0001| HOUSE BILL 449
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| JEANNETTE WALLACE
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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 THE NEW MEXICO MINING ACT; LIMITING THE AUTHORITY
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0012| OF THE MINING COMMISSION TO APPROVE PERMIT MODIFICATIONS FOR
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0013| NEW EXCAVATION UNITS UNDER CERTAIN CIRCUMSTANCES.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 69-36-7 NMSA 1978 (being Laws 1993,
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0017| Chapter 315, Section 7, as amended) is amended to read:
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0018| "69-36-7. COMMISSION--DUTIES.--The commission shall:
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0019| A. before June 18, 1994, adopt and file reasonable
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0020| regulations consistent with the purposes and intent of the New
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0021| Mexico Mining Act necessary to implement the provisions of the
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0022| New Mexico Mining Act, including regulations that:
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0023| (1) consider the economic and environmental
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0024| effects of their implementation;
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0025| (2) require permitting of all new and
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0001| existing mining operations and exploration; and
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0002| (3) require annual reporting of production
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0003| information to the commission, which shall be kept
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0004| confidential if otherwise required by law;
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0005| B. adopt regulations for new mining operations
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0006| that allow the director to select a qualified expert who may:
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0007| (1) review and comment to the director on the
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0008| adequacy of baseline data gathered prior to submission of the
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0009| permit application for use in the permit application process;
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0010| (2) recommend to the director additional
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0011| baseline data that may be necessary in the review of the
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0012| proposed mining activity;
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0013| (3) recommend to the director methodology
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0014| guidelines to be followed in the collection of all baseline
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0015| data; and
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0016| (4) review and comment on the permit
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0017| application;
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0018| C. adopt regulations that require and provide for
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0019| the issuance and renewal of permits for new and existing
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0020| mining operations and exploration and that establish schedules
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0021| to bring existing mining operations into compliance with the
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0022| requirements of the New Mexico Mining Act; provided the term
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0023| of a permit for a new mining operation shall not exceed twenty
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0024| years and the term of renewals of permits for new mining
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0025| operations shall not exceed ten years;
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0001| D. adopt regulations that provide for permit
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0002| modifications. The commission shall establish criteria to
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0003| determine which permit modifications may have significant
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0004| environmental impact. Modifications that the director
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0005| determines will have significant environmental impact shall
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0006| require public notice and an opportunity for public hearing
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0007| pursuant to Subsection K of this section. A permit
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0008| modification to the permit for an existing mining operation
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0009| shall be obtained for each new discrete processing, leaching,
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0010| excavation, storage or stockpile unit located within the
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0011| permit area of an existing mining operation and not identified
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0012| in the permit of an existing mining operation and for each
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0013| expansion of such a unit identified in the permit for an
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0014| existing mining operation that exceeds the design limits
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0015| specified in the permit. The regulations shall require that
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0016| permit modifications for such units be approved if the
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0017| director determines that the unit will:
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0018| (1) comply with the regulations regarding
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0019| permit modifications;
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0020| (2) incorporate the requirements of
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0021| Paragraphs (1), (2), (4), (5) and (6) of Subsection H of this
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0022| section; [and]
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0023| (3) be sited and constructed in a manner that
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0024| facilitates, to the maximum extent practicable,
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0025| contemporaneous reclamation consistent with the closeout plan;
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0001| and
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0002| (4) comply with the regulations adopted
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0003| pursuant to the Subsections H, I and P of this section if the
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0004| modification is for a new surface excavation unit located more
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0005| than the maximum new mining unit distance from an existing
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0006| surface excavation. As used in this paragraph, "the maximum
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0007| new mining unit distance" means the distance calculated by
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0008| multiplying the average diameter of the existing surface
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0009| excavation by five;
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0010| E. adopt regulations that require new and existing
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0011| mining operations to obtain and maintain permits for standby
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0012| status. A permit for standby status shall be issued for a
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0013| maximum term of five years; provided that upon application the
