0001| HOUSE BILL 1095
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| GARY K. KING
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO MINING; AMENDING SECTIONS OF THE NEW MEXICO MINING
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0012| ACT TO CHANGE THE MEMBERSHIP OF THE MINING COMMISSION, TO AMEND
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0013| THE NUMBER OF REQUIRED INSPECTIONS, TO ALLOW FOR A CHANGE OF
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0014| VENUE FOR CITIZEN SUITS AND TO INCREASE PUBLIC NOTICE AND
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0015| OPPORTUNITY FOR HEARINGS REGARDING PERMITS.
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0016|
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0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018| Section 1. Section 69-36-6 NMSA 1978 (being Laws 1993,
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0019| Chapter 315, Section 6) is amended to read:
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0020| "69-36-6. MINING COMMISSION--CREATED--MEMBERS.--
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0021| A. The "mining commission" is created. The
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0022| commission shall consist of seven voting members, including:
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0023| (1) the director of the bureau of mines and
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0024| mineral resources of the New Mexico institute of mining and
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0025| technology or [an academic from a mining-related field to be
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0001| appointed for a four-year term by the governor with the advice
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0002| and consent of the senate] his designee;
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0003| (2) the secretary of environment or his
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0004| designee;
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0005| (3) the state engineer or his designee;
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0006| (4) the commissioner of public lands or his
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0007| designee;
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0008| (5) the director of the department of game and
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0009| fish or his designee; and
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0010| (6) two members of the public and an alternate
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0011| for each, all to be appointed by the governor with the advice
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0012| and consent of the senate. The public members shall be chosen
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0013| to represent and to balance environmental and mining interests
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0014| while minimizing conflicts of interest. No more than one of
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0015| the public members and one of the alternates appointed may
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0016| belong to the same political party. When the initial
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0017| appointments are made, one of the public members and his
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0018| alternate will be designated to serve for two-year terms, after
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0019| which all public members shall serve for four years. An
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0020| alternate member may vote only in the absence of the public
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0021| member for whom he is the alternate.
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0022| B. The chairman of the soil and water conservation
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0023| commission and the director of the agricultural experiment
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0024| station of New Mexico state university or their designees shall
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0025| be nonvoting [ex-officio] members [to] of the commission.
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0001| C. The commission shall elect a chairman and other
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0002| necessary officers and keep records of its proceedings.
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0003| D. The commission shall convene upon the call of
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0004| the chairman or a majority of its members.
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0005| E. A majority of the voting members of the
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0006| commission shall be a quorum for the transaction of business.
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0007| However, no action of the commission shall be valid unless
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0008| concurred upon by at least four of the members present.
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0009| F. No member of the commission, with the exception
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0010| of one of the public members and his alternate, shall receive,
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0011| or shall have received during the previous two years, more than
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0012| ten percent of his income directly or indirectly from permit
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0013| holders or applicants for permits. Each member of the
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0014| commission shall, upon acceptance of his appointment and prior
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0015| to the performance of any of his duties, file a statement of
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0016| disclosure with the secretary of state stating:
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0017| (1) the amount of money or other valuable
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0018| consideration received, whether provided directly or
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0019| indirectly, from persons subject to or who appear before the
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0020| commission;
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0021| (2) the identity of the source of money or
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0022| other valuable consideration; and
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0023| (3) whether the money or other valuable
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0024| consideration was in excess of ten percent of his gross
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0025| personal income in either of the preceding two years.
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0001| G. No commissioner with any financial interest
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0002| affected or potentially affected by a permit action may
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0003| participate in proceedings related to that permit action."
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0004| Section 2. Section 69-36-7 NMSA 1978 (being Laws 1993,
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0005| Chapter 315, Section 7) is amended to read:
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0006| "69-36-7. COMMISSION--DUTIES.--The commission shall:
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0007| A. [within one year of the effective date of the
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0008| New Mexico Mining Act] before June 18, 1994, adopt and file
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0009| reasonable regulations [consistent with the purposes and
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0010| intent of the New Mexico Mining Act] necessary to implement
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0011| [that] the provisions of the New Mexico Mining Act,
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0012| including regulations that:
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0013| (1) consider the economic and environmental
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0014| effects of their implementation;
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0015| (2) require permitting of all new and existing
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0016| mining operations and exploration; and
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0017| (3) require annual reporting of production
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0018| information to the commission, which shall be kept confidential
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0019| if otherwise required by law;
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0020| B. adopt regulations for new mining operations that
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0021| allow the director to select a qualified expert who may:
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0022| (1) review and comment to the director on the
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0023| adequacy of baseline data gathered prior to submission of the
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0024| permit application for use in the permit application process;
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0025| (2) recommend to the director additional
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0001| baseline data that may be necessary in the review of the
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0002| proposed mining activity;
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0003| (3) recommend to the director methodology
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0004| guidelines to be followed in the collection of all baseline
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0005| data; and
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0006| (4) review and comment on the permit
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0007| application;
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0008| C. adopt regulations that require and provide for
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0009| the issuance and renewal of permits for new and existing mining
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0010| operations and exploration and that establish schedules to
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0011| bring existing mining operations into compliance with the
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0012| requirements of the New Mexico Mining Act; provided the term of
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0013| a permit for a new mining operation shall not exceed twenty
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0014| years and the term of renewals of permits for new mining
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0015| operations shall not exceed ten years;
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0016| D. adopt regulations that provide for permit
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0017| modifications. The commission shall establish criteria to
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0018| determine which permit modifications may have significant
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0019| environmental impact. Modifications that the director
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0020| determines will have significant environmental impact shall
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0021| require public notice and an opportunity for public hearing
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0022| pursuant to Subsection K of this section. A permit
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0023| modification to the permit for an existing mining operation
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0024| shall be obtained for each new discrete processing, leaching,
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0025| excavation, storage or stockpile unit located within the permit
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0001| area of an existing mining operation and not identified in the
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0002| permit of an existing mining operation and for each expansion
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0003| of such a unit identified in the permit for an existing mining
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0004| operation that exceeds the design limits specified in the
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0005| permit. The regulations shall require that permit
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0006| modifications for such units be approved if the director
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0007| determines that the unit will:
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0008| (1) comply with the regulations regarding
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0009| permit modifications;
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0010| (2) incorporate the requirements of Paragraphs
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0011| (1), (2), (4), (5) and (6) of Subsection H of this section; and
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0012| (3) be sited and constructed in a manner that
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0013| facilitates, to the maximum extent practicable, contemporaneous
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0014| reclamation consistent with the closeout plan;
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0015| E. adopt regulations that require new and existing
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0016| mining operations to obtain and maintain permits for standby
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0017| status. A permit for standby status shall be issued for a
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0018| maximum term of five years; provided that upon application the
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0019| director may renew a permit for standby status for no more than
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0020| three additional five-year terms. The regulations shall
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0021| require that before a permit for standby status is issued or
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0022| renewed an owner or operator shall:
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0023| (1) identify the projected term of standby
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0024| status for each unit of the new or existing mining operation;
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0025| (2) take measures that reduce, to the extent
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0001| practicable, the formation of acid and other toxic drainage to
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0002| prevent releases that cause federal or state environmental
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0003| standards to be exceeded;
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0004| (3) meet applicable federal and state
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0005| environmental standards and regulations during the period of
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0006| standby status;
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0007| (4) stabilize waste and storage units, leach
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0008| piles, impoundments and pits during the term of standby status;
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0009| (5) comply with applicable requirements of the
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0010| New Mexico Mining Act and the regulations adopted pursuant to
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0011| that act; and
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0012| (6) provide an analysis of the economic
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0013| viability of each unit proposed for standby status;
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0014| F. establish by regulation closeout plan
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0015| requirements for existing mining operations that incorporate
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0016| site-specific characteristics, including consideration of
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0017| disturbances from previous mining operations, and that take
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0018| into account the mining method utilized;
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0019| G. establish by regulation a procedure for the
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0020| issuance of a permit for an existing mining operation and for
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0021| modifications of that permit to incorporate approved closeout
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0022| plans or portions of closeout plans and financial assurance
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0023| requirements for performance of the closeout plans. The permit
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0024| shall describe the permit area of the existing mining operation
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0025| and the design limits of units of the existing mining operation
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0001| based upon the site assessment submitted by the operator. The
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0002| permit shall contain a schedule for completion of a closeout
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0003| plan. The permit shall thereafter be modified to incorporate
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0004| the approved closeout plan or portions of the closeout plan
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0005| once financial assurance has been provided for completion of
