N.M. Code R. § 19.10.3.304 – Minimal Impact New Mining Operations

A. A minimal impact new mining operation will not exceed 10 acres of disturbed land, or 40 acres of disturbed land in the case of dolomite, garnet, humate, perlite and zeolite operations that: (1) are located outside Bernalillo, Dona Ana and Santa Fe counties; and (2) are committed to perform concurrent reclamation of disturbed areas to the extent practicable. Pre-existing roads and reclaimed acres within the permit area will not be counted as part of the acreage limitation for a minimal impact new mining operation. Reclaimed, for this purpose, means all financial assurance has been released, except the amount held to re-establish vegetation pursuant to Subsection A of 19.10.12.1204 NMAC. Construction of roads and access ways, the types of disturbances, and the applicant's previous history of compliance with the act and 19.10 NMAC will be major factors in the director's determination of minimal impact status. In determining whether a proposed operation with between 10 and 40 acres of disturbed land is eligible for a minimal impact new mining permit, the director shall conduct a site visit that may include other agencies in accordance with Subsection I of 19.10.3.304 NMAC. Notwithstanding the frequency for inspections of minimal impact mining operations specified in Paragraph (4) of Subsection A of 19.10.11.1101 NMAC, if a minimal impact operation permit is issued under this subsection for more than 10 acres of disturbance, the director shall conduct on-site inspections at least once per year during the term of the permit.
B. Timing of applications and deadline for approval for minimal impact new mining operations must be in accordance with 19.10.6.601 NMAC.
C. An applicant for a minimal impact new mining operation permit shall submit six copies of a completed application on a form to be provided by the director. If the proposed operation is on federal land, then the information submitted to the federal land management agency may be submitted with the application in lieu of providing duplicative information on the form provided by the director. Any confidential information shall be submitted separately in accordance with Subsection B of 19.10.6.602 NMAC.
D. The application shall include the following information:
1. (1) the name and address of the applicant, and if different, the name and address of the owner of the operation and the land; a statement of the basis on which the applicant has the right to enter the property to conduct the mining and reclamation;
2. (2) the location of the proposed operation as shown on a topographic map which indicates the proposed permit area and gives the location of the following: the areas to be disturbed; perennial, intermittent and ephemeral streams; springs; wetlands, riparian areas, lakes and reservoirs; residences; existing and proposed roads; other access routes; support facilities; cemeteries; burial grounds; cultural resources listed on either the national register of historic places or the state register of cultural properties; pipelines; and oil, gas and water wells on and within 1/2 mile of the permit area;
3. (3) a listing of other environmental permits held by the applicant for other mining operations within the United States and any violations issued for non-compliance with those permits;
4. (4) a general description of the minerals sought, the methods of extraction, and any processing to be conducted on site; any chemicals to be used on site must be identified;
5. (5) an estimate of depth to ground water and total dissolved solids concentration;
6. (6) an explanation of why the proposed operation qualifies as a minimal impact operation in accordance with 19.10 NMAC;
7. (7) a general description of how the operation will meet the following performance standards:
  1. (a) the mining and reclamation operation shall be designed and operated using the most appropriate technology and best management practices;
  2. (b) the mining and reclamation operation shall assure protection of human health and safety, the environment, wildlife and domestic animals;
  3. (c) measures will be taken to safeguard the public from unauthorized entry into shafts, adits and tunnels and to prevent falls from highwalls or pit edges; depending on site-specific characteristics, the following measures shall be required:
    1. (i) closing shafts, adits or tunnels to prevent entry;
    2. (ii) posting warning signs, and restricting access to hazardous areas; and
    3. (iii) posting a sign at the main entrances giving a telephone number of a person to call in the event of emergencies;
  4. (d) the disturbed area shall not contribute suspended solids above background levels, or where applicable the water quality control commission's standards, to intermittent and perennial streams; and
  5. (e) mining and reclamation operations shall be conducted to control erosion;
8. (8) a general description of how the operation will be operated and reclaimed to a self-sustaining ecosystem appropriate for the life zone of the surrounding areas following closure unless conflicting with the approved post-mining land use;
9. (9) a list of other permits required for the operation, and the anticipated schedule for receipt of these; and
10. (10) information necessary to meet other requirements specified by the director which are necessary to meet the definition of "minimal impact mining operation" Paragraph (2) of Subsection M of 19.10.1.7 NMAC or achieve reclamation.