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0014| director may renew a permit for standby status for no more
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0015| than three additional five-year terms. The regulations shall
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0016| require that before a permit for standby status is issued or
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0017| renewed an owner or operator shall:
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0018| (1) identify the projected term of standby
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0019| status for each unit of the new or existing mining operation;
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0020| (2) take measures that reduce, to the extent
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0021| practicable, the formation of acid and other toxic drainage to
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0022| prevent releases that cause federal or state environmental
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0023| standards to be exceeded;
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0024| (3) meet applicable federal and state
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0025| environmental standards and regulations during the period of
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0001| standby status;
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0002| (4) stabilize waste and storage units, leach
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0003| piles, impoundments and pits during the term of standby
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0004| status;
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0005| (5) comply with applicable requirements of
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0006| the New Mexico Mining Act and the regulations adopted pursuant
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0007| to that act; and
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0008| (6) provide an analysis of the economic
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0009| viability of each unit proposed for standby status;
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0010| F. establish by regulation closeout plan
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0011| requirements for existing mining operations that incorporate
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0012| site-specific characteristics, including consideration of
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0013| disturbances from previous mining operations, and that take
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0014| into account the mining method utilized;
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0015| G. establish by regulation a procedure for the
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0016| issuance of a permit for an existing mining operation and for
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0017| modifications of that permit to incorporate approved closeout
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0018| plans or portions of closeout plans and financial assurance
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0019| requirements for performance of the closeout plans. The
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0020| permit shall describe the permit area of the existing mining
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0021| operation and the design limits of units of the existing
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0022| mining operation based upon the site assessment submitted by
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0023| the operator. The permit shall contain a schedule for
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0024| completion of a closeout plan. The permit shall thereafter be
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0025| modified to incorporate the approved closeout plan or portions
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0001| of the closeout plan once financial assurance has been
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0002| provided for completion of the closeout plan or the approved
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0003| portions of the closeout plan. The permit may be modified for
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0004| new mining units, expansions beyond the design limits of a
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0005| unit at an existing mining operation or standby status;
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0006| H. establish by regulation permit and reclamation
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0007| requirements for new mining operations that incorporate site-
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0008| specific characteristics. These requirements shall, at a
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0009| minimum:
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0010| (1) require that new mining operations be
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0011| designed and operated using the most appropriate technology
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0012| and the best management practices;
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0013| (2) [assure] ensure protection of human
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0014| health and safety, the environment, wildlife and domestic
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0015| animals;
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0016| (3) include backfilling or partial
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0017| backfilling only when necessary to achieve reclamation
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0018| objectives that cannot be accomplished through other
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0019| mitigation measures;
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0020| (4) require approval by the director that the
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0021| permit area will achieve a self-sustaining ecosystem
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0022| appropriate for the life zone of the surrounding areas
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0023| following closure unless conflicting with the approved post-
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0024| mining land use;
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0025| (5) require that new mining operations be
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0001| designed in a manner that incorporates measures to reduce, to
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0002| the extent practicable, the formation of acid and other toxic
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0003| drainage that may otherwise occur following closure to prevent
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0004| releases that cause federal or state standards to be exceeded;
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0005| (6) require that nonpoint source surface
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0006| releases of acid or other toxic substances shall be contained
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0007| within the permit area;
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0008| (7) require that all waste, waste management
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0009| units, pits, heaps, pads and any other storage piles are
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0010| designed, sited and constructed in a manner that
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0011| [facilitates] facilitate, to the maximum extent
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0012| practicable, contemporaneous reclamation and are consistent
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0013| with the new mining operation's approved reclamation plan; and
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0014| (8) where sufficient topsoil is present, take
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0015| measures to preserve it from erosion or contamination and