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0006| the closeout plan or the approved portions of the closeout
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0007| plan. The permit may be modified for new mining units,
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0008| expansions beyond the design limits of a unit at an existing
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0009| mining operation or standby status;
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0010| H. establish by regulation permit and reclamation
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0011| requirements for new mining operations that incorporate site-
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0012| specific characteristics. These requirements shall, at a
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0013| minimum:
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0014| (1) require that new mining operations be
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0015| designed and operated using the most appropriate technology and
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0016| the best management practices;
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0017| (2) assure protection of human health and
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0018| safety, the environment, wildlife and domestic animals;
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0019| (3) include backfilling or partial backfilling
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0020| only when necessary to achieve reclamation objectives that
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0021| cannot be accomplished through other mitigation measures;
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0022| (4) require approval by the director that the
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0023| permit area will achieve a self-sustaining ecosystem
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0024| appropriate for the life zone of the surrounding areas
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0025| following closure unless conflicting with the approved post-
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0001| mining land use;
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0002| (5) require that new mining operations be
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0003| designed in a manner that incorporates measures to reduce, to
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0004| the extent practicable, the formation of acid and other toxic
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0005| drainage that may otherwise occur following closure to prevent
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0006| releases that cause federal or state standards to be exceeded;
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0007| (6) require that nonpoint source surface
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0008| releases of acid or other toxic substances shall be contained
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0009| within the permit area;
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0010| (7) require that all waste, waste management
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0011| units, pits, heaps, pads and any other storage piles are
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0012| designed, sited and constructed in a manner that facilitates,
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0013| to the maximum extent practicable, contemporaneous reclamation
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0014| and are consistent with the new mining operation's approved
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0015| reclamation plan; and
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0016| (8) where sufficient topsoil is present, take
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0017| measures to preserve it from erosion or contamination and
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0018| assure that it is in a usable condition for sustaining
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0019| vegetation when needed;
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0020| I. adopt regulations that establish a permit
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0021| application process for new mining operations that includes:
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0022| (1) disclosure of ownership and controlling
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0023| interests in the new mining operation or submission of the
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0024| applicant's most recent form 10K required by the federal
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0025| securities and exchange commission;
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0001| (2) a statement of all mining operations
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0002| within the United States owned, operated or directly controlled
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0003| by the applicant, owner or operator and by persons or entities
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0004| that directly control the applicant and the names and the
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0005| addresses of regulatory agencies with jurisdiction over the
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0006| environmental aspects of those operations and that could
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0007| provide a compliance history for those operations and over the
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0008| preceding ten years. The operator shall assist the applicant
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0009| in obtaining compliance history information;
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0010| (3) a description of the type and method of
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0011| mining and the engineering techniques proposed;
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0012| (4) the anticipated starting and termination
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0013| dates of each phase of the new mining operation and the number
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0014| of acres of land to be affected;
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0015| (5) the names of all affected watersheds, the
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0016| location of any perennial, ephemeral or intermittent surface
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0017| stream or tributary into which surface or pit drainage will be
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0018| discharged or may possibly be expected to reach and the
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0019| location of any spring within the permit area and the affected
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0020| area;
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0021| (6) a determination of the probable hydrologic
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0022| consequences of the new mining operation and reclamation, both
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0023| on and off the permit area, with respect to the hydrologic
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0024| regime, quantity and quality of surface and ground water
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0025| systems, including the dissolved and suspended solids under
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0001| seasonal flow conditions;
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0002| (7) cross-sections or plans of the permit area
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0003| depicting:
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0004| (a) the nature and depth of the various
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0005| formations of overburden;
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0006| (b) the location of subsurface water, if
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0007| encountered, and its quality;
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0008| (c) the nature and location of any ore
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0009| body to be mined;
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0010| (d) the location of aquifers and
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0011| springs;
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0012| (e) the estimated position and flow of
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0013| the water table;
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0014| (f) the proposed location of waste rock,
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0015| tailings, stockpiles, heaps, pads and topsoil preservation
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0016| areas; and
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0017| (g) premining vegetation and wildlife
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0018| habitat features present at the site;
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0019| (8) the potential for geochemical alteration
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0020| of overburden, the ore body and other materials present within
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0021| the permit area;
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0022| (9) a reclamation plan that includes a
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0023| detailed description of the proposed post-mining land use and
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0024| how that use is to be achieved; and
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0025| (10) premining baseline data as required by
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0001| regulations adopted by the commission;
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0002| J. adopt regulations to coordinate the roles of
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0003| permitting agencies involved in regulating activities related
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0004| to new and existing mining operations and exploration,
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0005| including regulatory requirements, to avoid duplicative and
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0006| conflicting administration of the permitting process and other
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0007| requirements;
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0008| K. except for regulations enacted pursuant to
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0009| Subsection L of this section, adopt regulations that:
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0010| (1) ensure that the public and permitting
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0011| agencies receive notice of each application for:
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0012| (a) issuance, renewal or revision of a
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0013| permit for a new or existing mining operation;
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0014| (b) [for] standby status, or
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0015| exploration; or
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0016| (c) a variance or an application for
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0017| release of financial assurance and any inspection prior to the
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0018| release of financial assurance;
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0019| (2) [including a provision] include
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0020| provisions that no action shall be taken on any application
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0021| until an opportunity for a public hearing, held in the locality
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0022| of the operation, is provided and that all interested persons
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0023| shall be given a reasonable chance to submit data, views or
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0024| arguments orally or in writing and to examine witnesses
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0025| testifying at the hearing;
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0001| (3) provide for a public hearing if there is
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0002| significant public interest in and a request for a public
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0003| hearing and if:
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0004| (a) the applicant makes substantial
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0005| changes in the proposed action;
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0006| (b) new circumstances or information
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0007| develops bearing on the proposed action; or
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0008| (c) the applicant proposes to
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0009| substantially change the scale or the nature of the proposed
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0010| action; and
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0011| (4) [These regulations shall] require [at
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0012| a minimum that] the applicant for issuance, renewal or
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0013| revisions of a permit or a variance or an application for
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0014| release of financial assurance and any inspection prior to
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0015| release of financial assurance shall provide to the director
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0016| with the application proof that notice of the application
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0017| and public hearing procedure has been:
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0018| [(1)] (a) provided by certified mail
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0019| to the owners of record [as shown by the most recent property
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0020| tax schedule] of all properties within one-half mile of the
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0021| property on which the mining operation is located or is
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0022| proposed to be located;
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0023| [(2)] (b) provided by certified mail
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0024| to all municipalities and counties within a ten-mile radius of
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0025| the property on which the mining operation is or will be
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0001| located;
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0002| [(3)] (c) published once in a
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0003| newspaper of general circulation in each county in which the
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0004| property on which the mining operation is or will be located
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0005| [provided that this] and the notice shall appear in either
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0006| the classified or legal advertisements section of the newspaper
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0007| and at one other place in the newspaper [calculated] to give
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0008| the general public the most effective notice and, when
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0009| appropriate, [shall be printed] in both English and Spanish;
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0010| [(4)] (d) posted in at least four
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0011| publicly accessible and conspicuous places, including the
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0012| entrance to the new or existing mining operation [if that
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0013| entrance is publicly accessible and conspicuous]; and
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0014| [(5)] (e) mailed by certified mail
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0015| to all persons who have made a written request to the director
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0016| [for] a notice of the application and notification if the
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0017| application is complete;
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0018| L. adopt regulations to provide for permits,
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0019| without notice and hearing, to address mining operations that
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0020| have minimal impact on the environment; provided that such
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0021| permits shall require general plans and shall otherwise reduce
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0022| the permitting requirements of the New Mexico Mining Act;
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0023| M. establish by regulation a schedule of annual
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0024| administrative and permit fees, which shall equal and not
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0025| exceed the estimated costs of administration, implementation,
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0001| enforcement, investigation and permitting pursuant to the
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0002| provisions of the New Mexico Mining Act. The size of the
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0003| operation, anticipated inspection frequency and other factors
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0004| deemed relevant by the commission shall be considered in the
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0005| determination of the fees. The fees established pursuant to
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0006| this subsection shall be deposited in the mining act fund;
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0007| N. establish by regulation a continuing process of
