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FAQ – Mining Act Reclamation Program

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  3. FAQ – Mining Act Reclamation Program

The purposes of the NEW MEXICO MINING ACT OF 1993 include “promoting responsible utilization and reclamation of lands affected by exploration, mining or the extraction of minerals that are vital to the welfare of New Mexico.” The act establishes requirements for a broad range of “hard rock” mines to obtain permits, meet operation and reclamation standards, develop an approved reclamation plan, and post financial assurance to support the reclamation plan.

What is covered?

The act requires all mining operations to obtain permits and meet operation and reclamation requirements. Whether you are or are not subject to the act depends largely on the definitions of mining and minerals in the act. Mining is defined as “the process of obtaining useful minerals from the earth’s crust or from previously disposed or abandoned mining wastes, including exploration, open-cut mining and surface operation, the disposal of refuse from underground and in situ mining, mineral transportation, concentrating, milling, evaporation, leaching and other processing.” Minerals are defined as “a nonliving commodity that is extracted from the earth for use or conversion into a saleable or usable product.”

The following commodities and facilities are declared exempt from the act: “clays, adobe, flagstone, potash, sand, gravel, caliche, borrow dirt, quarry rock used as aggregate for construction, coal, surface water or subsurface water, geothermal resources, oil and natural gas together with other chemicals recovered with them, commodities, byproduct materials and wastes that are regulated by the nuclear regulatory commission” and hazardous waste. Some exemptions are designed to avoid duplicative regulation of a commodity or facility already regulated under a different federal or state law, such as coal, water, oil, gas, hazardous waste and NRC facilities. In the end, the act covers most traditional hard rock and industrial minerals including gold, silver, copper, lead, molybdenum, perlite, zeolite, silica and garnet.

The Mining Act applies not only to all mines operating when the act was passed and to all future mines, but it also covers some mines that were no longer operating at the time the act became law. The definition of “existing mining operation” includes any “operation that produced marketable minerals for a total of at least two years between January 1, 1970 and the effective date of the New Mexico Mining Act.” Therefore, a mine that produced marketable minerals for two years in the 1970s but was shut down by the time the act passed in 1993 is still covered.

Who regulates?

Two government entities are at the center of the Mining Act: the Mining Commission and the Mining and Minerals Division (MMD) of the New Mexico Energy, Minerals and Natural Resources Department (EMNRD). The Mining Commission is charged with developing the rules necessary to implement the Mining Act and hearing appeals of permitting and enforcement actions by MMD. The Mining Commission consists of eleven members, four appointed by the Governor and seven ex officio. The seven ex officio members represent different government entities. The appointed members, consisting of two voting members and two alternates, “shall be chosen to represent and to balance environmental and mining interests.”

What are the requirements?

The requirements for a mining operation under the Mining Act depend on how the operation is classified. The major categories of operations are existing mining operations, new mining operations, and exploration operations. Within each of these categories, there is a subcategory of minimal impact operations. The act provides that reduced requirements should be applied to “operations that have minimal impact on the environment.” Generally, minimal impact mining operations are 10 acres or less in size, and minimal impact exploration operations are 5 acres or less in size.

A permit for an exploration operation is the simplest to obtain. Exploration permits are valid for one year and may be renewed. Exploration operations must reclaim any disturbed areas within two years after completion of the operation.

What are the requirements for "existing" mine permits?

The Mining Act required all existing mining operations to submit a permit application by December 31, 1994, and then submit a “closeout plan” by December 31, 1995. The closeout plan is the core of the existing mine permit. The plan must demonstrate the work to be done to reclaim the permit area “to a condition that allows for the reestablishment of a self-sustaining ecosystem on the permit area following closure, appropriate for the life zone of the surrounding areas.” This reclamation standard must be achieved unless the operator can show that it conflicts with an approved post-mining land use, or can demonstrate that reclamation of an open pit or waste unit “is not technically or economically feasible or is environmentally unsound.” With the closeout plan, an operator must file financial assurance with the Director sufficient to allow the state to hire a third party to complete the closure and reclamation requirements of the permit. An approved existing mine permit applies for the life of the operation.

What are the requirements for "new" mine permits?

The permit application process for a new mining operation is more complex. The application must contain considerable detail both on the nature and impacts of the proposed operation and on the background of the mine owners and operators. The applicant must collect at least 12 months of environmental baseline data on the permit area. The baseline investigation must provide information on (and the permit application must assure that) the operation and reclamation of the facility protect the environment, human health and safety, wildlife, cultural resources, and hydrologic balance. The Mining Commission rules require that a new mining operation employ best management practices which include designing the operations to avoid or minimize acid drainage and other impacts to ground and surface water; addressing impacts to soil, plant communities and wildlife; controlling erosion; and using contemporaneous reclamation when practicable.

The Director cannot issue a new mining permit unless he or she can find that the activities to be permitted meet environmental standards; that the reclaimed operation will achieve “a self-sustaining ecosystem appropriate for the life zone of the surrounding areas” unless conflicting with a post-mining land use (no other waivers allowed); that the proposed reclamation is economically and technically feasible; and that all environmental requirements can be met without perpetual care. In addition, the operator or owners cannot fail any of the bad actor tests established under the act and the rules. A new mine permit has a maximum term of 20 years with 10-year renewal periods.

What is the role of the public?

The New Mexico Mining Act provides substantial opportunities for the public to participate in the major actions. Public notice is required on applications for the issuance, renewal, or revision of permits; for variance or standby requests; and for the release of financial assurance. The act requires that notice be provided in several manners, including mailing to all property owners within a half mile of the operation, to local governments, and to those citizens on lists maintained by MMD; posting in four conspicuous places including the facility entrance; and publishing a notice in a local newspaper. The notice provides citizens with an opportunity to comment on the proposed action and to request a public hearing.

Any person who is adversely affected by any order, penalty assessment or permit action taken by the MMD Director can appeal to the Mining Commission. The Commission will then conduct an evidentiary hearing on the appeal. The Commission decision can be appealed to the District Court.

Finally, the Mining Act is unique among New Mexico environmental statutes in allowing a “citizen suit.” A citizen with an adversely affected interest can sue any person who allegedly violated any rule, order, or permit issued under the act, or sue EMNRD, the Environment Department, or the Mining Commission for violating the act or for failing to perform any non-discretionary duty under the act. A citizen suit cannot be commenced if the agencies have undertaken and are “diligently prosecuting” an enforcement action.