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0016| [assure] ensure that it is in a usable condition for
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0017| sustaining vegetation when needed;
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0018| I. adopt regulations that establish a permit
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0019| application process for new mining operations that includes:
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0020| (1) disclosure of ownership and controlling
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0021| interests in the new mining operation or submission of the
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0022| applicant's most recent form 10K required by the federal
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0023| securities exchange commission;
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0024| (2) a statement of all mining operations
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0025| within the United States owned, operated or directly
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0001| controlled by the applicant, owner or operator and by persons
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0002| or entities that directly control the applicant and the names
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0003| and the addresses of regulatory agencies with jurisdiction
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0004| over the environmental aspects of those operations and that
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0005| could provide a compliance history for those operations
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0006| [and] over the preceding ten years. The operator shall
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0007| assist the applicant in obtaining compliance history
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0008| information;
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0009| (3) a description of the type and method of
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0010| mining and the engineering techniques proposed;
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0011| (4) the anticipated starting and termination
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0012| dates of each phase of the new mining operation and the number
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0013| of acres of land to be affected;
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0014| (5) the names of all affected watersheds, the
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0015| location of any perennial, ephemeral or intermittent surface
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0016| stream or tributary into which surface or pit drainage will be
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0017| discharged or may possibly be expected to reach and the
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0018| location of any spring within the permit area and the affected
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0019| area;
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0020| (6) a determination of the probable
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0021| hydrologic consequences of the new mining operation and
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0022| reclamation, both on and off the permit area, with respect to
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0023| the hydrologic regime, quantity and quality of surface and
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0024| ground water systems, including the dissolved and suspended
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0025| solids under seasonal flow conditions;
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0001| (7) cross sections or plans of the permit
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0002| area depicting:
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0003| (a) the nature and depth of the various
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0004| formations of overburden;
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0005| (b) the location of subsurface water,
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0006| if encountered, and its quality;
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0007| (c) the nature and location of any ore
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0008| body to be mined;
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0009| (d) the location of aquifers and
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0010| springs;
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0011| (e) the estimated position and flow of
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0012| the water table;
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0013| (f) the proposed location of waste
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0014| rock, tailings, stockpiles, heaps, pads and topsoil
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0015| preservation areas; and
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0016| (g) premining vegetation and wildlife
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0017| habitat features present at the site;
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0018| (8) the potential for geochemical alteration
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0019| of overburden, the ore body and other materials present within
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0020| the permit area;
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0021| (9) a reclamation plan that includes a
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0022| detailed description of the proposed post-mining land use and
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0023| how that use is to be achieved; and
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0024| (10) premining baseline data as required by
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0025| regulations adopted by the commission;
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0001| J. adopt regulations to coordinate the roles of
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0002| permitting agencies involved in regulating activities related
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0003| to new and existing mining operations and exploration,
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0004| including regulatory requirements, to avoid duplicative and
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0005| conflicting administration of the permitting process and other
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0006| requirements;
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0007| K. except for regulations enacted pursuant to
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0008| Subsection L of this section, adopt regulations that ensure
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0009| that the public and permitting agencies receive notice of each
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0010| application for issuance, renewal or revision of a permit for
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0011| a new or existing mining operation; for standby status or
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0012| exploration; or for a variance or an application for release
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0013| of financial assurance and any inspection prior to the release
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0014| of financial assurance, including a provision that no action
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0015| shall be taken on any application until an opportunity for a
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0016| public hearing held in the locality of the operation is
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0017| provided and that all interested persons shall be given a
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0018| reasonable chance to submit data, views or arguments orally or
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0019| in writing and to examine witnesses testifying at the hearing.