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0008| review of mining and reclamation practices in New Mexico that
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0009| provides for periodic review and amendment of regulations and
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0010| procedures to provide for the protection of the environment and
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0011| consider the economic effects of the regulations;
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0012| O. adopt regulations governing the provision of
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0013| variances issued by the director, stating the procedures for
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0014| seeking a variance, including provisions for public notice and
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0015| an opportunity for a hearing in the locality where the variance
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0016| will be operative, the limitations on provision of variances,
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0017| requiring the petitioner to present sufficient evidence to
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0018| prove that failure to grant a variance will impose an undue
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0019| economic burden and that granting the variance will not result
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0020| in a significant threat to human health, safety or the
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0021| environment;
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0022| P. provide by regulation that, prior to the
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0023| issuance of any permit for a new mining operation pursuant to
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0024| the provisions of the New Mexico Mining Act, the permit
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0025| applicant or operator:
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0001| (1) shall provide evidence to the director
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0002| that other applicable state and federal permits required to be
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0003| obtained by the new or existing mining operation either have
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0004| been or will be issued before the activities subject to those
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0005| permits begin; and
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0006| (2) shall provide to the director a written
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0007| determination from the secretary of environment stating that
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0008| the permit applicant has demonstrated that the activities to be
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0009| permitted or authorized will be expected to achieve compliance
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0010| with all applicable air, water quality and other environmental
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0011| standards if carried out as described;
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0012| Q. require by regulation that the applicant file
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0013| with the director, prior to the issuance of a permit, financial
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0014| assurance. The amount of the financial assurance shall be
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0015| sufficient to assure the completion of the performance
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0016| requirements of the permit, including closure and reclamation,
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0017| if the work had to be performed by the director or a third
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0018| party contractor and shall include periodic review to account
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0019| for any inflationary increases and anticipated changes in
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0020| reclamation or closure costs. The regulations shall specify
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0021| that financial requirements shall neither duplicate nor be less
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0022| comprehensive than the federal financial requirements. The
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0023| form and amount of the financial assurance shall be subject to
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0024| the approval of the director as part of the permit application;
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0025| provided, financial assurance does not include any type or
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0001| variety of self-guarantee or self-insurance;
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0002| R. require by regulation that the permittee may
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0003| file an application with the director for the release of all or
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0004| part of the permittee's financial assurance. The permittee
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0005| shall not file an application for release of financial
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0006| assurance more than once per year for each mining operation.
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0007| The application shall describe the reclamation measures
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0008| completed and shall contain an estimate of the costs of
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0009| reclamation measures that have not been completed. Prior to
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0010| release of any portion of the permittee's financial assurance,
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0011| the director shall conduct an inspection and evaluation of the
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0012| reclamation work involved. The director shall notify persons
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0013| who have requested advance notice of the inspection.
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0014| Interested members of the public shall be allowed to be present
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0015| at the inspection of the reclamation work by the director.
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0016| (1) The director may release in whole or in
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0017| part the financial assurance if the reclamation covered by the
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0018| financial assurance has been accomplished as required by the
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0019| New Mexico Mining Act; provided that the director shall retain
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0020| financial assurance at least equal to the approved estimated
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0021| costs of completing reclamation measures that have not been
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0022| completed; and provided further that for revegetated areas, the
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0023| director shall retain the amount of financial assurance
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0024| necessary for a third party to reestablish vegetation for a
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0025| period of twelve years after the last year of augmented
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0001| seeding, fertilizing, irrigation or other work, unless a post-
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0002| mining land use is achieved that is inconsistent with the
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0003| further need for revegetation. For new mining operations only,
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0004| no part of the financial assurance necessary for a third party
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0005| to reestablish vegetation shall be released so long as the
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0006| lands to which the release would be applicable are contributing
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0007| suspended solids above background levels to streamflow of
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0008| intermittent and perennial streams.
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0009| (2) A person with an interest that is or will
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0010| be adversely affected by release of the financial assurance may
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0011| file, with the director within thirty days of the date of the
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0012| inspection, written objections to the proposed release from
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0013| financial assurance. If written objections are filed and a
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0014| hearing is requested, the director shall inform all the
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0015| interested parties of the time and place of the hearing at
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0016| least thirty days in advance of the public hearing, and hold a
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0017| public hearing in the locality of the new or existing mining
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0018| operation or exploration operation proposed for release from
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0019| financial assurance. The date, time and location of the public
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0020| hearing shall be advertised by the director in a newspaper of
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0021| general circulation in the locality for two consecutive weeks,
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0022| and all persons who have submitted a written request in advance
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0023| to the director to receive notices of hearings shall be
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0024| provided notice at least thirty days prior to the hearing;
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0025| S. establish coordinated procedures that avoid
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0001| duplication for the inspection, monitoring and sampling of air,
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0002| soil and water and enforcement of applicable requirements of
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0003| the New Mexico Mining Act, regulations adopted pursuant to that
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0004| act and permit conditions for new and existing mining
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0005| operations and exploration. The regulations shall require, at
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0006| a minimum:
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0007| (1) inspections by the director occurring on an
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0008| irregular basis [averaging not less than one inspection per
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0009| month when the mining operation is conducting significant
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0010| reclamation activities and one on-site inspection per calendar
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0011| quarter at all other times and on a schedule to be established
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0012| by the commission for mining operations having a minimal impact
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0013| on the environment and exploration operations covered by each
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0014| permit] according to the following schedule:
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0015| (a) at least one inspection per quarter
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0016| when the mining operation is conducting significant reclamation
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0017| activities;
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0018| (b) at least two inspections per year
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0019| for active mining operations;
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0020| (c) at least one inspection per year on
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0021| inactive sites;
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0022| (d) at least one inspection per year
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0023| following completion of all significant reclamation activities,
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0024| but prior to release of financial assurance; and
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0025| (e) on a schedule to be established by
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0001| the commission for mining or exploration operations having a
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0002| minimal impact on the environment;
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0003| (2) inspections shall occur without prior
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0004| notice to the permittee or his agents or employees except for
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0005| necessary on-site meetings with the permittee;
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0006| (3) when the director determines that a
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0007| condition or practice exists that violates a requirement of the
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0008| New Mexico Mining Act, a regulation adopted pursuant to that
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0009| act or a permit issued under that act, which condition,
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0010| practice or violation also creates an imminent danger to the
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0011| health or safety of the public or will cause significant
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0012| imminent environmental harm, the director shall immediately
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0013| order a cessation of the new or existing mining operation or
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0014| the exploration operation or the portion of that operation
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0015| relevant to the condition, practice or violation. The
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0016| cessation order shall remain in effect until the director
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0017| determines that the condition, practice or violation has been
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0018| abated or until modified, vacated or terminated by the director
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0019| or the commission;
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0020| (4) when the director determines that an owner
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0021| or operator is in violation of a requirement of the New Mexico
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0022| Mining Act, a regulation adopted pursuant to that act or a
|
0023| permit issued pursuant to that act but the violation does not
|
0024| create an imminent danger to the health or safety of the public
|
0025| or will not cause significant imminent environmental harm, the
|
0001| director shall issue a notice to the owner or operator fixing a
|
0002| reasonable time, not to exceed sixty days, for the abatement of
|
0003| the violation. If, upon expiration of the period of time as
|
0004| originally fixed or subsequently extended for good cause shown,
|
0005| the director finds that the violation has not been abated, he
|
0006| shall immediately order a cessation of new or existing mining
|
0007| operations or exploration operations or the portion thereof
|
0008| relevant to the violation. The cessation order shall remain in
|
0009| effect until the director determines that the violation has
|
0010| been abated; and
|
0011| (5) when the director determines that a
|
0012| pattern of violations of the requirements of the New Mexico
|
0013| Mining Act or of the regulations adopted pursuant to that act
|
0014| or the permit required by that act exists or has existed and,
|
0015| if the director also finds that such violations are caused by
|
0016| the unwarranted failure of the owner or operator to comply with
|
0017| the requirements of that act, regulation or permit or that such
|
0018| violations are willfully caused by the owner or operator, the
|
0019| director shall immediately issue an order to the owner or
|
0020| operator to show cause as to why the permit should not be
|
0021| suspended or revoked;
|
0022| T. provide for the transfer of a permit to a
|
0023| successor operator, providing for release of the first operator
|
0024| from obligations under the permit, including financial
|
0025| assurance, following the approved assumption of such
|
0001| obligations and financial assurance by the successor operator;
|
0002| U. adopt regulations providing that the owner or
|
0003| operator of an existing mining operation or a new mining
|
0004| operation who has completed some reclamation measures prior to
|
0005| the effective date of the regulations adopted pursuant to the
|
0006| New Mexico Mining Act may apply for an inspection of those
|
0007| reclamation measures and a release from further requirements
|
0008| pursuant to that act for the reclaimed areas if, after an
|
0009| inspection, the director determines that the reclamation
|
0010| measures satisfy the requirements of that act and the
|
0011| substantive requirements for reclamation pursuant to the
|
0012| applicable regulatory standards; and
|
0013| V. develop and adopt other regulations necessary
|
0014| and appropriate to carry out the purposes and provisions of the
|
0015| New Mexico Mining Act."
