surface coal mining operations.

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A. Any permit issued under the Surface Mining Act to conduct surface coal mining operations shall require that the surface coal mining operations meet all applicable performance standards of that act, and such other requirements as the commission shall promulgate by regulation.

B. General performance standards shall be promulgated by regulation of the commission and shall be applicable to all surface coal mining and reclamation operations and shall require the operator as a minimum to:

(1)     conduct surface coal mining operations so as to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future through surface coal mining can be minimized;

(2)     restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so long as such use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water dimunition or pollution, and the permit applicant’s declared proposed land use following reclamation is not deemed to be impractical and unreasonable, to be inconsistent with applicable land use policies and plans promulgated by the legislature or any political subdivision, or planning districts established by the legislature, to involve unreasonable delay in implementation, or to be violative of federal, state or local law;

(3)     except as provided in Subsection C of this section with respect to all surface coal mining operations, backfill compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles and depressions eliminated (unless small depressions are needed in order to retain moisture to assist revegetation or as otherwise authorized pursuant to the Surface Mining Act). Provided, that in surface coal mining which is carried out at the same location over a substantial period of time where the operation transects the coal deposit, and the thickness of the coal deposits relative to the volume of the overburden is large and where the operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade and compact, where advisable, using all available overburden and other spoil and waste materials to attain the lowest practicable grade but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region; and provided further, that in surface coal mining where the volume of overburden is large relative to the thickness of the coal deposit and where the operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the operator shall, after restoring the approximate contour, backfill, grade and compact, where advisable, the excess overburden and other spoil and waste materials to attain the lowest grade but not more than the angle of repose, and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with the surrounding region. Such overburden or spoil shall be shaped and graded in such a way as to prevent slides, erosion and water pollution and shall be revegetated in accordance with the requirements of the Surface Mining Act;

(4)     stabilize and protect all surface areas including spoil piles affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution;

(5)     remove the topsoil from the land in a separate layer, replace it on the backfill area, or, if not utilized immediately, segregate it in a separate pile from other spoil and when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful cover by quick growing plant or other means thereafter so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material and is in a usable condition for sustaining vegetation when restored during reclamation, except if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate and preserve in a like manner such other strata which are best able to support vegetation;

(6)     restore the topsoil or the best available subsoil which is best able to support vegetation;

(7)     for all prime farmlands to be mined and reclaimed, specifications for soil removal, storage, replacement and reconstruction shall be established by regulation of the commission after considering specifications established by the secretary of the United States department of agriculture, and the operator shall, as a minimum be required to:

(a) segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a greater productive capacity; and if not utilized immediately, stockpile this material separately from other soil and provide needed protection from wind and water erosion contamination by other acid or toxic material;

(b) segregate the B horizon of the natural soil, or underlying C horizons or other strata, or a combination of such horizons or other strata that are shown to be both texturally and chemically suitable for plant growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root zone of comparable depth and quality to that which existed in the natural soil; and if not utilized immediately, stockpile this material separately from other spoil and provide needed protection from wind and water erosion or contamination by other acid or toxic material;

(c) replace and regrade the root zone material described in Subparagraph (b) of this paragraph with proper compaction and uniform depth over the regraded spoil material; and

(d) redistribute and grade in a uniform manner the surface soil horizon described in Subparagraph (a) of this paragraph;

(8)     create, if authorized in the approved mining and reclamation plan and permit and by the state engineer, permanent impoundments of water on mining sites as part of reclamation activities only when it is adequately demonstrated that:

(a) the size of the impoundment is adequate for its intended purposes; (b) the impoundment dam construction will be so designed as to achieve necessary stability with an adequate margin of safety compatible with that of structures constructed under 16 U.S.C. § 1006;

(c) the quality of impounded water will be suitable on a permanent basis for its intended use and that discharges from the impoundment will not degrade the water quality below water quality standards established pursuant to applicable federal and state law in the receiving stream;

use;

(d) the level of water will be reasonably stable if necessary for the intended (e) final grading will provide adequate safety and access for proposed water users; and

(f) such water impoundments will not result in the diminution of the quality or quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational or domestic uses;

(9)     conduct any augering operation associated with surface mining in a manner to maximize recoverability of mineral reserves remaining after the operation and reclamation are complete, and seal all auger holes with an impervious and noncombustible material in order to prevent drainage, unless the director determines that the resulting impoundment of water in such auger holes may create a hazard to the environment or the public health or safety. Provided, that the director may prohibit augering if necessary to maximize the utilization, recoverability or conservation of the solid fuel resources or to protect against adverse water quality impacts;