E. The director shall determine the amount of financial assurance appropriate for each operation based on the cost of reclaiming the site by a third party. Operations less than two acres total disturbance are not required to provide financial assurance.
F. The application must be accompanied by the permit fee as required by 19.10.2 NMAC and a proposal for the required financial assurance.
G. If the permit area includes state or federally-owned lands, no permit will be issued unless the appropriate land management agency has approved or acknowledged the proposed operation, if such approval or acknowledgement is required by the agency's rules.
H. The director shall, after determining that the application is complete, deliver copies of the application (except those parts of the application designated confidential under Subsection B of 19.10.6.602 NMAC provided, however, that the director shall include with the application a list of the parts withheld and will provide such parts on specific request) to the agencies listed in Subsection C of 19.10.6.605 which shall have 20 days in which to provide comments to the director. The director shall consider comments from these agencies in making his determination of eligibility for minimal impact status.
I. The director shall determine if an operation is eligible for a minimal impact operation permit. The director may conduct an evaluation or site visit which may include other agencies in making this determination for operations that do not exceed 10 acres of disturbance. In making this determination for operations with more than 10 acres of disturbance, the director shall conduct an on-site inspection which may include other agencies.
J. No permit for a minimal impact operation will be issued until the director finds the following:
1. (1) the application is complete and demonstrates the proposed operation will comply with the performance and reclamation standards and requirements of Paragraphs (6) through (8) of Subsection D of 19.10.3.304 NMAC;
2. (2) the applicant has paid the permit fee;
3. (3) the applicant has provided satisfactory financial assurance;
4. (4) the applicant, the operator or owner or any persons or entities directly controlled by the applicant, operator, owner or any persons or entities that directly control the applicant, operator or owner:
  1. (a) are not currently in violation of the terms of another permit issued by the division or in violation of any substantial environmental law or substantive regulation at a mining operation in the United States, which violation is unabated and is not the subject of appeal, and have not forfeited or had forfeited financial assurance required for any mining, reclamation or exploration permit in the United States; for purposes of this subparagraph, a substantial environmental law or substantive regulation is one which is intended to protect natural resources from degradation and does not include violations of record-keeping or reporting requirements; if a violation occurred prior to the initiation of a legal relationship between the permit applicant and the violator, it shall not be considered for this purpose; and
  2. (b) have not demonstrated a pattern of willful violations of the act or other New Mexico environmental statutes; if a violation occurred prior to the initiation of a legal relationship between the permit applicant and the violator, it shall not be considered for this purpose; and
5. (5) the applicant has signed a notarized statement that he agrees to comply with the requirements of the permit, 19.10 NMAC, and the act and allows the director to enter the permit area for the purpose of conducting inspections until release of the financial assurance;
6. (6) the secretary of environment has provided a written determination stating that the permit applicant has demonstrated that the activities to be permitted or authorized will be expected to achieve compliance with all applicable air, water quality and other environmental standards if carried out as described in the closeout plan; this determination shall address applicable standards for air, surface water and ground water protection enforced by the environment department or for which the environment department is otherwise responsible; the determination shall be made within the 20-day period provided in Subsection H of 19.10.3.304 NMAC, or the requirement is waived.
K. The term of a permit is governed by 19.10.6.607 NMAC. Modifications to a permit are allowed pursuant to 19.10.6.608 NMAC. Annual reports are required for each permit pursuant to 19.10.6.610 NMAC.
[7-12-94, 2-15-96; 19.10.3.304 NMAC - Rn, 19 NMAC 10.2.3.304, 05-15-01; A, 02-28-14; A, 05-31-16]
History of 19.10.3 NMAC:
Pre-NMAC History: Material in this part was derived from that previously filed with the commission of public records - state records center and archives as:
Rule 3, New Mexico Mining Act - Minimal Impact Operations, filed 07-12-94.
History of Repealed Material: [Reserved]
Other History:
Rule 3, New Mexico Mining Act - Minimal Impact Operations, filed 07-12-94, renumbered and reformatted as Subpart 3 of 19 NMAC 10.2, New Mexico Mining Act Implementation, filed 01-31-96.
19 NMAC 10.2, Subpart 3, Minimal Impact Operations, filed 01-31-96 was renumbered and reformatted to 19.10.3 NMAC, effective 05-15-2001.