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