|
0016| Section 3. Section 69-36-14 NMSA 1978 (being Laws 1993,
|
0017| Chapter 315, Section 14) is amended to read:
|
0018| "69-36-14. CITIZENS SUITS.--
|
0019| A. A person having an interest that is or may be
|
0020| adversely affected may commence a civil action on his own
|
0021| behalf to compel compliance with the New Mexico Mining Act.
|
0022| Such action may be brought against:
|
0023| (1) the department of environment, the energy,
|
0024| minerals and natural resources department or the commission
|
0025| alleging a violation of the New Mexico Mining Act or of a rule,
|
0001| regulation, order or permit issued pursuant to that act;
|
0002| (2) a person who is alleged to be in violation
|
0003| of a rule, regulation, order or permit issued pursuant to the
|
0004| New Mexico Mining Act; or
|
0005| (3) the department of environment, the energy,
|
0006| minerals and natural resources department or the commission
|
0007| alleging a failure to perform any nondiscretionary act or duty
|
0008| [under] required by the New Mexico Mining Act; provided,
|
0009| however, that no action pursuant to this section shall be
|
0010| commenced if the department of environment, the energy,
|
0011| minerals and natural resources department or the commission has
|
0012| commenced and is diligently prosecuting a civil action in a
|
0013| court of this state or an administrative enforcement proceeding
|
0014| to require compliance with that act. In an administrative or
|
0015| court action commenced by the department of environment, the
|
0016| energy, minerals and natural resources department or the
|
0017| commission, a person whose interest may be adversely affected
|
0018| and who has provided notice pursuant to Subsection B of this
|
0019| section prior to the initiation of the action may intervene as
|
0020| a matter of right.
|
0021| B. No action shall be commenced pursuant to this
|
0022| section prior to sixty days after the plaintiff has given
|
0023| written notice to the department of environment, the energy,
|
0024| minerals and natural resources department, the commission, the
|
0025| attorney general and the alleged violator of the New Mexico
|
0001| Mining Act; provided, however, when the violation or order
|
0002| complained of constitutes an immediate threat to the health or
|
0003| safety of the plaintiff or would immediately and irreversibly
|
0004| impair a legal interest of the plaintiff, an action pursuant to
|
0005| this section may be brought immediately after notification of
|
0006| the proper parties.
|
0007| C. [An action brought pursuant to this section
|
0008| alleging a violation of the New Mexico Mining Act or the
|
0009| regulations adopted pursuant to that act other than suits
|
0010| against the department of environment, the energy, minerals and
|
0011| natural resources department or the commission shall be brought
|
0012| in the judicial district in which the mining operation
|
0013| complained of is located. Suits against the department of
|
0014| environment, the energy, minerals and natural resources
|
0015| department or the commission shall be brought in the district
|
0016| court of Santa Fe] Suits against the department of
|
0017| environment, the energy, minerals and natural resources
|
0018| department or the commission shall be brought in the district
|
0019| court of Santa Fe county. Suits only against one or more
|
0020| owners or operators of one or more mining operations shall be
|
0021| brought in the district court where one of the mining
|
0022| operations is located. If an action is brought against the
|
0023| department of environment, the energy, minerals and natural
|
0024| resources department or the commission and the owner or
|
0025| operator of a mining operation, such owner or operator may
|
0001| apply for a change of venue to the judicial district in which
|
0002| the mining operation is located. If not already a party, an
|
0003| owner or operator may intervene, upon a showing that the action
|
0004| relates primarily to a dispute regarding the single mining
|
0005| operation and apply for such a change of venue. The district
|
0006| court shall grant a change of venue upon a showing that the
|
0007| action relates primarily to a dispute regarding the subject
|
0008| single mining operation and a showing that a forum non
|
0009| conveniens analysis suggests that the location of the mining
|
0010| operation is a superior venue.
|
0011| D. In an action brought pursuant to this section,
|
0012| the department of environment, the energy, minerals and natural
|
0013| resources department or the commission, if not a party, may
|
0014| intervene.
|
0015| E. The court, in issuing a final order in an action
|
0016| brought pursuant to this section, may award costs of
|
0017| litigation, including [attorneys'] attorney and expert
|
0018| witness fees, to a party whenever the court determines such
|
0019| award is appropriate. The court may, if a temporary injunction
|
0020| or preliminary injunction is sought, require the filing of a
|
0021| bond or equivalent security in accordance with the rules of
|
0022| civil procedure."
|
0023| State of New Mexico
|
0024| House of Representatives
|
0025|
|
0001| FORTY-THIRD LEGISLATURE
|
0002| FIRST SESSION, 1997
|
0003|
|
0004|
|
0005| March 5, 1997
|
0006|
|
0007|
|
0008| Mr. Speaker:
|
0009|
|
0010| Your ENERGY AND NATURAL RESOURCES COMMITTEE, to
|
0011| whom has been referred
|
0012|
|
0013| HOUSE BILL 1095
|
0014|
|
0015| has had it under consideration and reports same with
|
0016| recommendation that it DO NOT PASS, but that
|
0017|
|
0018| HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE
|
0019| SUBSTITUTE FOR HOUSE BILL 1095
|
0020|
|
0021| DO PASS, and thence referred to the CONSUMER AND PUBLIC
|
0022| AFFAIRS COMMITTEE.
|
0023|
|
0024| Respectfully submitted,
|
0025|
|
0001|
|
0002|
|
0003|
|
0004|
|
0005| James Roger Madalena, Chairman
|
0006|
|
0007|
|
0008| Adopted Not Adopted
|
0009|
|
0010| (Chief Clerk) (Chief Clerk)
|
0011|
|
0012| Date
|
0013|
|
0014| The roll call vote was 7 For 1 Against
|
0015| Yes: 7
|
0016| No: Stewart
|
0017| Excused: Chavez, Garcia, M. P., Getty, Knowles
|
0018| Absent: None
|
0019|
|
0020| G:\BILLTEXT\BILLW_97\H1095 HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE SUBSTITUTE FOR
|
0021| HOUSE BILL 1095
|
0022| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0023|
|
0024|
|
0025|
|
0001|
|
0002|
|
0003|
|
0004|
|
0005| AN ACT
|
0006| RELATING TO MINING; AMENDING SECTIONS OF THE NEW MEXICO MINING
|
0007| ACT TO CHANGE THE MEMBERSHIP OF THE MINING COMMISSION, TO AMEND
|
0008| THE NUMBER OF REQUIRED INSPECTIONS, TO ALLOW FOR A CHANGE OF
|
0009| VENUE FOR CITIZEN SUITS AND TO INCREASE PUBLIC NOTICE AND
|
0010| OPPORTUNITY FOR HEARINGS REGARDING PERMITS.