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0020| An additional opportunity for a public hearing may be provided
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0021| if the applicant makes substantial changes in the proposed
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0022| action, if there are significant new circumstances or
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0023| information bearing on the proposed action or if the applicant
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0024| proposes to substantially increase the scale or substantially
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0025| change the nature of the proposed action and there is public
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0001| interest and a request for a public hearing. These
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0002| regulations shall require at a minimum that the applicant for
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0003| issuance, renewal or revisions of a permit or a variance or an
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0004| application for release of financial assurance and any
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0005| inspection prior to release of financial assurance shall
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0006| provide to the director at the time of filing the application
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0007| with the director proof that notice of the application and of
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0008| the procedure for requesting a public hearing has been:
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0009| (1) provided by certified mail to the owners
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0010| of record, as shown by the most recent property tax schedule,
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0011| of all properties within one-half mile of the property on
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0012| which the mining operation is located or is proposed to be
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0013| located;
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0014| (2) provided by certified mail to all
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0015| municipalities and counties within a ten-mile radius of the
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0016| property on which the mining operation is or will be located;
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0017| (3) published once in a newspaper of general
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0018| circulation in each county in which the property on which the
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0019| mining operation is or will be located; provided that this
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0020| notice shall appear in either the classified or legal
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0021| advertisements section of the newspaper and at one other place
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0022| in the newspaper calculated to give the general public the
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0023| most effective notice and, when appropriate, shall be printed
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0024| in both English and Spanish;
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0025| (4) posted in at least four publicly
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0001| accessible and conspicuous places, including the entrance to
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0002| the new or existing mining operation if that entrance is
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0003| publicly accessible and conspicuous;
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0004| (5) mailed to all persons who have made a
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0005| written request to the director for notice of this
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0006| application; and
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0007| (6) mailed by certified mail to all persons
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0008| on a list maintained by the director of individuals and
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0009| organizations who have requested notice of applications under
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0010| [this] the New Mexico Mining Act. If the application is
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0011| determined to be administratively complete by the director,
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0012| the applicant shall provide to the director timely proof that
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0013| notice of that determination has been provided by first class
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0014| mail to everyone who has indicated to the applicant in writing
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0015| that they desire information regarding the application and to
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0016| a list maintained by the director of individuals and
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0017| organizations who have requested notice of applications under
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0018| [this] that act;
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0019| L. adopt regulations to provide for permits,
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0020| without notice and hearing, to address mining operations that
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0021| have minimal impact on the environment; provided that such
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0022| permits shall require general plans and shall otherwise reduce
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0023| the permitting requirements of the New Mexico Mining Act;
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0024| M. establish by regulation a schedule of annual
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0025| administrative and permit fees, which shall equal and not
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0001| exceed the estimated costs of administration, implementation,
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0002| enforcement, investigation and permitting pursuant to the
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0003| provisions of the New Mexico Mining Act. The size of the
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0004| operation, anticipated inspection frequency and other factors
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0005| deemed relevant by the commission shall be considered in the
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0006| determination of the fees. The fees established pursuant to
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0007| this subsection shall be deposited in the mining act fund;
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0008| N. establish by regulation a continuing process of
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0009| review of mining and reclamation practices in New Mexico that
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0010| provides for periodic review and amendment of regulations and
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0011| procedures to provide for the protection of the environment
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0012| and consider the economic effects of the regulations;
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0013| O. adopt regulations governing the provision of
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0014| variances issued by the director stating the procedures for
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0015| seeking a variance, including provisions for public notice and
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0016| an opportunity for a hearing in the locality where the
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0017| variance will be operative and the limitations on provision
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0018| of variances, and requiring the petitioner to present
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0019| sufficient evidence to prove that failure to grant a variance
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0020| will impose an undue economic burden and that granting the
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0021| variance will not result in a significant threat to human
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0022| health, safety or the environment;
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0023| P. provide by regulation that, prior to the
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0024| issuance of any permit for a new mining operation pursuant to
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0025| the provisions of the New Mexico Mining Act, the permit
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0001| applicant or operator:
