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