|
0011|
|
0012| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0013| Section 1. Section 69-36-6 NMSA 1978 (being Laws 1993,
|
0014| Chapter 315, Section 6) is amended to read:
|
0015| "69-36-6. MINING COMMISSION--CREATED--MEMBERS.--
|
0016| A. The "mining commission" is created. The
|
0017| commission shall consist of seven voting members, including:
|
0018| (1) the director of the bureau of mines and
|
0019| mineral resources of the New Mexico institute of mining and
|
0020| technology or [an academic from a mining-related field to be
|
0021| appointed for a four-year term by the governor with the advice
|
0022| and consent of the senate] his designee;
|
0023| (2) the secretary of environment or his
|
0024| designee;
|
0025| (3) the state engineer or his designee;
|
0001| (4) the commissioner of public lands or his
|
0002| designee;
|
0003| (5) the director of the department of game and
|
0004| fish or his designee; and
|
0005| (6) two members of the public and an alternate
|
0006| for each, all to be appointed by the governor with the advice
|
0007| and consent of the senate. The public members shall be chosen
|
0008| to represent and to balance environmental and mining interests
|
0009| while minimizing conflicts of interest. No more than one of
|
0010| the public members and one of the alternates appointed may
|
0011| belong to the same political party. When the initial
|
0012| appointments are made, one of the public members and his
|
0013| alternate will be designated to serve for two-year terms, after
|
0014| which all public members shall serve for four years. An
|
0015| alternate member may vote only in the absence of the public
|
0016| member for whom he is the alternate.
|
0017| B. The chairman of the soil and water conservation
|
0018| commission and the director of the agricultural experiment
|
0019| station of New Mexico state university or their designees shall
|
0020| be nonvoting [ex-officio] members [to] of the commission.
|
0021| C. The commission shall elect a chairman and other
|
0022| necessary officers and keep records of its proceedings.
|
0023| D. The commission shall convene upon the call of
|
0024| the chairman or a majority of its members.
|
0025| E. A majority of the voting members of the
|
0001| commission shall be a quorum for the transaction of business.
|
0002| However, no action of the commission shall be valid unless
|
0003| concurred upon by at least four of the members present.
|
0004| F. No member of the commission, with the exception of
|
0005| one of the public members and his alternate, shall receive, or
|
0006| shall have received during the previous two years, more than ten
|
0007| percent of his income directly or indirectly from permit holders
|
0008| or applicants for permits. Each member of the commission shall,
|
0009| upon acceptance of his appointment and prior to the performance of
|
0010| any of his duties, file a statement of disclosure with the
|
0011| secretary of state stating:
|
0012| (1) the amount of money or other valuable
|
0013| consideration received, whether provided directly or indirectly,
|
0014| from persons subject to or who appear before the commission;
|
0015| (2) the identity of the source of money or other
|
0016| valuable consideration; and
|
0017| (3) whether the money or other valuable
|
0018| consideration was in excess of ten percent of his gross personal
|
0019| income in either of the preceding two years.
|
0020| G. No commissioner with any financial interest
|
0021| affected or potentially affected by a permit action may
|
0022| participate in proceedings related to that permit action."
|
0023| Section 2. Section 69-36-7 NMSA 1978 (being Laws 1993,
|
0024| Chapter 315, Section 7) is amended to read:
|
0025| "69-36-7. COMMISSION--DUTIES.--The commission shall:
|
0001| A. [within one year of the effective date of the New
|
0002| Mexico Mining Act] before June 18, 1994, adopt and file
|
0003| reasonable regulations consistent with the purposes and intent of
|
0004| the New Mexico Mining Act necessary to implement [that] the
|
0005| provisions of the New Mexico Mining Act, including regulations
|
0006| that:
|
0007| (1) consider the economic and environmental
|
0008| effects of their implementation;
|
0009| (2) require permitting of all new and existing
|
0010| mining operations and exploration; and
|
0011| (3) require annual reporting of production
|
0012| information to the commission, which shall be kept confidential if
|
0013| otherwise required by law;
|
0014| B. adopt regulations for new mining operations that
|
0015| allow the director to select a qualified expert who may:
|
0016| (1) review and comment to the director on the
|
0017| adequacy of baseline data gathered prior to submission of the
|
0018| permit application for use in the permit application process;
|
0019| (2) recommend to the director additional
|
0020| baseline data that may be necessary in the review of the proposed
|
0021| mining activity;
|
0022| (3) recommend to the director methodology
|
0023| guidelines to be followed in the collection of all baseline data;
|
0024| and
|
0025| (4) review and comment on the permit
|
0001| application;
|
0002| C. adopt regulations that require and provide for the
|
0003| issuance and renewal of permits for new and existing mining
|
0004| operations and exploration and that establish schedules to bring
|
0005| existing mining operations into compliance with the requirements
|
0006| of the New Mexico Mining Act; provided the term of a permit for a
|
0007| new mining operation shall not exceed twenty years and the term of
|
0008| renewals of permits for new mining operations shall not exceed ten
|
0009| years;
|
0010| D. adopt regulations that provide for permit
|
0011| modifications. The commission shall establish criteria to
|
0012| determine which permit modifications may have significant
|
0013| environmental impact. Modifications that the director determines
|
0014| will have significant environmental impact shall require public
|
0015| notice and an opportunity for public hearing pursuant to
|
0016| Subsection K of this section. A permit modification to the permit
|
0017| for an existing mining operation shall be obtained for each new
|
0018| discrete processing, leaching, excavation, storage or stockpile
|
0019| unit located within the permit area of an existing mining
|
0020| operation and not identified in the permit of an existing mining
|
0021| operation and for each expansion of such a unit identified in the
|
0022| permit for an existing mining operation that exceeds the design
|
0023| limits specified in the permit. The regulations shall require
|
0024| that permit modifications for such units be approved if the
|
0025| director determines that the unit will:
|
0001| (1) comply with the regulations regarding permit
|
0002| modifications;
|
0003| (2) incorporate the requirements of Paragraphs
|
0004| (1), (2), (4), (5) and (6) of Subsection H of this section; and
|
0005| (3) be sited and constructed in a manner that
|
0006| facilitates, to the maximum extent practicable, contemporaneous
|
0007| reclamation consistent with the closeout plan;
|
0008| E. adopt regulations that require new and existing
|
0009| mining operations to obtain and maintain permits for standby
|
0010| status. A permit for standby status shall be issued for a maximum
|
0011| term of five years; provided that upon application the director
|
0012| may renew a permit for standby status for no more than three
|
0013| additional five-year terms. The regulations shall require that
|
0014| before a permit for standby status is issued or renewed an owner
|
0015| or operator shall:
|
0016| (1) identify the projected term of standby
|
0017| status for each unit of the new or existing mining operation;
|
0018| (2) take measures that reduce, to the extent
|
0019| practicable, the formation of acid and other toxic drainage to
|
0020| prevent releases that cause federal or state environmental
|
0021| standards to be exceeded;
|
0022| (3) meet applicable federal and state
|
0023| environmental standards and regulations during the period of
|
0024| standby status;
|
0025| (4) stabilize waste and storage units, leach
|
0001| piles, impoundments and pits during the term of standby status;
|
0002| (5) comply with applicable requirements of the
|
0003| New Mexico Mining Act and the regulations adopted pursuant to that
|
0004| act; and
|
0005| (6) provide an analysis of the economic
|
0006| viability of each unit proposed for standby status;
|
0007| F. establish by regulation closeout plan requirements
|
0008| for existing mining operations that incorporate site-specific
|
0009| characteristics, including consideration of disturbances from
|
0010| previous mining operations, and that take into account the mining
|
0011| method utilized;
|
0012| G. establish by regulation a procedure for the
|
0013| issuance of a permit for an existing mining operation and for
|
0014| modifications of that permit to incorporate approved closeout
|
0015| plans or portions of closeout plans and financial assurance
|
0016| requirements for performance of the closeout plans. The permit
|
0017| shall describe the permit area of the existing mining operation
|
0018| and the design limits of units of the existing mining operation
|
0019| based upon the site assessment submitted by the operator. The
|
0020| permit shall contain a schedule for completion of a closeout plan.