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0002| (1) shall provide evidence to the director
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0003| that other applicable state and federal permits required to be
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0004| obtained by the new or existing mining operation either have
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0005| been or will be issued before the activities subject to those
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0006| permits begin; and
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0007| (2) shall provide to the director a written
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0008| determination from the secretary of environment stating that
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0009| the permit applicant has demonstrated that the activities to
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0010| be permitted or authorized will be expected to achieve
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0011| compliance with all applicable air, water quality and other
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0012| environmental standards if carried out as described;
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0013| Q. require by regulation that the applicant file
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0014| with the director, prior to the issuance of a permit,
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0015| financial assurance. The amount of the financial assurance
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0016| shall be sufficient to [assure] ensure the completion of
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0017| the performance requirements of the permit, including closure
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0018| and reclamation, if the work had to be performed by the
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0019| director or a third party contractor and shall include
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0020| periodic review to account for any inflationary increases and
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0021| anticipated changes in reclamation or closure costs. The
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0022| regulations shall specify that financial requirements shall
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0023| neither duplicate nor be less comprehensive than the federal
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0024| financial requirements. The form and amount of the financial
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0025| assurance shall be subject to the approval of the director as
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0001| part of the permit application; provided, financial
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0002| assurance does not include any type or variety of self-
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0003| guarantee or self-insurance;
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0004| R. require by regulation that the permittee may
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0005| file an application with the director for the release of all
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0006| or part of the permittee's financial assurance. The permittee
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0007| shall not file an application for release of financial
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0008| assurance more than once per year for each mining operation.
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0009| The application shall describe the reclamation measures
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0010| completed and shall contain an estimate of the costs of
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0011| reclamation measures that have not been completed. Prior to
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0012| release of any portion of the permittee's financial assurance,
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0013| the director shall conduct an inspection and evaluation of the
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0014| reclamation work involved. The director shall notify persons
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0015| who have requested advance notice of the inspection.
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0016| Interested members of the public shall be allowed to be
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0017| present at the inspection of the reclamation work by the
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0018| director.
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0019| (1) The director may release in whole or in
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0020| part the financial assurance if the reclamation covered by the
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0021| financial assurance has been accomplished as required by the
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0022| New Mexico Mining Act; provided that the director shall retain
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0023| financial assurance at least equal to the approved estimated
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0024| costs of completing reclamation measures that have not been
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0025| completed; and provided further that for revegetated areas,
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0001| the director shall retain the amount of financial assurance
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0002| necessary for a third party to reestablish vegetation for a
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0003| period of twelve years after the last year of augmented
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0004| seeding, fertilizing, irrigation or other work, unless a post-
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0005| mining land use is achieved that is inconsistent with the
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0006| further need for revegetation. For new mining operations
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0007| only, no part of the financial assurance necessary for a third
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0008| party to reestablish vegetation shall be released so long as
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0009| the lands to which the release would be applicable are
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0010| contributing suspended solids above background levels to
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0011| that streamflow of intermittent and perennial streams.
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0012| (2) A person with an interest that is or will
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0013| be adversely affected by release of the financial assurance
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0014| may file, with the director within thirty days of the date of
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0015| the inspection, written objections to the proposed release
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0016| from financial assurance. If written objections are filed and
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0017| a hearing is requested, the director shall inform all the
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0018| interested parties of the time and place of the hearing at
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0019| least thirty days in advance of the public hearing, and hold a
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0020| public hearing in the locality of the new or existing mining
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0021| operation or exploration operation proposed for release from
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0022| financial assurance. The date, time and location of the
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0023| public hearing shall be advertised by the director in a
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0024| newspaper of general circulation in the locality for two
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0025| consecutive weeks, and all persons who have submitted a
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0001| written request in advance to the director to receive notices
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0002| of hearings shall be provided notice at least thirty days
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0003| prior to the hearing;
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0004| S. establish coordinated procedures that avoid
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0005| duplication for the inspection, monitoring and sampling of
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0006| air, soil and water and enforcement of applicable requirements