(10)    minimize the disturbances to the prevailing hydrologic regime specified in Subsection B of Section 14 [69-25A-14 N.M. Stat. Ann.] of the Surface Mining Act at the mine site and in associated off-site areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by:

(a) avoiding acid or other toxic mine drainage by such measures as, but not limited to: 1) preventing or removing water from contact with toxic producing deposits; 2) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses; and 3) casing, sealing or otherwise managing boreholes, shafts and wells to keep acid or other toxic drainage from entering ground and surface waters;

(b) conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by state or federal law;

(c) constructing any siltation structures pursuant to Subparagraph (b) of this paragraph prior to commencement of surface coal mining operations, such structures to be certified by a qualified professional engineer registered in New Mexico, to be constructed as designed and as approved in the reclamation plan; provided that such siltation structure shall, if otherwise required by state law, be approved by the state engineer;

(d) cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the director;

(e) restoring recharge capacity of the mined area to approximate premining conditions;

mines;

(f) avoiding channel deepening or enlargement the discharge of water from (g) preserving throughout the mining and reclamation process in operations requiring the essential hydrologic functions of alluvial valley floors in the arid and semiarid areas of New Mexico; and

(h) such other actions as promulgated by regulation of the commission;

(11)    with respect to surface disposal of mine wastes, tailings, coal processing wastes and other wastes in areas other than the mine workings or excavations, stabilize all waste piles in designated areas through construction in compacted layers including the use of incombustible and impervious materials if necessary and assure that the final contour of the waste pile will be compatible with natural surroundings and that the site can and will be stabilized and revegetated according to the provisions of the Surface Mining Act;

(12)    refrain from surface coal mining within five hundred feet from active and abandoned underground mines in order to prevent breakthroughs and to protect health and safety of miners. Provided, that the director shall permit an operator to mine near, through or partially through an abandoned underground mine or closer to an active underground mine if: the nature, timing and sequencing of the approximate coincidence of specific surface mine activities with specific underground mine activities are jointly approved by the director and the state mine inspector; and such operations will result in improved resource recovery, abatement of water pollution or elimination of hazards to the health and safety of the public;

(13)    design, locate, construct, operate, maintain, enlarge, modify and remove or abandon, in accordance with the standard and criteria established by regulation of the commission, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes or other liquid and solid wastes, and used either temporarily or permanently as dams or embankments;

(14)    insure that all debris, acid-forming materials, toxic materials, or materials constituting a fire hazard are treated or buried and compacted or otherwise disposed of in a manner designed to prevent contamination of ground or surface waters and that contingency plans are developed to prevent sustained combustion;

(15)    insure that explosives are used only in accordance with existing state and federal law and the regulations promulgated by the commission, which shall include provisions to:

(a) provide adequate advance written notice to local governments and residents who might be affected by the use of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half mile of the proposed blasting site and by providing daily notice to resident/occupiers in such area prior to any blasting;

(b) maintain for a period of at least three years and make available for public inspection upon request a log detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole, and the order and length of delay in the blasts;

(c) limit the type of explosives and detonating equipment and the size, timing and frequency of blasts based upon the physical conditions of the site so as to prevent: injury to persons; damage to public and private property outside the permit area; adverse impacts on any underground mine; and change in the course, channel or availability of ground or surface water outside the permit area;

(d) require that all blasting operations be conducted by trained and competent persons as certified and examined by the director pursuant to regulations promulgated by the commission with the written concurrence of the state mine inspector;

(e) provide that upon the request of a resident or owner of a man-made dwelling or structure within one-half mile of any portion of the permitted area the applicant or permittee shall conduct a preblasting survey of such structures and submit the survey to the director and a copy to the resident or owner making the request. The area of the survey shall be decided by the director;

(16)    insure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface coal mining operations. Provided, that where the applicant proposes to combine surface mining operations with underground mining operations to assure maximum practical recovery of the mineral resource, the director may grant a variance for specific areas within the reclamation plan from the requirement that reclamation efforts proceed as contemporaneously as practicable to permit underground mining operations prior to reclamation:

(a) if the director finds in writing that: 1) the applicant has presented, as a part of the permit application, specific, feasible plans for the proposed underground mining operations; 2) the proposed underground mining operations are necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple disturbance of the surface; 3) the applicant has satisfactorily demonstrated that the plan for the underground mining operation conforms to requirements for underground mining in New Mexico and that permits necessary for the underground mining operations have been or will be issued by the director as a condition precedent to commencement of underground mining; 4) the areas proposed for the variance have been shown by the applicant to be necessary for the implementing of the proposed underground mining operations; 5) no substantial adverse environmental damage, either on-site or off-site, will result from the delay in completion of reclamation as required by the Surface Mining Act; and 6) provisions for the off-site storage of spoil will comply with Paragraph (22) of this subsection;

