of extracting such minerals from

their natural deposits in nonliquid form, or if in liquid

form, with workers underground, or used in, or to be used in,

the milling of such minerals, or the work of preparing coal or

other minerals, and includes custom coal preparation

facilities;

E. "operator", pursuant to 30 C.F.R. 50.2, means:

(1) any owner, lessee or other person that

operates, controls or supervises a coal mine; or

(2) the person, partnership, association or

corporation, or subsidiary of a corporation, operating a metal

or nonmetal mine and owning the right to do so, including any

agent thereof charged with responsibility for the operation of

such mine;

F. "person" means an individual, partnership,

association, corporation, business trust, receiver, trustee,

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legal representative or successor to any of the foregoing;

G. "place of employment" means any place in or

about which the employee is suffered or permitted to work;

H. "mining occupations or pursuits" includes

mining, smelting and the operation of a mill, ore house or

treatment plant in which ore or rock is processed; and

I. "inspector" means the state mine inspector."

Section 9. Section 69-8-3 NMSA 1978 (being Laws 1961,

Chapter 136, Section 3, as amended) is amended to read:

"69-8-3. MINING SAFETY BOARD.--

A. There is created a "mining safety board",

referred to in Chapter 69, Article 8 NMSA 1978 as the "board",

consisting of thirteen members. The members of the board

shall represent and balance management and non-management

employees at coal, metal-nonmetal and sand and gravel

operations throughout New Mexico. The members of the board

shall be appointed by the governor for terms of six years or

until their successors are appointed and qualified. Vacancies

shall be filled by appointment for the unexpired term by the

governor in the same manner as the original appointments.

Members absent for three or more consecutive meetings shall be

considered inactive. The chair of the board shall ask the

governor's office to appoint a new member to the board if a

current member becomes inactive. The inspector and the

secretary of energy, minerals and natural resources shall be

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ex-officio members of the board but shall have no vote.

B. Voting members of the board shall receive

compensation pursuant to the Per Diem and Mileage Act. The

inspector is authorized and directed to provide the board with

such clerical, technical, legal and other assistance as shall

be necessary to permit the board to perform its duties as

provided in the Mining Safety Act."

Section 10. Section 69-8-4 NMSA 1978 (being Laws 1985,

Chapter 68, Section 3) is amended to read:

"69-8-4. DUTIES OF THE BOARD--RULEMAKING.--

A. The board shall, after public hearing, adopt

rules for the protection of the life and safety of employees

and to carry out the intent of the Mining Safety Act. The

board may appoint a special committee of employers, employees

and experts to assist in the development of proposed rules.

The inspector may make recommendations to the board as

necessary to carry out the intent of the Mining Safety Act.

B. Notice of the subject, time and place of the

hearing, the manner in which interested persons may present

their views and the method by which copies of the proposed

rule may be obtained shall be:

(1) published at least thirty days prior to the

hearing date in a newspaper of general circulation in the

state and in the New Mexico register, if published; and

(2) mailed at least thirty days prior to the

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hearing date to all persons that have made a written request

to the board or the inspector for advance notice of hearings.

C. The board shall allow all interested persons

reasonable opportunity to submit data, views or arguments

orally or in writing. The board may designate a hearing

officer to take evidence in the hearing. Any person that

provides comments shall be given written notice of the action

of the board.

D. All rules and regulations shall be filed in

accordance with the State Rules Act."

Section 11. A new section of the Mining Safety Act is

enacted to read:

"DUTIES OF THE BOARD--APPEAL OF CERTIFICATION ACTIONS BY

INSPECTOR.--

A. A person who is the subject of an action of the

inspector pursuant to Subsection D of Section 69-14-4 NMSA

1978 may file a written petition for review before the board

within twenty days after service of the notice provided in

Subsection E of Section 69-14-4 NMSA 1978. Unless a timely

petition for review is made, the decision of the inspector

shall be final and not subject to judicial review.

B. If a timely petition for review is made, the

board shall consider the petition within ninety days after

receipt of the petition. The board shall notify the

petitioner and the inspector of the date, time and place of

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the review.