|
0021| The permit shall thereafter be modified to incorporate the
|
0022| approved closeout plan or portions of the closeout plan once
|
0023| financial assurance has been provided for completion of the
|
0024| closeout plan or the approved portions of the closeout plan. The
|
0025| permit may be modified for new mining units, expansions beyond the
|
0001| design limits of a unit at an existing mining operation or standby
|
0002| status;
|
0003| H. establish by regulation permit and reclamation
|
0004| requirements for new mining operations that incorporate site-
|
0005| specific characteristics. These requirements shall, at a minimum:
|
0006| (1) require that new mining operations be
|
0007| designed and operated using the most appropriate technology and
|
0008| the best management practices;
|
0009| (2) assure protection of human health and
|
0010| safety, the environment, wildlife and domestic animals;
|
0011| (3) include backfilling or partial backfilling
|
0012| only when necessary to achieve reclamation objectives that cannot
|
0013| be accomplished through other mitigation measures;
|
0014| (4) require approval by the director that the
|
0015| permit area will achieve a self-sustaining ecosystem appropriate
|
0016| for the life zone of the surrounding areas following closure
|
0017| unless conflicting with the approved post-mining land use;
|
0018| (5) require that new mining operations be
|
0019| designed in a manner that incorporates measures to reduce, to the
|
0020| extent practicable, the formation of acid and other toxic drainage
|
0021| that may otherwise occur following closure to prevent releases
|
0022| that cause federal or state standards to be exceeded;
|
0023| (6) require that nonpoint source surface
|
0024| releases of acid or other toxic substances shall be contained
|
0025| within the permit area;
|
0001| (7) require that all waste, waste management
|
0002| units, pits, heaps, pads and any other storage piles are designed,
|
0003| sited and constructed in a manner that facilitates, to the maximum
|
0004| extent practicable, contemporaneous reclamation and are consistent
|
0005| with the new mining operation's approved reclamation plan; and
|
0006| (8) where sufficient topsoil is present, take
|
0007| measures to preserve it from erosion or contamination and assure
|
0008| that it is in a usable condition for sustaining vegetation when
|
0009| needed;
|
0010| I. adopt regulations that establish a permit
|
0011| application process for new mining operations that includes:
|
0012| (1) disclosure of ownership and controlling
|
0013| interests in the new mining operation or submission of the
|
0014| applicant's most recent form 10K required by the federal
|
0015| securities exchange commission;
|
0016| (2) a statement of all mining operations within
|
0017| the United States owned, operated or directly controlled by the
|
0018| applicant, owner or operator and by persons or entities that
|
0019| directly control the applicant and the names and the addresses of
|
0020| regulatory agencies with jurisdiction over the environmental
|
0021| aspects of those operations and that could provide a compliance
|
0022| history for those operations and over the preceding ten years.
|
0023| The operator shall assist the applicant in obtaining compliance
|
0024| history information;
|
0025| (3) a description of the type and method of
|
0001| mining and the engineering techniques proposed;
|
0002| (4) the anticipated starting and termination
|
0003| dates of each phase of the new mining operation and the number of
|
0004| acres of land to be affected;
|
0005| (5) the names of all affected watersheds, the
|
0006| location of any perennial, ephemeral or intermittent surface
|
0007| stream or tributary into which surface or pit drainage will be
|
0008| discharged or may possibly be expected to reach and the location
|
0009| of any spring within the permit area and the affected area;
|
0010| (6) a determination of the probable hydrologic
|
0011| consequences of the new mining operation and reclamation, both on
|
0012| and off the permit area, with respect to the hydrologic regime,
|
0013| quantity and quality of surface and ground water systems,
|
0014| including the dissolved and suspended solids under seasonal flow
|
0015| conditions;
|
0016| (7) cross-sections or plans of the permit area
|
0017| depicting:
|
0018| (a) the nature and depth of the various
|
0019| formations of overburden;
|
0020| (b) the location of subsurface water, if
|
0021| encountered, and its quality;
|
0022| (c) the nature and location of any ore body
|
0023| to be mined;
|
0024| (d) the location of aquifers and springs;
|
0025| (e) the estimated position and flow of the
|
0001| water table;
|
0002| (f) the proposed location of waste rock,
|
0003| tailings, stockpiles, heaps, pads and topsoil preservation areas;
|
0004| and
|
0005| (g) premining vegetation and wildlife
|
0006| habitat features present at the site;
|
0007| (8) the potential for geochemical alteration of
|
0008| overburden, the ore body and other materials present within the
|
0009| permit area;
|
0010| (9) a reclamation plan that includes a detailed
|
0011| description of the proposed post-mining land use and how that use
|
0012| is to be achieved; and
|
0013| (10) premining baseline data as required by
|
0014| regulations adopted by the commission;
|
0015| J. adopt regulations to coordinate the roles of
|
0016| permitting agencies involved in regulating activities related to
|
0017| new and existing mining operations and exploration, including
|
0018| regulatory requirements, to avoid duplicative and conflicting
|
0019| administration of the permitting process and other requirements;
|
0020| K. except for regulations enacted pursuant to
|
0021| Subsection L of this section, adopt regulations that ensure that
|
0022| the public and permitting agencies receive notice of each
|
0023| application for issuance, renewal or revision of a permit for a
|
0024| new or existing mining operation, for standby status, or
|
0025| exploration, a variance or an application for release of financial
|
0001| assurance and any inspection prior to the release of financial
|
0002| assurance, including a provision that no action shall be taken on
|
0003| any application until an opportunity for a public hearing, held in
|
0004| the locality of the operation, is provided and that all interested
|
0005| persons shall be given a reasonable chance to submit data, views
|
0006| or arguments orally or in writing and to examine witnesses
|
0007| testifying at the hearing. An additional opportunity for a public
|
0008| hearing may be provided if the applicant makes substantial changes
|
0009| in the proposed action, if there are significant new circumstances
|
0010| or information bearing on the proposed action or if the applicant
|
0011| proposes to substantially increase the scale or substantially
|
0012| change the nature of the proposed action and there is public
|
0013| interest and a request for a public hearing. These regulations
|
0014| shall require at a minimum that the applicant for issuance,
|
0015| renewal or revisions of a permit or a variance or an application
|
0016| for release of financial assurance and any inspection prior to
|
0017| release of financial assurance shall provide to the director at
|
0018| the time of filing the application with the director proof that
|
0019| notice of the application and of the procedure for requesting a
|
0020| public hearing has been:
|
0021| (1) provided by certified mail to the owners of
|
0022| record, as shown by the most recent property tax schedule, of all
|
0023| properties within one-half mile of the property on which the
|
0024| mining operation is located or is proposed to be located;
|
0025| (2) provided by certified mail to all
|
0001| municipalities and counties within a ten-mile radius of the
|
0002| property on which the mining operation is or will be located;
|
0003| (3) published once in a newspaper of general
|
0004| circulation in each county in which the property on which the
|
0005| mining operation is or will be located; provided that this notice
|
0006| shall appear in either the classified or legal advertisements
|
0007| section of the newspaper and at one other place in the newspaper
|
0008| calculated to give the general public the most effective notice
|
0009| and, when appropriate, shall be printed in both English and
|
0010| Spanish;
|
0011| (4) posted in at least four publicly accessible
|
0012| and conspicuous places, including the entrance to the new or
|
0013| existing mining operation if that entrance is publicly accessible
|
0014| and conspicuous; [and]
|
0015| (5) mailed to all persons who have made a
|
0016| written request to the director for notice of this application;
|
0017| and
|
0018| (6) mailed by certified mail to all persons on
|
0019| a list maintained by the director of individuals and organizations
|
0020| who have requested notice of applications under this act. If the
|
0021| application is determined to be administratively complete by the
|
0022| director, the applicant shall provide to the director timely proof
|
0023| that notice of that determination has been provided by first class
|
0024| mail to everyone who has indicated to the applicant in writing
|
0025| that they desire information regarding the application and to a