(b) if the commission has promulgated specific regulations to govern the granting of such variances in accordance with the provisions of this paragraph and the director has imposed such additional requirements as he deems necessary;

(c) if variances granted under the provisions of this subsection are to be reviewed by the director not more than three years from either the date of issuance of the permit or the date of approval of the variance; and

(d) if liability under the bond filed by the applicant with the director pursuant to Section 13 [69-25A-13 N.M. Stat. Ann.] of the Surface Mining Act shall be for the duration of the underground mining operations and until the requirements of Paragraph (13) of this subsection and Section 23 [69-25A-23 N.M. Stat. Ann.] of the Surface Mining Act have been fully complied with;

(17)    insure that the construction, maintenance and postmining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water or damage to fish or wildlife or their habitat or public or private property;

(18)    refrain from the construction of roads or other access ways up a stream bed or drainage channel or in such proximity to such channel so as to seriously alter the normal flow of water;

(19)    establish on the regraded areas, and all other lands affected, a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan;

(20)    assume the responsibility for successful revegetation as required by Paragraph (19) of this subsection, for a period of five full years after the last year of augmented seeding, fertilizing, irrigation or other work in order to assure compliance with Paragraph (19) of this subsection, except in those areas or regions of New Mexico where the annual average precipitation is twenty-six inches or less, then the operator’s assumption of responsibility and liability will extend for a period of ten full years after the last year of augmented seeding, fertilizing, irrigation or other work. Provided, that when the director approves a long-term intensive agricultural postmining land use, the applicable five- or ten-year period of responsibility for revegetation shall commence at the date of initial planting for such long-term intensive agricultural postmining land use. Provided further, that when the director issues a written finding approving a long-term, intensive, agricultural postmining land use as part of the mining and reclamation plan, the director may grant exception to the provisions of Paragraph (19) of this subsection;

(21)    protect off-site areas from slides or damage occurring during the surface coal mining and reclamation operations, and not deposit spoil material or locate any part of the operations or waste accumulations outside the permit area;

(22)    place all excess spoil material resulting from surface coal mining and reclamation activities in such a manner that:

(a) spoil is transported and placed in a controlled manner in position for concurrent compaction and in such a way to assure mass stability and to prevent mass movement;

(b) the areas of disposal are within the bonded permit areas and all organic matter shall be removed immediately prior to spoil placement;

(c) appropriate surface and internal drainage systems and diversion ditches are used so as to prevent spoil erosion and movement;

(d) the disposal area does not contain springs, natural water courses or wet weather seeps unless lateral drains are constructed from the wet areas to the main underdrains in such a manner that filtration of the water into the spoil pile will be prevented;

(e) if placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the director, the spoil could be placed in compliance with all the requirements of the Surface Mining Act, and shall be placed, where possible, upon, or above, a natural terrace, bench or berm, if such placement provides additional stability and prevents mass movement;

(f) where the toe of the spoil rests on a downslope, a rock toe buttress, of sufficient size to prevent mass movement, is constructed;

(g) the final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses;

(h) design of the spoil disposal area is certified by a qualified professional engineer registered in New Mexico to be in conformance with professional standards; and

(i) all other provisions of the Surface Mining Act are met;

(23)    meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of the Surface Mining Act, taking into consideration the physical, climatological and other characteristics of the site;

(24)    to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife and related environmental values, and achieve enhancement of such resources where practicable; and

(25)    provide for an undisturbed natural barrier beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for such distance as the director shall determine to be necessary to be retained in place as a barrier to slides and erosion.

C. (1) Where an applicant meets the requirements of Paragraphs (2) and (3) of this subsection a permit without regard to the requirement to restore to approximate original contour set forth in Paragraph (3) of Subsection B or Paragraphs (2) and (3) of Subsection D of this section may be granted for the surface mining of coal where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge or hill (except as provided in Subparagraph (a) of Paragraph (3) of this subsection) by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, and capable of supporting postmining uses in accord with the requirements of this subsection.