C. The board shall review the record compiled before

the inspector and shall allow any party to submit arguments.

Prior to the date set for review, if a party shows to the

satisfaction of the board that there is good reason to allow

additional evidence on an issue being challenged, the board

shall allow additional evidence to be taken. Based on the

review of the evidence and the arguments of the parties, the

board shall sustain, modify or reverse the action of the

inspector.

D. The board shall notify the parties of the action

taken by the board and the reasons for that action. A person

who is adversely affected by a decision of the board pursuant

to this section may appeal to the district court pursuant to

the provisions of Section 39-3-1.1 NMSA 1978."

Section 12. A new section of the Mining Safety Act is

enacted to read:

"STANDARD OF EVALUATION OF VARIANCES--EFFECT OF VARIANCES

GRANTED.--

A. A person affected by a rule adopted under the

Mining Safety Act may petition the inspector for a variance.

B. A variance of a mandatory safety standard may be

granted upon a determination that:

(1) an alternative method of achieving the

result of the standard or rule exists that will at all times

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guarantee no less than the same measure of protection afforded

by the standard or rule; or

(2) application of the standard or rule would

diminish the safety of the affected miners.

C. All variances granted pursuant to this section

shall have only future effect.

D. The inspector shall fully investigate any

proposed variance with the requesting mine operator and the

respective representative of miners, or a reasonable number of

miners that will be affected by the proposed variance. The

proposed variance shall be posted at the mine when submitted

to the inspector to ensure that all miners have the

opportunity to review and make comments to the inspector.

Investigation shall begin within ninety days of receipt of the

proposed petition, and the inspector shall make a final

determination no longer than one hundred eighty days from the

receipt of the proposed petition.

E. A person affected by the final decision of the

inspector may appeal to the board within thirty days of the

inspector's final decision. The appeal shall be in writing

and sent to the board's chair. The board shall review the

appeal within ninety days and may hold a hearing. The board

shall make a final decision regarding the variance request.

F. A person who is adversely affected by a decision

of the board pursuant to this section may appeal to the

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district court pursuant to the provisions of Section 39-3-1.1

NMSA 1978."

Section 13. Section 69-12-7 NMSA 1978 (being Laws 1933,

Chapter 153, Section 34) is amended to read:

"69-12-7. ACCIDENTS--WRITTEN REPORT.--A report in

writing shall be made to the state mine inspector of each

mine accident. The report shall be made within one month of

the date of the accident. Submitting a copy of the report

required under the Federal Mine Safety and Health Act of 1977

to the inspector shall satisfy the requirements of Chapter 69

NMSA 1978."

Section 14. Section 69-14-1 NMSA 1978 (being Laws 1933,

Chapter 153, Section 38, as amended) is amended to read:

"69-14-1. MINE FOREMEN--MINE EXAMINERS--CERTIFICATION BY

STATE MINE INSPECTOR.--The state mine inspector shall certify,

recertify or discipline persons to act as mine foremen and

mine examiners. No mine operator shall employ any person as

underground mine foreman, mine examiner or surface mine

foreman unless that person has been certified by the state

mine inspector for such position."

Section 15. Section 69-14-2 NMSA 1978 (being Laws 1933,

Chapter 153, Section 40, as amended) is amended to read:

"69-14-2. METHODS OF CERTIFICATION--CERTIFICATES FROM

OTHER STATES--PERMITS--EXAMINATIONS.--The state mine inspector

shall certify persons for the positions of mine foreman and

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mine examiner and issue certificates accordingly as follows:

A. the state mine inspector may recognize the

foreman's or mine examiner's certificate issued by any other

state and issue certificates accordingly;

B. the state mine inspector shall hold written

examinations, at times and places to be given out at least

thirty days in advance, to all persons desiring to secure mine

foreman certificates or mine examiner certificates; and

C. the state mine inspector shall require that any

applicant for examination to the position of mine foreman or

mine examiner shall submit a completed application at least

thirty days prior to the examination date and shall meet the

experience requirements of this section. Every person

desiring to secure a mine foreman's certificate and not

already in such position or not holding such certificate from

another state shall first serve as a mine examiner for six

months and shall have at least four years' coal mine

experience to participate in the foreman's examination. A

person who holds a certificate for surface mine foreman who

wishes to take the underground foreman test must have a

minimum of four years' experience in underground mine

workings. A person who holds an underground mine foreman

certificate and who wishes to participate in the surface mine

foreman examination must have at least two years' surface mine

experience."