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0007| of the New Mexico Mining Act, regulations adopted pursuant to
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0008| that act and permit conditions for new and existing mining
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0009| operations and exploration. The regulations shall require, at
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0010| a minimum:
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0011| (1) inspections by the director occurring on
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0012| an irregular basis according to the following schedule:
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0013| (a) at least one inspection per month
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0014| when the mining operation is conducting significant
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0015| reclamation activities;
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0016| (b) at least two inspections per year
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0017| for active mining operations;
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0018| (c) at least one inspection per year on
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0019| inactive sites;
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0020| (d) at least one inspection per year
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0021| following completion of all significant reclamation activities
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0022| but prior to release of financial assurance; and
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0023| (e) mining operations having a minimal
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0024| impact on the environment and exploration operations will be
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0025| inspected on a schedule to be established by the commission;
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0001| (2) inspections shall occur without prior
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0002| notice to the permittee or his agents or employees except for
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0003| necessary on-site meetings with the permittee;
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0004| (3) when the director determines that a
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0005| condition or practice exists that violates a requirement of
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0006| the New Mexico Mining Act, a regulation adopted pursuant to
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0007| that act or a permit issued under that act, which condition,
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0008| practice or violation also creates an imminent danger to the
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0009| health or safety of the public or will cause significant
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0010| imminent environmental harm, the director shall immediately
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0011| order a cessation of the new or existing mining operation or
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0012| the exploration operation or the portion of that operation
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0013| relevant to the condition, practice or violation. The
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0014| cessation order shall remain in effect until the director
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0015| determines that the condition, practice or violation has been
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0016| abated or until modified, vacated or terminated by the
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0017| director or the commission;
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0018| (4) when the director determines that an
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0019| owner or operator is in violation of a requirement of the New
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0020| Mexico Mining Act, a regulation adopted pursuant to that act
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0021| or a permit issued pursuant to that act but the violation does
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0022| not create an imminent danger to the health or safety of the
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0023| public or will not cause significant imminent environmental
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0024| harm, the director shall issue a notice to the owner or
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0025| operator fixing a reasonable time, not to exceed sixty days,
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0001| for the abatement of the violation. If, upon expiration of
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0002| the period of time as originally fixed or subsequently
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0003| extended for good cause shown, the director finds that the
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0004| violation has not been abated, he shall immediately order a
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0005| cessation of new or existing mining operations or exploration
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0006| operations or the portion thereof relevant to the violation.
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0007| The cessation order shall remain in effect until the director
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0008| determines that the violation has been abated; and
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0009| (5) when the director determines that a
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0010| pattern of violations of the requirements of the New Mexico
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0011| Mining Act or of the regulations adopted pursuant to that act
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0012| or the permit required by that act exists or has existed and
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0013| if the director also finds that such violations are caused by
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0014| the unwarranted failure of the owner or operator to comply
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0015| with the requirements of that act, regulation or permit or
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0016| that such violations are willfully caused by the owner or
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0017| operator, the director shall immediately issue an order to the
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0018| owner or operator to show cause as to why the permit should
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0019| not be suspended or revoked;
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0020| T. provide for the transfer of a permit to a
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0021| successor operator, providing for release of the first
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0022| operator from obligations under the permit, including
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0023| financial assurance, following the approved assumption of such
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0024| obligations and financial assurance by the successor operator;
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0025| U. adopt regulations providing that the owner or
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0001| operator of an existing mining operation or a new mining
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0002| operation who has completed some reclamation measures prior to
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0003| the effective date of the regulations adopted pursuant to the
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0004| New Mexico Mining Act may apply for an inspection of those
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0005| reclamation measures and a release from further requirements
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0006| pursuant to that act for the reclaimed areas if, after an
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0007| inspection, the director determines that the reclamation
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0008| measures satisfy the requirements of that act and the
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0009| substantive requirements for reclamation pursuant to the
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0010| applicable regulatory standards; and
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0011| V. develop and adopt other regulations necessary
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0012| and appropriate to carry out the purposes and provisions of
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0013| the New Mexico Mining Act."
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0014|
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