(2)     In cases where an industrial, commercial, agricultural, residential or public facility (including recreational facilities) use is proposed for the postmining use of the affected land, the director may grant a permit for a surface mining operation of the nature described in Paragraph (1) of this subsection where:

(a) after consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed to constitute an equal or better economic or public use of the affected land, as compared with premining use;

(b) the applicant presents specific plans for the proposed postmining land use and appropriate assurances that such use will be: 1) compatible with adjacent land uses; 2) obtainable according to data regarding expected need and market; 3) assured of investment in necessary public facilities; 4) supported by commitments from public agencies where appropriate; 5) practicable with respect to private financial capability for completion of the proposed use; 6) planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and 7) designed by a professional engineer registered in New Mexico in conformance with professional standards established to assure the stability, drainage and configuration necessary for the intended use of the site;

(c) the proposed use would be consistent with adjacent land uses, and existing state and local land use plans and programs promulgated by the legislature or any political subdivision, or planning districts established by the legislature;

(d) the director provides the governing bodies of the municipality and county in which the land is located and any state or federal agency which the director, in his discretion, determines to have an interest in the proposed use, an opportunity of not more than sixty days to review and comment on the proposed use; and

(e) all other requirements of the Surface Mining Act will be met.

that:

(3)     In granting any permit pursuant to this subsection the director shall require (a) the toe of the lowest coal seam and the overburden associated with it are retained in place as a barrier to slides and erosion;

(b) the reclaimed area is stable;

(c) the resulting plateau or rolling contour drains inward from the outslopes except as specified points;

(d) no damage will be done to natural water courses;

(e) spoil will be placed on the mountaintop bench as is necessary to achieve the planned postmining land use. Provided, that all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of Paragraph (22) of Subsection B of this section; and

(f) insure stability of the spoil retained on the mountaintop and meet the other requirements of the Surface Mining Act.

(4)     The commission shall promulgate specific regulations to govern the granting of permits in accord with the provisions of this subsection, and may impose such additional requirements as it deems necessary consistent with the purposes of [the] Surface Mining Act.

(5)     All permits granted under the provisions of this subsection shall be reviewed not more than three years from the date of issuance of the permit, unless the applicant affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan.

D. The following performance standards shall be applicable to steep-slope surface coal mining and shall be in addition to those general performance standards required by this section. Provided, that the provisions of this subsection shall not apply to those situations in which an operator is mining on flat or gently rolling terrain, on which an occasional steep slope is encountered through which the mining operation is to proceed, leaving a plain or predominantly flat area or where an operator is in compliance with provisions of Subsection C of this section:

(1)     insure that when performing surface coal mining on steep slopes, no debris, abandoned or disabled equipment, spoil material or waste mineral matter be placed on the downslope below the bench or mining cut. Provided, that the spoil material in excess of that required for the reconstruction of the approximate original contour under the provisions of Paragraph (3) of Subsection B of this section or Paragraph (2) of this subsection shall be permanently stored pursuant to Paragraph (22) of Subsection B of this section;

(2)     complete backfilling with spoil material shall be required to cover completely the highwall and return the site to the approximate original contour, which material will maintain stability following mining and reclamation;

(3)     the operator may not disturb land above the top of the highwall unless the director finds that such disturbance will facilitate compliance with the environmental protection standards of this section. Provided, that the land disturbed above the highwall shall be limited to that amount necessary to facilitate the compliance;

(4)     for the purposes of this subsection, the term “steep slope” is any slope above twenty degrees or such lesser slope as may be defined by the director after consideration of soil, climate and other characteristics of the region or the state.

E. (1) The director may permit variances for the purposes set forth in Paragraph (3) of this subsection, provided that the watershed control of the area is improved; and further provided complete backfilling with spoil material shall be required to cover completely the highwall which material will maintain stability following mining and reclamation.

(2)     Where an applicant meets the requirements of Paragraphs (3) and (4) of this subsection a variance from the requirement to restore to approximate original contour set forth in Paragraph (2) of Subsection D of this section may be granted for the surface mining of coal where the owner of the surface knowingly requests in writing, as a part of the permit application that such a variance be granted so as to render the land, after reclamation, suitable for an industrial commercial, residential or public use, including recreational facilities, in accord with the further provisions of Paragraphs (3) and (4) of this subsection.

(3)     (a) After consultation with the appropriate land use planning agencies of the municipality, if any, and the country in which mining is to occur, the potential use of the affected land is deemed to constitute an equal or better economic or public use;

(b) is designed and certified by a qualified professional engineer registered in New Mexico in conformance with professional standards established to assure the stability, drainage and configuration necessary for the intended use of the site; and

(c) after approval of the soil and water conservation division of the natural resources department the watershed of the affected land is deemed to be improved.

(4)     In granting a variance pursuant to this subsection, the director shall require that only such amount of spoil will be placed off the mine bench as is necessary to achieve the planned postmining land use, insure stability of the spoil retained on the bench, meet all other requirements of the Surface Mining Act, and all spoil placement off the mine bench must comply with Paragraph (22) of Subsection B of this section.

(5)     The commission shall promulgate specific regulations to govern the granting of variances in accord with the provisions of this subsection, and may impose such additional requirements as it deems necessary.

(6)     All exceptions granted under the provisions of this subsection shall be reviewed not more than three years from the date of issuance of the permit, unless the permittee affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the reclamation plan.