|
0001| list maintained by the director of individuals and organizations
|
0002| who have requested notice of applications under this act;
|
0003| L. adopt regulations to provide for permits, without
|
0004| notice and hearing, to address mining operations that have minimal
|
0005| impact on the environment; provided that such permits shall
|
0006| require general plans and shall otherwise reduce the permitting
|
0007| requirements of the New Mexico Mining Act;
|
0008| M. establish by regulation a schedule of annual
|
0009| administrative and permit fees, which shall equal and not exceed
|
0010| the estimated costs of administration, implementation,
|
0011| enforcement, investigation and permitting pursuant to the
|
0012| provisions of the New Mexico Mining Act. The size of the
|
0013| operation, anticipated inspection frequency and other factors
|
0014| deemed relevant by the commission shall be considered in the
|
0015| determination of the fees. The fees established pursuant to this
|
0016| subsection shall be deposited in the mining act fund;
|
0017| N. establish by regulation a continuing process of
|
0018| review of mining and reclamation practices in New Mexico that
|
0019| provides for periodic review and amendment of regulations and
|
0020| procedures to provide for the protection of the environment and
|
0021| consider the economic effects of the regulations;
|
0022| O. adopt regulations governing the provision of
|
0023| variances issued by the director, stating the procedures for
|
0024| seeking a variance, including provisions for public notice and an
|
0025| opportunity for a hearing in the locality where the variance will
|
0001| be operative, the limitations on provision of variances, requiring
|
0002| the petitioner to present sufficient evidence to prove that
|
0003| failure to grant a variance will impose an undue economic burden
|
0004| and that granting the variance will not result in a significant
|
0005| threat to human health, safety or the environment;
|
0006| P. provide by regulation that, prior to the issuance
|
0007| of any permit for a new mining operation pursuant to the
|
0008| provisions of the New Mexico Mining Act, the permit applicant or
|
0009| operator:
|
0010| (1) shall provide evidence to the director that
|
0011| other applicable state and federal permits required to be obtained
|
0012| by the new or existing mining operation either have been or will
|
0013| be issued before the activities subject to those permits begin;
|
0014| and
|
0015| (2) shall provide to the director a written
|
0016| determination from the secretary of environment stating that the
|
0017| permit applicant has demonstrated that the activities to be
|
0018| permitted or authorized will be expected to achieve compliance
|
0019| with all applicable air, water quality and other environmental
|
0020| standards if carried out as described;
|
0021| Q. require by regulation that the applicant file with
|
0022| the director, prior to the issuance of a permit, financial
|
0023| assurance. The amount of the financial assurance shall be
|
0024| sufficient to assure the completion of the performance
|
0025| requirements of the permit, including closure and reclamation, if
|
0001| the work had to be performed by the director or a third party
|
0002| contractor and shall include periodic review to account for any
|
0003| inflationary increases and anticipated changes in reclamation or
|
0004| closure costs. The regulations shall specify that financial
|
0005| requirements shall neither duplicate nor be less comprehensive
|
0006| than the federal financial requirements. The form and amount of
|
0007| the financial assurance shall be subject to the approval of the
|
0008| director as part of the permit application; provided, financial
|
0009| assurance does not include any type or variety of self-guarantee
|
0010| or self-insurance;
|
0011| R. require by regulation that the permittee may file
|
0012| an application with the director for the release of all or part of
|
0013| the permittee's financial assurance. The permittee shall not file
|
0014| an application for release of financial assurance more than once
|
0015| per year for each mining operation. The application shall
|
0016| describe the reclamation measures completed and shall contain an
|
0017| estimate of the costs of reclamation measures that have not been
|
0018| completed. Prior to release of any portion of the permittee's
|
0019| financial assurance, the director shall conduct an inspection and
|
0020| evaluation of the reclamation work involved. The director shall
|
0021| notify persons who have requested advance notice of the
|
0022| inspection. Interested members of the public shall be allowed to
|
0023| be present at the inspection of the reclamation work by the
|
0024| director.
|
0025| (1) The director may release in whole or in part
|
0001| the financial assurance if the reclamation covered by the
|
0002| financial assurance has been accomplished as required by the New
|
0003| Mexico Mining Act; provided that the director shall retain
|
0004| financial assurance at least equal to the approved estimated costs
|
0005| of completing reclamation measures that have not been completed;
|
0006| and provided further that for revegetated areas, the director
|
0007| shall retain the amount of financial assurance necessary for a
|
0008| third party to reestablish vegetation for a period of twelve years
|
0009| after the last year of augmented seeding, fertilizing, irrigation
|
0010| or other work, unless a post-mining land use is achieved that is
|
0011| inconsistent with the further need for revegetation. For new
|
0012| mining operations only, no part of the financial assurance
|
0013| necessary for a third party to reestablish vegetation shall be
|
0014| released so long as the lands to which the release would be
|
0015| applicable are contributing suspended solids above background
|
0016| levels to streamflow of intermittent and perennial streams.
|
0017| (2) A person with an interest that is or will be
|
0018| adversely affected by release of the financial assurance may file,
|
0019| with the director within thirty days of the date of the
|
0020| inspection, written objections to the proposed release from
|
0021| financial assurance. If written objections are filed and a
|
0022| hearing is requested, the director shall inform all the interested
|
0023| parties of the time and place of the hearing at least thirty days
|
0024| in advance of the public hearing, and hold a public hearing in the
|
0025| locality of the new or existing mining operation or exploration
|
0001| operation proposed for release from financial assurance. The
|
0002| date, time and location of the public hearing shall be advertised
|
0003| by the director in a newspaper of general circulation in the
|
0004| locality for two consecutive weeks, and all persons who have
|
0005| submitted a written request in advance to the director to receive
|
0006| notices of hearings shall be provided notice at least thirty days
|
0007| prior to the hearing;
|
0008| S. establish coordinated procedures that avoid
|
0009| duplication for the inspection, monitoring and sampling of air,
|
0010| soil and water and enforcement of applicable requirements of the
|
0011| New Mexico Mining Act, regulations adopted pursuant to that act
|
0012| and permit conditions for new and existing mining operations and
|
0013| exploration. The regulations shall require, at a minimum:
|
0014| (1) inspections by the director occurring on an
|
0015| irregular basis [averaging not less than one inspection per month
|
0016| when the mining operation is conducting significant reclamation
|
0017| activities and one on-site inspection per calendar quarter at all
|
0018| other times and on a schedule to be established by the commission
|
0019| for mining operations having a minimal impact on the environment
|
0020| and exploration operations covered by each permit] according to
|
0021| the following schedule:
|
0022| (a) at least one inspection per month when
|
0023| the mining operation is conducting significant reclamation
|
0024| activities;
|
0025| (b) at least two inspections per year for
|
0001| active mining operations;
|
0002| (c) at least one inspection per year on
|
0003| inactive sites;
|
0004| (d) at least one inspection per year
|
0005| following completion of all significant reclamation activities,
|
0006| but prior to release of financial assurance; and
|
0007| (e) mining operations having a minimal
|
0008| impact on the environment and exploration operations will be
|
0009| inspected on a schedule to be established by the commission;
|
0010| (2) inspections shall occur without prior notice
|
0011| to the permittee or his agents or employees except for necessary
|
0012| on-site meetings with the permittee;
|
0013| (3) when the director determines that a
|
0014| condition or practice exists that violates a requirement of the
|
0015| New Mexico Mining Act, a regulation adopted pursuant to that act
|
0016| or a permit issued under that act, which condition, practice or
|
0017| violation also creates an imminent danger to the health or safety
|
0018| of the public or will cause significant imminent environmental
|
0019| harm, the director shall immediately order a cessation of the new
|
0020| or existing mining operation or the exploration operation or the