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Section 16. Section 69-14-3 NMSA 1978 (being Laws 1933,

Chapter 153, Section 41, as amended) is amended to read:

"69-14-3. QUALIFICATIONS FOR CERTAIN POSITIONS.--The

mining safety board may, by rule, enact requirements,

including requirements for applications, examinations and

qualifications, for the certification of any mine personnel

required to be qualified by state or federal law."

Section 17. Section 69-14-4 NMSA 1978 (being Laws 1933,

Chapter 153, Section 42, as amended) is amended to read:

"69-14-4. CERTIFICATION PERIOD--RECERTIFICATION--

DISCIPLINE--APPEAL.--

A. Certification for mine personnel shall be issued

for a period of five years. All mine personnel certified by

the state mine inspector prior to the effective date of this

2007 act shall have their certification period extended five

years. Each certified person has the responsibility to notify

the state mine inspector of any change in address or change in

mine employment within thirty days of the change. Failure to

provide current information may result in suspension of

certification.

B. Certified persons may apply for recertification

within twelve months prior to the end of the certification

period. Every certification shall automatically expire on the

last day of the certification period if the official has not

recertified prior to that date. Recertification will require

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the applicant to submit an application and appropriate

documentation as required by the state mine inspector at least

thirty days prior to the testing date.

C. The state mine inspector may refuse to certify or

recertify or may suspend or revoke any certification held or

applied for under Chapter 69 NMSA 1978 upon grounds that the

applicant or certified person:

(1) gave false or forged evidence to the state

mine inspector to obtain certification;

(2) is grossly negligent or incompetent in

duties as a certified person;

(3) has failed to maintain certification;

(4) has violated or aided or abetted any person

in a violation of the Federal Mine Safety and Health Act of

1977 or the state mine safety laws; or

(5) has been disciplined in another state that

certifies mine personnel.

D. If the state mine inspector contemplates taking

any of the actions in Subsection C of this section for any of

the reasons provided in that subsection, the state mine

inspector shall provide written notice to the applicant or

certified person. The notice shall include a statement that

the state mine inspector has sufficient evidence that, if not

rebutted or explained, will justify the state mine inspector

in taking the contemplated action, that indicates the general

nature of the evidence and that provides the applicant or

person at least twenty days to submit written evidence to

rebut or explain the allegations.

E. If, after the response period ends, the state

mine inspector takes any action of a type specified in

Subsection C of this section, the state mine inspector shall

serve upon the applicant or certified person a written notice

of the action containing a statement that the applicant or

certified person may file a petition for review with the

mining safety board pursuant to the Mining Safety Act."

Section 18. REPEAL.--Sections 69-4-1, 69-4-3 through

69-4-10, 69-5-8, 69-5-11, 69-5-13, 69-5-15, 69-7-2 through

69-7-7, 69-8-5, 69-8-7 through 69-8-10, 69-8-14, 69-12-1,

69-12-2, 69-12-5, 69-12-6, 69-13-1 through 69-13-3, 69-14-5

through 69-14-18, 69-18-14, 69-31-16 and 69-35-18 through

69-35-20 NMSA 1978 (being Laws 1933, Chapter 153, Sections 1

and 3 through 10, Laws 1953, Chapter 82, Section 3, Laws 1933,

Chapter 153, Sections 17, 19 and 21, Laws 1889, Chapter 103

Sections 2 through 5, Laws 1887, Chapter 34, Sections 1 and 2,

Laws 1961, Chapter 136, Sections 5, 7 through 10 and 14, Laws

1933, Chapter 153, Sections 28, 29, 32, 33, 35 through 37 and

43 through 55, Laws 1882, Chapter 57, Section 9 and Laws 1933,

Chapter 153, Sections 101, 245 and 303 through 305, as

amended) are repealed.

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