|
0021| portion of that operation relevant to the condition, practice or
|
0022| violation. The cessation order shall remain in effect until the
|
0023| director determines that the condition, practice or violation has
|
0024| been abated or until modified, vacated or terminated by the
|
0025| director or the commission;
|
0001| (4) when the director determines that an owner
|
0002| or operator is in violation of a requirement of the New Mexico
|
0003| Mining Act, a regulation adopted pursuant to that act or a permit
|
0004| issued pursuant to that act but the violation does not create an
|
0005| imminent danger to the health or safety of the public or will not
|
0006| cause significant imminent environmental harm, the director shall
|
0007| issue a notice to the owner or operator fixing a reasonable time,
|
0008| not to exceed sixty days, for the abatement of the violation. If,
|
0009| upon expiration of the period of time as originally fixed or
|
0010| subsequently extended for good cause shown, the director finds
|
0011| that the violation has not been abated, he shall immediately order
|
0012| a cessation of new or existing mining operations or exploration
|
0013| operations or the portion thereof relevant to the violation. The
|
0014| cessation order shall remain in effect until the director
|
0015| determines that the violation has been abated; and
|
0016| (5) when the director determines that a pattern
|
0017| of violations of the requirements of the New Mexico Mining Act or
|
0018| of the regulations adopted pursuant to that act or the permit
|
0019| required by that act exists or has existed and, if the director
|
0020| also finds that such violations are caused by the unwarranted
|
0021| failure of the owner or operator to comply with the requirements
|
0022| of that act, regulation or permit or that such violations are
|
0023| willfully caused by the owner or operator, the director shall
|
0024| immediately issue an order to the owner or operator to show cause
|
0025| as to why the permit should not be suspended or revoked;
|
0001| T. provide for the transfer of a permit to a successor
|
0002| operator, providing for release of the first operator from
|
0003| obligations under the permit, including financial assurance,
|
0004| following the approved assumption of such obligations and
|
0005| financial assurance by the successor operator;
|
0006| U. adopt regulations providing that the owner or
|
0007| operator of an existing mining operation or a new mining operation
|
0008| who has completed some reclamation measures prior to the effective
|
0009| date of the regulations adopted pursuant to the New Mexico Mining
|
0010| Act may apply for an inspection of those reclamation measures and
|
0011| a release from further requirements pursuant to that act for the
|
0012| reclaimed areas if, after an inspection, the director determines
|
0013| that the reclamation measures satisfy the requirements of that act
|
0014| and the substantive requirements for reclamation pursuant to the
|
0015| applicable regulatory standards; and
|
0016| V. develop and adopt other regulations necessary and
|
0017| appropriate to carry out the purposes and provisions of the New
|
0018| Mexico Mining Act."
|
0019| Section 3. Section 69-36-14 NMSA 1978 (being Laws 1993,
|
0020| Chapter 315, Section 14) is amended to read:
|
0021| "69-36-14. CITIZENS SUITS.--
|
0022| A. A person having an interest that is or may be
|
0023| adversely affected may commence a civil action on his own behalf
|
0024| to compel compliance with the New Mexico Mining Act. Such action
|
0025| may be brought against:
|
0001| (1) the department of environment, the energy,
|
0002| minerals and natural resources department or the commission
|
0003| alleging a violation of the New Mexico Mining Act or of a rule,
|
0004| regulation, order or permit issued pursuant to that act;
|
0005| (2) a person who is alleged to be in violation
|
0006| of a rule, regulation, order or permit issued pursuant to the New
|
0007| Mexico Mining Act; or
|
0008| (3) the department of environment, the energy,
|
0009| minerals and natural resources department or the commission
|
0010| alleging a failure to perform any nondiscretionary act or duty
|
0011| [under] required by the New Mexico Mining Act; provided,
|
0012| however, that no action pursuant to this section shall be
|
0013| commenced if the department of environment, the energy, minerals
|
0014| and natural resources department or the commission has commenced
|
0015| and is diligently prosecuting a civil action in a court of this
|
0016| state or an administrative enforcement proceeding to require
|
0017| compliance with that act. In an administrative or court action
|
0018| commenced by the department of environment, the energy, minerals
|
0019| and natural resources department or the commission, a person whose
|
0020| interest may be adversely affected and who has provided notice
|
0021| pursuant to Subsection B of this section prior to the initiation
|
0022| of the action may intervene as a matter of right.
|
0023| B. No action shall be commenced pursuant to this
|
0024| section prior to sixty days after the plaintiff has given written
|
0025| notice to the department of environment, the energy, minerals and
|
0001| natural resources department, the commission, the attorney general
|
0002| and the alleged violator of the New Mexico Mining Act; provided,
|
0003| however, when the violation or order complained of constitutes an
|
0004| immediate threat to the health or safety of the plaintiff or would
|
0005| immediately and irreversibly impair a legal interest of the
|
0006| plaintiff, an action pursuant to this section may be brought
|
0007| immediately after notification of the proper parties.
|
0008| [C. An action brought pursuant to this section
|
0009| alleging a violation of the New Mexico Mining Act or the
|
0010| regulations adopted pursuant to that act other than suits against
|
0011| the department of environment, the energy, minerals and natural
|
0012| resources department or the commission shall be brought in the
|
0013| judicial district in which the mining operation complained of is
|
0014| located. Suits against the department of environment, the energy,
|
0015| minerals and natural resources department or the commission shall
|
0016| be brought in the district court of Santa Fe.]
|
0017| C. Except as otherwise provided herein, suits against
|
0018| the department of environment, the energy, minerals and natural
|
0019| resources department or the commission shall be brought in the
|
0020| district court of Santa Fe county. Suits only against one or more
|
0021| owners or operators of one or more mining operations shall be
|
0022| brought in the district court where one of the mining operations
|
0023| is located. If an action is brought against the department of
|
0024| environment, the energy, minerals and natural resources department
|
0025| or the commission and the owner or operator of a mining operation,
|
0001| such owner or operator may apply for a change of venue to the
|
0002| judicial district in which the mining operation is located. If
|
0003| not already a party, an owner or operator may intervene, upon a
|
0004| showing that the action relates primarily to a dispute regarding
|
0005| the single mining operation and apply for such a change of venue.
|
0006| The district court shall grant a change of venue upon a showing
|
0007| that the action relates primarily to a dispute regarding the
|
0008| subject single mining operation and a showing that a forum non
|
0009| conveniens analysis suggests that the location of the mining
|
0010| operation is a superior venue.
|
0011| D. In an action brought pursuant to this section, the
|
0012| department of environment, the energy, minerals and natural
|
0013| resources department or the commission, if not a party, may
|
0014| intervene.
|
0015| E. The court, in issuing a final order in an action
|
0016| brought pursuant to this section, may award costs of litigation,
|
0017| including [attorneys'] attorney and expert witness fees, to a
|
0018| party whenever the court determines such award is appropriate.
|
0019| The court may, if a temporary injunction or preliminary injunction
|
0020| is sought, require the filing of a bond or equivalent security in
|
0021| accordance with the rules of civil procedure."
|
0022|
|
0023|
|
0024|
|
0025| FORTY-THIRD LEGISLATURE
|
0001| FIRST SESSION, 1997
|
0002|
|
0003|
|
0004| March 17, 1997
|
0005|
|
0006| Mr. President:
|
0007|
|
0008| Your CONSERVATION COMMITTEE, to whom has been referred
|
0009|
|
0010| HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE
|
0011| SUBSTITUTE FOR HOUSE BILL 1095
|
0012|
|
0013| has had it under consideration and reports same with recommendation
|
0014| that it DO PASS.
|
0015|
|
0016| Respectfully submitted,
|
0017|
|
0018|
|
0019|
|
0020| __________________________________
|
0021| Michael S. Sanchez, Chairman
|
0022|
|
0023|
|
0024|
|
0025| Adopted_______________________ Not Adopted_______________________
|
0001| (Chief Clerk) (Chief Clerk)
|
0002|
|
0003|
|
0004|
|
0005| Date ________________________
|
0006|
|
0007|
|
0008| The roll call vote was 6 For 0 Against
|
0009| Yes: 6
|
0010| No: None
|
0011| Excused: Eisenstadt, Griego, Kysar, Macias
|
0012| Absent: None
|
0013|
|
0014|
|
0015| H1095C01
|
0016|
|